Sanders v Scalabrini Village Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sanders v Scalabrini Village Ltd [2023] NSWPIC 338
APPLICANT:	Ricarda Sanders
RESPONDENT:	Scalabrini Village Limited
Member:	Gaius Whiffin
DATE OF DECISION:	12 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injuries; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records; claim correspondence, documents lodged in previous proceedings before the Personal Injury Commission (Commission), as well as other factual material; consideration of whether the applicant is estopped by reason of the principle in Port of Melbourne Authority v Anshun Pty Limited from pursuing her claim before the Commission for a lump sum pursuant to section 66 in relation to her psychological injury, as the claim was allegedly not raised in the previous proceedings before the Commission; Geary v UPS Pty Limited, Secretary, Department of Communities and Justice v Miller & Anor (No 5), Woolstar Pty Limited v Wood, Fourmeninapub Pty Limited v Booth, Habib v Radio 2UE Sydney Pty Limited, Johnson v Gore Wood & Co, Thompson v George Weston Foods, Henderson v Henderson andBruce v Grocon Limited considered; consideration of what is the deemed date of injury for the purpose of the applicant’s lump sum claim pursuant to section 66 if she is not estopped from pursuing that claim, Stone v Stannard Bros Launch Services Pty Limited, GIO Workers Compensation (NSW) Limited v GIO General Limited and Alto Ford Pty Limited v Antaw considered; Held – the applicant is not estopped from pursuing her claim before the Commission for a lump sum pursuant to section 66 in relation to her psychological injury; the deemed date of injury in relation to the applicant’s claim for a lump sum pursuant to section 66 in relation to her psychological injury is 10 June 2021; the determination of the applicant’s whole person impairment as a result of her injury will be remitted to the President of the Commission for referral to a Medical Assessor.
determinations made:	The Commission determines: 1. The applicant is not estopped from pursuing her claim before the Personal Injury Commission (Commission) for a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to her psychological injury. 2. The deemed date of injury in relation to the applicant’s claim for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury is 10 June 2021. The Commission orders: 1. I remit the matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 10 June 2021 (deemed); (b) body systems/parts: psychiatric and psychological disorders; (c) method of assessment: whole person impairment, and (d) type of injury: disease injury pursuant to s 4(b)(ii) of the 1987 Act - being the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, where the employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the respondent’s Application to Admit Late Documents dated 4 May 2023 and attached documents; (d) the respondent’s Application to Admit Late Documents dated 26 May 2023 and attached documents; (e) the applicant’s Application to Admit Late Documents dated 29 May 2023 and attached documents, and (f) this Certificate of Determination together with its accompanying reasons.

STATEMENT OF REASONS

BACKGROUND

Ricarda Sanders (the applicant) is 64-years-old and commenced employment as a registered nurse on 8 January 2018 with Scalabrini Village Limited (the respondent).
The applicant alleges that she sustained a psychological injury due to events which occurred during the course of her employment with the respondent. She also alleges that due to this injury, she has been incapacitated for employment since 18 May 2020, which was the last date when she worked for the respondent.
The respondent initially accepted provisional liability for the applicant’s psychological injury, and made weekly compensation payments to her as well as paying her expenses in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act), until December 2020.
When the respondent ceased making these payments, the applicant lodged proceedings (the first proceedings) with the Personal Injury Commission (Commission) on 14 May 2021. Those proceedings eventually resolved by means of consent orders incorporated within a Certificate of Determination from the Commission dated 3 September 2021. The claims made in the proceedings as well as the orders made in the Certificate Determination only referred to the applicant’s entitlements to weekly benefits compensation and expenses in accordance with s 60 of the 1987 Act.
Subsequent to the lodging of the first proceedings, the applicant also made a formal claim upon the respondent for compensation pursuant to s 66 of the 1987 Act in relation to the psychological injury. There is a dispute as to when that claim was made. The claimed compensation was initially for 22% whole person impairment as a result of the injury. The claim relied upon medical evidence from Dr Suman in this regard.
On 23 February 2022, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim pursuant to s 66 of the 1987 Act. The notice advised the respondent’s position that the applicant was precluded from bringing the claim pursuant to s 66 of the 1987 Act as “the evidence upon which you rely was available, and not disclosed, in earlier proceedings”, and as “your workers compensation was necessarily decided” in the earlier proceedings. The respondent relied upon the principles of res judicata, and estoppel as outlined in Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 (Anshun). The respondent then confirmed its position in a further notice pursuant to s 78 of the 1998 Act dated 1 February 2023.
By an Application to Resolve a Dispute (ARD) filed in the Commission, the applicant claims compensation pursuant to s 66 of the 1987 Act in relation to her psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are as follows:
(a) is the applicant estopped by reason of the principal in Anshun (Anshun estoppel) from pursuing her claim before the Commission for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury, and
(b) if the respondent’s argument in relation to issue (a) fails, what is the deemed date of injury for the purpose of the applicant’s lump sum claim pursuant to s 66 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was listed for conciliation/arbitration before the Commission on
19 April 2023. On that occasion, Mr Craig Tanner of counsel appeared for the applicant, instructed by Ms Coleman. The applicant was present and was supported by her daughter, Ms Tayong. Mr Lachlan Robison of counsel appeared for the respondent, instructed by
Ms Walsh, and Ms Gagic was also present representing the interests of the respondent’s insurer.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The first issue to be determined (see paragraph 8 above) was agreed upon, and it was also agreed that if I determined that issue in favour of the applicant, the dispute would be referred to Medical Assessment with the body system to be assessed noted to be psychiatric and psychological disorders, and with it specifically being noted in the referral that the referral was in relation to a ‘disease’ injury pursuant to s 4(b)(ii) of the 1987 Act. It was further agreed that all documents in evidence before me would be referred to the Medical Assessor. The deemed date of injury to be noted in the referral was not agreed upon.
If I determined the first issue for determination in favour of the respondent, it was agreed that I would dismiss these proceedings, which I considered to be the appropriate order pursuant to s 54 of the Personal Injury Commission Act 2020 (the 2020 Act) as the proceedings would then be “frivolous or vexatious or otherwise misconceived or lacking in substance”.
As a preliminary matter, the respondent confirmed that it was no longer relying upon the principle of res judicata in order to decline the applicant’s claim pursuant to s 66 of the 1987 Act. It was not disputing that she had sustained a psychological injury in accordance with
s 4(b)(ii) of the 1987 Act, only that Anshun estoppel prevented her from pursuing a claim pursuant to s 66 of the 1987 Act in relation to that injury.
Two other preliminary matters then emerged:
(a) the applicant sought to amend the ARD to allege that the deemed date of injury for the purpose of her claim pursuant to s 66 of the 1987 Act was 6 September 2022, rather than the date pleaded of 18 May 2020 - the application was formally opposed by the respondent but the respondent conceded that it would not be prejudiced by the amendment if it was allowed time to prepare written submissions addressing the date it argued to be the correct deemed date of injury for the purpose of the claim pursuant to s 66 of the 1987 Act - in those circumstances, I allowed the amendment and recorded (with the agreement of the parties) the second issue that I needed to determine (see paragraph 8 above) - I considered that the determination as to the correct deemed date of injury was essential to the Commission being able to refer the dispute to Medical Assessment (if the applicant was not estopped from bringing her claim) and that the amendment sought by the applicant should therefore be allowed as it would facilitate the just, quick and cost effective resolution of the real issues in dispute (the guiding principle of the Commission in accordance with s 42 of the 2020 Act) and as the Commission would then be acting “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (in accordance with s 43 of the 2020 Act), and

(b) the respondent called for documents from the applicant’s solicitors’ file evidencing advices provided to her, arguing that it was forensically entitled to examine them due to the applicant’s reliance upon an affidavit sworn by Mitchell Hajje (solicitor) - the applicant argued that the respondent should have requested these documents earlier, but conceded that they were available (although not part of the applicant’s solicitors’ file brought to the Commission for the conciliation/arbitration) - I considered that the applicant was not prejudiced by the respondent’s call, especially as the arbitration hearing in the dispute was not going to conclude on 19 April 2023, due to the respondent being allowed to prepare written submissions following the applicant’s amendment to the ARD (see paragraph 14(a) above) - I also considered that the documents would be likely to assist me in the determination of the real issues in dispute, and especially in providing more clarification of the issues deposed to by Mr Hajje - in my opinion, the production of the documents would facilitate the just, quick and cost effective resolution of the real issues in dispute (the guiding principle of the Commission in accordance with s 42 of the 2020 Act), and in ordering their production, the Commission would be acting “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (in accordance with s 43 of the 2020 Act).

In order to progress the hearing of the dispute, I determined to hear oral submissions from both the applicant and respondent on 19 April 2023. I then issued a direction covering the production of the documents from the applicant’s solicitors’ file (“all advices provided to her by them or advices provided to them, including file notes evidencing such advices”) called for by the respondent, covering the lodging and admission of any applications to admit late documents that either party wished to make, and covering the lodging of subsequent written submissions by both parties.
I advised that I would determine the dispute after the timetable had been complied with.
As it turned out, both parties lodged applications to admit late documents and/or written submissions that were not referred to in the timetable. I therefore convened a further preliminary conference on 2 June 2023. There was no objection on that occasion from either party regarding the admission of any application to admit late documents, and I therefore admitted all applications to admit late documents lodged. There was also no objection on that occasion to all submissions lodged by the parties being read by me. There was further an indication on that occasion by both parties that no further written submissions or evidence were sought to be lodged.

EVIDENCE

Documentary evidence

As a result, the following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the respondent’s Application to Admit Late Documents dated 4 May 2023 (respondent’s first AALD) and attached documents (admitted in accordance with the direction that I made on 19 April 2023 as no objection to the admission of those documents was made by the applicant prior to 15 May 2023);
(d)    the respondent’s Application to Admit Late Documents dated 26 May 2023 (respondent’s second AALD) and attached documents (admitted in accordance with the direction that I made during the preliminary conference on 2 June 2023), and
(e)    the applicant’s Application to Admit Late Documents dated 29 May 2023 (applicant’s AALD) and attached documents (admitted in accordance with the direction that I made during the preliminary conference on 2 June 2023).

Oral evidence

There was no oral evidence given by the applicant or any other witness at the arbitration hearing.

Applicant’s evidence

A great deal of the evidence attached to the ARD comprised medical and other evidence with little relevance to the limited issues that I need to determine. I have considered all the evidence but will be concentrating upon the evidence that I find to be relevant to those issues, or the evidence that I am referred to in the parties’ submissions.

From the evidence in the ARD, the following chronology can be accepted:
(a)    the applicant commenced her employment with the respondent on 8 January 2018 - from her statement dated 14 May 2021 (at page 3);
(b)    as a result of incidents which occurred during the course of her employment with the respondent, the applicant developed psychological symptoms and sought psychological treatment - from her statement dated 14 May 2021 (at page 3);
(c)    the applicant last worked for the respondent on 18 May 2020, and has not worked since - from her statement dated 14 May 2021 (at page 3);
(d)    a worker’s injury claim form (at page 45) was signed by the applicant on 16 June 2020 and lodged with the respondent - in the claim form, the applicant alleges a psychological injury (anxiety disorder) and states:
“Nature and conditions of my employment resulted in me suffering a psychiatric response. I have been bullied and harassed over a period of time and I was also unreasonably managed by my employer and this caused me to suffer panic attacks and eventually be admitted into the Royal North Shore hospital on 16 May 2020”;
(e)    liability for the applicant’s claim was initially accepted on a provisional basis by the respondent until it was disputed, resulting in the applicant not receiving workers compensation entitlements after December 2020 - from her statement dated 14 May 2021 (at page 3);
(f)    the applicant’s solicitors arranged for her to be assessed by Dr Suman (psychiatrist) on 18 February 2021 – following that assessment, the doctor produced two reports:
(i)a 10 page report dated 9 March 2021 (at page 92) (Dr Suman’s first report) in which inter alia the doctor records the history that he obtained from the applicant, records his review of relevant documentation, records his findings on mental state examination, provides his summary, and provides his answers to a number of questions asked by the applicant’s solicitors (specifically regarding causation of the applicant’s psychological condition, the level of her incapacity as a result of the condition, and her need for treatment in relation to the condition), and
(ii)a 3 page report also dated 9 March 2021 (at page 102) (Dr Suman’s second report) in which the doctor provides an assessment of 22% regarding the applicant’s whole person impairment as a result of the psychological condition;
(g)    the applicant then lodged the first proceedings with the Commission - this is referred to in an undated affidavit from Mitchell Hajje, (at page 30) but no other specific details or documentation regarding the proceedings and their outcome is included in the ARD;
(h)    the applicant signed a permanent impairment claim form on 9 November 2021 (at page 53) in which she alleged that her psychological injury had caused her 22% whole person impairment in accordance with Dr Suman’s second report - the claim form refers to both Dr Suman’s first report and Dr Suman’s second report being attached to it;
(i) the respondent issued a notice pursuant to s 78 of the 1998 Act dated
23 February 2022 (at page 56) denying liability for the applicant’s claim pursuant to s 66 of the 1987 Act;
(j)    the applicant’s solicitors arranged for her to be re-assessed by Dr Suman on
22 July 2022 – the doctor then produced a report dated 22 July 2022 (at page 105) (Dr Suman’s third report) in which the doctor now provides an assessment of 23% regarding her whole person impairment as a result of her psychological condition;
(k)    the applicant’s solicitors wrote a letter to the respondent’s solicitors dated
6 September 2022 (at page 65) enclosing a copy of Dr Suman’s third report and advising that they were “instructed to update our claim for lump sum compensation” to a claim regarding 23% whole person impairment;
(l)    the respondent’s solicitors wrote a letter to the applicant’s solicitors dated
19 September 2022 (at page 66) advising that they required the applicant to attend a medico-legal examination with Dr Roberts on 1 December 2022, and
(m) the respondent issued a further notice pursuant to s 78 of the 1998 Act dated
1 February 2023 (at page 61) maintaining their denial of liability for the applicant’s claim pursuant to s 66 of the 1987 Act.
The applicant relies upon an undated affidavit sworn by a solicitor, Mitchell Hajje (page 30 of the ARD). In the affidavit, the solicitor deposes that he was the solicitor for the applicant in the first proceedings. He also deposes that his former employee (Andra Youkhana) first received instructions from the applicant on 12 June 2020. He further deposes that he obtained Dr Suman’s first report and Dr Suman’s second report on 9 March 2021, and then:
“In accordance with the Applicant’s instructions that she continued to suffer from financial hardship and required urgent medical treatment, I decided to challenge the insurer’s decision pursuant to Section 78 Notice issued on 1 December 2020 and proceed to the Personal Injury Commission in relation to the claim for weekly compensation benefits and payment for medical treatment expenses only…The Applicant was advised at the time not to proceed with a permanent impairment claim because it would delay the claim further for at least another 4 months while the insurer arranged to have her assessed and determine that part of the claim…I was instructed at the time that the Applicant was not in a financial position to have her claim further delayed.”

Mr Hajje deposes to the applicant regularly contacting his office and threatening to instruct alternative solicitors if there was no progress with her claim. He confirms that he initially only served Dr Suman’s first report upon the respondent, advising that:
“At all times, I intended to serve Dr Suman’s WPI report once liability had been determined with respect to the Applicant’s claim and once the Applicant was in a financially secure position and receiving mental health support.”

Respondent’s evidence

Some of the evidence attached to the Reply also comprises medical and other evidence with little relevance to the limited issues that I need to determine. I have considered all the evidence but will be concentrating upon the evidence that I find to be relevant to those issues, or the evidence that I am referred to in the parties’ submissions.
The Reply is helpful in providing documentation regarding the first proceedings, which was missing from the ARD. From that documentation, it can be accepted:
(a)    the first proceedings were commenced by an Application to Resolve a Dispute (at page 1) that was dated 14 May 2021 - the application only claimed “weekly benefits compensation” and “medical, hospital or related expenses” - among the documents attached to the application was Dr Suman’s first report, but not
Dr Suman’s second report;
(b)    the respondent lodged a Reply (at page 10) in the first proceedings dated
7 June 2021 – the Reply denied that the applicant had suffered a psychiatric or psychological injury and also put in dispute the applicant’s level of incapacity and her need for reasonably necessary medical treatment – the Reply attached a large number of employment documents but only one medical report (being a report from Dr Roberts dated 20 July 2020 – I am not aware of the contents of that report as it is not in evidence before me);
(c)    the applicant lodged an Application to Admit Late Documents (at page 18) in the first proceedings dated 6 July 2022 [sic – 2021] – the application only included an updated certificate of capacity and an affidavit of Mitchell Hajje;
(d)    the respondent lodged an Application to Admit Late Documents (at page 21) in the first proceedings dated 31 August 2021 – the application included some clinical records from Dr Brown and a further report from Dr Roberts dated
30 July 2021 (I am not aware of the contents of that report as it is not in evidence before me), and
(e)    the Commission issued a Certificate of Determination (at page 26) in the first proceedings dated 3 September 2021.
The Application to Resolve a Dispute in the first proceedings pleaded a ‘personal’ injury as occurring on 18 May 2020 with the following injury description:
“Description: The nature and conditions of the worker’s employment resulted in a psychological injury. The worker has been bullied and harassed over a period of time and she was unreasonably treated and managed by my employer. We refer you to the enclosed statement of worker for further details in respect of same.”
It is relevant to note that the ARD before me pleads a ‘disease’ injury as occurring on 18 May 2020 with the following injury description:
“The Applicant sustained a psychological injury due to the toxic nature and conditions of the workplace. The circumstances and the events that caused our client to suffer psychological injury during her employment with the Respondent is set out in her statements, attached to this application.”
The applicant’s statement dated 14 May 2021 is then attached to both applications.
The Certificate of Determination in the first proceedings made four orders with the “consent of the parties”, being:
“1. Grant leave to amend the Application to Resolve a Dispute to plead 18 May 2020 (deemed date) as the date of injury.
2. The Applicant sustained psychological injury as alleged, and as defined in s 4(b)(ii) of the Workers Compensation Act 1987.
3. Award of weekly compensation at the rate of $1,200 per week in respect of the period 16 December 2020 to 4 May 2021 (agreed to total $24,000), pursuant to s 37 of the Workers Compensation Act 1987, with an award for the Respondent thereafter in respect of the claim for weekly compensation.
4. Pursuant to section 60, the Respondent is to pay the Applicant’s reasonably necessary medical and related treatment expenses incurred up to 30 March 2021, up to a maximum total of $3,000, with an award for the Respondent otherwise and thereafter in respect of the claim pursuant to section 60.”
The Certificate of Determination also made the following four notations:
“A. The Applicant agrees and admits that she has recovered from her injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a psychological or psychiatric disorder and no longer suffers from the effects of that injury.
B. The Applicant agrees and admits that upon payment of the amounts referred to in orders 3 and 4 above, she will have received all of her entitlements to weekly compensation and medical and related treatment expenses pursuant to the Workers Compensation Act 1987.
C. The Applicant agrees and admits that she suffers no ongoing economic incapacity and requires no further medical treatment as a result of her injury.
D. On or before 10 September 2021, the Applicant agrees to tender her resignation of
employment with the Respondent, effective from the date of these Consent Orders.”
The other relevant documentation in the Reply comprises:
(a) an email from the respondent’s insurer to the applicant’s solicitors dated
31 January 2022 (at page 28) - requesting that they “forward through the claim documents listed on the s66 claim”, and
(b) reliance upon the respondent’s notice pursuant to s 78 of the 1998 Act dated
23 February 2022 (at page 56 of the ARD) - in which it is stated that the applicant’s permanent impairment claim form dated 9 November 2021 was initially sent on 10 November 2021 and also subsequently sent on 17 January 2022 both to a “generic email address” and therefore not received by the respondent until further copies of the claim form and its attached medical reports were provided to the respondent on 1 February 2022.
The respondent also relies upon documentation from the applicant’s solicitors’ file provided to it pursuant to the direction that I made on 19 April 2023. The documentation was sent to the respondent by letter dated 2 May 2023 (page 1 of the respondent’s first AALD) and seems to have been incorporated in its entirety in the respondent’s first AALD. Much of the documentation refers to events which occurred and advice that was given after the settlement reached in the first proceedings, and I do not find that documentation to be particularly relevant to the issues that I need to determine. I will not be referring to it unless directed to it during the parties’ submissions.
Otherwise, the first advice given by the applicant’s solicitors that I find to be relevant was given on 9 July 2021, when the first proceedings were initially listed for conciliation/arbitration. The conciliation/arbitration was eventually adjourned on that date apparently due to the applicant becoming “highly stressed and emotional”. The applicant was represented by Mr Bruce McManamey of counsel, as well as a solicitor (Andra Youkhana).
Ms Youkhana relevantly prepared a file note (at page 23 of the respondent’s first AALD) in which she noted:
“Counsel indicated that the other side are interested in discussing settlement for closed periods.
May be best to seek an award for A to protect her position in respect of bringing PI claim
Advised counsel that we lodged a PI claim as she has been assessed at 22%
Counsel suggested we don’t follow up response from other side on PI claim until current proceedings are resolved.”
A conference was then held between the applicant, her daughter, Mr McManamey, and
Ms Youkhana on 14 July 2021, which is the subject of a file note prepared by Ms Youkhana on that date (at page 25 of the respondent’s first AALD). The applicant advised that “she wanted a lump sum” and she was told that proceedings could not simply be issued seeking a lump sum as liability needed to be established first. It was confirmed to her that her current claim was for “weeklies and medicals” and that if “they pay us something for weeklies, liability is resolved and we can make a claim for lump sum”. Instructions were then obtained from the applicant to “proceed with offer to settle for closed period of weeklies”.
The advice given to the applicant on 14 July 2021 was then confirmed with her by way of an email to her from Andra Youkhana on that date (at page 27 of the respondent’s first AALD). It was confirmed that “in order to bring a lump sum claim, liability must be established first”, and that in order to bring that claim, “we will have to overcome the defence raised by your employer” in the current claim for weekly compensation benefits and medical expenses. The applicant’s instructions to “proceed with an offer to settle for a closed period of weekly payments and an award in your favour” were confirmed, and the applicant was also advised “such award would resolve the liability argument without having to proceed to Arbitration”. The applicant was further advised that there was a risk in proceeding to an arbitration hearing with her current claim as there was “no assurance that a favourable outcome will be achieved”, and as there were “some areas of concern with the case”.
It seems that there were then some negotiations between the parties regarding reaching a settlement in the first proceedings. The proceedings were listed for a teleconference before the Commission on 3 September 2021, and Ms Youkhana prepared a file note on
6 September 2021 regarding that teleconference (at page 37 of the respondent’s first AALD). A settlement was reached in the proceedings at the teleconference, but there were some negotiations regarding the notations to be recorded by the Commission. The wording of the notations was eventually agreed upon by the applicant, following advice given to her by
Mr McManamey and Ms Youkhana, which is recorded in the file note as follows:
“We discussed the above with the client as follows:
- Other side offered 24k of closed period of weeklies
- The proposed negotiations will not affect your ability to bring lump sum claim.
- Counsel being overly cautious however it has no effect
- Not an order or a finding by the PIC
- If we run this, highly likely we will lose on 11A
- Need to be over 15% for PI claim. you are already
- If determined 15% by PIC, can bring WID claim
- Notation 6 has no effects on WID claim
- They agreed that injury arose from course of employment
- The notation will not be looked into when PI claim is brought or WID claim is
commenced
- Assessors look into materials re injury
- The notations are for the insurer as they are conceding liability for injury
- The offer settles the issue of injury as we are now able to bring PI without having to
argue liability
- Can do WID
Client understood the above and provided her instructions to accept the other side’s offer and settle – payment of 24k in weeklies among other terms”.
The applicant signed a settlement authority on 7 September 2021 (at page 39 of the respondent’s first AALD), which included the following:
“8. I have been previously advised on the risks associated with running this matter to
Arbitration. I was again advised that is it highly likely I will not be successful in
overcoming the insurer’s defence of section 11A of the Worker Compensation Act
1987.
9. I understand that this offer will be in full and final settlement of my weekly compensation and medical expenses. I do not have a continuing entitlement to those benefits nor has there been a decision to accept liability for ongoing payments or treatment.
10. I understand that the above offer indicates that the insurer concedes injury and liability for same. I understand that this allows me to be assessed for Whole Person Impairment and bring a statutory lump sum claim.”
Mr McManamey then provided his post-settlement advice dated 15 September 2021 (at page 41 of the respondent’s first AALD). He confirms inter alia:
(a) in his view, there was a significant chance of the respondent’s defence pursuant to s 11A of the 1987 Act being successful in the first proceedings, and
(b) the settlement of the first proceedings created an estoppel in favour of the applicant “in respect of injury”, which allowed her to now pursue a permanent impairment compensation claim.
The documentation from the applicant’s solicitors’ file also includes a permanent impairment claim form signed by the applicant on 8 June 2021 (at page 19 of the respondent’s first AALD) together with an email (at page 22 of the respondent’s first AALD) from Ms Youkhana to Indira Chamakuri dated 10 June 2021 saying:
“Dear Sir/Madam,
We refer to the above claim.
Please find attached:
1. Permanent Impairment Claim Form; and
2. Medico-Legal Report of Dr Aman Suman dated 9 March 2021.
Please advise if you agree with Dr Suman’s opinion in respect of the WPI threshold or provides us with your options for an IME.
Kind regards”
The subject matter of the email refers to the applicant and correctly identifies her claim number with the respondent’s insurer. Indira Chamakuri was a claims specialist with the respondent’s insurer, at least as at 12 August 2020 when an investigative report was emailed to her by Claims Investigation Pty Limited in the applicant’s claim. It would seem however from the insurer’s subsequent actions that it was not aware of the claim pursuant to s 66 of the 1987 Act made by the email. The insurer was still requesting a permanent impairment claim form and supporting medical evidence when it emailed the applicant’s solicitors on
31 January 2022 (see paragraph 29 above).
What does seem to me to be clear however is that Ms Youkhana considered that the applicant’s claim pursuant to s 66 of the 1987 Act had been made prior to the initial conciliation/arbitration in the first proceedings on 9 July 2021. She mentions this in the file note, referred to at paragraph 32 above.
This is inconsistent with the affidavit evidence of Mitchell Hajje (see paragraphs 22-23 above) that the applicant was advised not to proceed with the claim pursuant to s 66 of the 1987 Act “at the time” and that he only intended to serve Dr Suman’s second report upon the respondent “once liability had been determined”. In fact, Ms Youkhana’s 10 June 2021 email reveals an intention directly the opposite to Mr Hajje’s evidence.
I also note that the documentation from the applicant’s solicitors’ file included in the respondent’s first AALD does not include:
(a)    any file notes or other documentation confirming the advice given to the applicant or the instructions provided by her prior to the commencement of the first proceedings, and indeed prior to the 10 June 2021 email from Ms Youkhana to Ms Chamakuri;
(b)    any file notes or other documentation regarding the applicant’s regular contact with her solicitors and her threats to instruct alternative solicitors, deposed to by Mr Hajje, and
(c)    any file notes or other documentation confirming the applicant’s precarious financial position, deposed to by Mr Hajje.
In these circumstances, I do not find Mr Hajje’s affidavit evidence to be reliable. I also note that his affidavit was undated.
It seems to me that Ms Youkhana was the solicitor with conduct of the applicant’s claim at the time of the first proceedings, and although she apparently no longer works with the applicant’s solicitors, attempts should have been made to obtain affidavit evidence from her.
I certainly intend to rely upon her file notes and emails, rather than Mr Hajje’s affidavit, in explaining the advice given to the applicant by her solicitors and the instructions provided by her to them.
The respondent’s second AALD contains (at page 1) an “automatic reply” email from Indira Chamakuri to Brigitta Green (in relation to whom there is no evidence as to her identity) dated 7 June 2021 in which it is advised by Ms Chamakuri that “I am of the office and my emails will not be monitored”.
The applicant’s AALD seems to have been lodged in response to the respondent’s second AALD. It contains:
(a) (at page 2) an “automatic reply” email from Indira Chamakuri to Andra Youkhana dated 10 June 2021, reading:
“Please be advised that I am of the office and my emails will not be monitored. Please contact 1300 110 442 and [email protected] for any urgent queries you may have”, and
(b) (at page 3) a ‘LinkedIn’ summary for Indira Chamakuri revealing that she had been employed as a claims specialist by the respondent’s insurer from December 2019 to the date when the summary was printed three years six months later.

Respondent’s submissions

As the respondent bore the onus of proving that the applicant was precluded from pursuing her claim under s 66 of the 1987 Act by reason of Anshun estoppel, I asked it to submit first. It had already lodged brief written submissions dated 7 March 2023, and it made oral submissions at the arbitration hearing on 19 April 2023, before providing further written submissions (in accordance with my direction on 19 April 2023) dated 5 May 2023 and additional written submissions dated 26 May 2023 (which I agreed to read following the preliminary conference on 2 June 2023).
In the written submissions dated 7 March 2023:
(a)    the respondent conceded that it bore the onus of proving the Anshun estoppel defence;
(b) the respondent conceded that it had to establish that the applicant’s claim pursuant to s 66 of the 1987 Act “was so closely related to the earlier proceedings that it would reasonably have been expected to have been raised”;
(c)    the respondent drew the Commission’s attention to authorities that had previously discussed the application of Anshun estoppel in workers compensation claims, namely Geary v UPS Pty Limited [2021] NSWPICPD 47 (Geary), Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller No 5), Woolstar Pty Limited v Wood [2022] NSWPICPD 25 (Wood), and Fourmeninapub Pty Limited v Booth [2019] NSWWCCPD 25 (Fourmeninapub), and
(d)    the respondent concluded:
“The claim for lump sum compensation ought to have been agitated in the original proceedings. It was unreasonable for the Applicant not to rely on the medical evidence in its possession in the original proceedings and to bring the claim for lump sum compensation at that time”.
In oral submissions on 19 April 2023, the respondent described the applicant’s claim pursuant to s 66 of the 1987 Act as:
“a textbook example of an Anshun case, particularly because there is a deliberate severance of the claim which is litigated where a party has evidence available for deployment of all aspects of her case, where she had the benefit of legal advice, and where she evidently makes a conscious decision to resolve only part of the claims which were available to her, and then, to aggravate the unfairness to the respondent, enters into consent orders making notations, the clear imputation of which is that the matter is over”.
The respondent submitted that the practice of hiding whole person impairment assessments is no longer acceptable.
The respondent submitted that when the current ARD and the ARD in the first proceedings were compared, there was no suggestion that the level of the applicant’s treatment had changed. The applicant’s statements and the reports from Dr Suman essentially reveal that the applicant’s current condition is not significantly different to her condition when the first proceedings were lodged. The description of injury in the current ARD is essentially the same as the description of injury in the ARD in the first proceedings.
When it was put to the respondent by the Commission that in fact there was a difference of 1% in the whole person impairment assessments referred to in Dr Suman’s third report compared with his second report, the respondent submitted that the “additional percent is because of the period of time and the allocation of 1% for treatment being provided – there is no actual change in the level of her impairment per se”. Then, when it was put to the respondent by the Commission that there was a monetary difference between the assessments, the respondent submitted that it “would not accept that that difference permits the claims being split”. There was always a chance “that an injury gets better or worse at some point in time”.

The respondent was especially critical of the affidavit evidence of Mitchell Hajje (see paragraphs 22-23 above), emphasising:
(a) his deliberate decision to advise the applicant not to proceed with the claim pursuant to s 66 of the 1987 Act as it would delay the applicant’s other claims - the respondent arguing that this would not have been the case as there was a six-month period between when Dr Suman’s second report was received and when the Certificate of Determination in the first proceedings was issued;
(b)    his decision to only tender one of Dr Suman’s reports in the first proceedings - “what you are doing as a party is saying to both the Tribunal and your opponent, ‘this is the opinion of X’ when it is not – it is part of the opinion of X and that is the whole reason why this practice needs to be discouraged in the strongest of terms”;
(c)    “it is a complete waste of resources to sever a claim”;
(d)    there is a causal link between his decision to withhold evidence and the manner in which the first proceedings were resolved, and
(e) he took an “unfair advantage of the insurer” by making a forensic decision to “lock in liability” and then proceed with the claim pursuant to s 66 of the 1987 Act.
The respondent then took the Commission to the Certificate of Determination in the first proceedings and submitted that there was a lack of fairness in arriving at the orders and notations (including admissions made by the applicant) agreed. It was submitted that the admissions were made “to lure the respondent into paying this claim in total ignorance of the pending larger claim”. The respondent however conceded that there was no evidence before the Commission from it as to its thought processes when the orders and notations were agreed. When it was then put to the respondent by the Commission that it was hard to accept that the respondent (at the time of the resolution of the first proceedings) would not have been aware of the applicant’s potential entitlement to make a claim pursuant to s 66 of the 1987 Act, the respondent answered by submitting that “you would presume that the applicant’s legal representatives would act appropriately”.
A lengthy discussion then followed between the Commission and the respondent regarding how any inappropriate actions by the applicant’s solicitors would affect the application or otherwise of an Anshun estoppel. The respondent submitted that the actions needed to be looked at in the context of the reasonableness of the applicant “splitting” her claims. The respondent conceded that workers compensation entitlements were ongoing entitlements and it was possible for an applicant to have many proceedings before the Commission, but:
“where the evidence is available to seek more than one form of compensation as it clearly was here, because there is two reports of the same date, that is where there is no distinction between what would occur in a common law court and an administrative tribunal.”
The respondent was then questioned by the Commission as to why it was unreasonable for the claim pursuant to s 66 of the 1987 Act to be omitted from the first proceedings when as at the date when the proceedings were commenced (14 May 2021), that claim could not have been included in the proceedings as the necessary pre—litigation procedures under the 1987 Act applicable to such claims had not commenced. The respondent submitted “the test is actually a matter of raising claims, not litigating claims to be precise”. The withholding of
Dr Suman’s second report and the lack of its inclusion in the ARD in the first proceedings meant that the claim pursuant to s 66 had not been raised – “when you have a whole person impairment assessment literally in your hand and you put it in the back pocket and not attach it to the ARD, that is not acceptable”.
The respondent later submitted, following the applicant’s oral submissions on 19 April 2023, that even if the applicant could not include her claim pursuant to s 66 of the 1987 Act in the first proceedings (when they were lodged) due to the necessary pre—litigation procedures required with that claim, “there was time to make that claim by the time that matter was settled”.
In the written submissions dated 5 May 2023, the respondent reviewed the documentation from the applicant’s solicitors’ file that had by then been produced to it. It specifically referred to the documentation outlined at paragraphs 33-37 above, and summarised:
“The inescapable conclusion from the above is that the applicant, with the benefit of legal advice from solicitor and counsel, made the conscious decision to settle a weak case on liability on a compromised basis, to, as it were lock in, liability, only to return with a lump sum claim and intended work injury damages claim which she knew, as of that settlement, was available to her but did not ‘raise’. It must be borne in mind that the test in Anshun is not whether a party should have sued for a right in the prior action, but whether she raised such an action. See, inter alia, para [9] of the joint judgment of Gibbs CJ, Mason and Aikin JJ.”
The respondent also pointed out that the documentation from the applicant’s solicitors’ file did not contain any material suggesting that either delay or financial necessity were factors considered when the first proceedings were lodged with the Commission without any claim being made in them pursuant to s 66 of the 1987 Act.
In the written submissions dated 26 May 2023, the respondent referred to the applicant’s written submissions dated 24 May 2023. It conceded that there is no legislative requirement to make all claims for compensation simultaneously, but rather the requirement derives from the common law per Anshun. Further, “to the extent that there is a culture in this Commission that supports bringing one claim to the exclusion of another without penalty, should such a culture exists, it is predicated on a myth that this is legally permissible”.
The respondent then discussed the email (see paragraph 38 above) from the applicant’s solicitors on 10 June 2021 to Indira Chamakuri that is alleged to have formally made the applicant’s claim pursuant to s 66 of the 1987 Act and referred to it as a “red herring”, considering:
(a)    it was not disclosed or lodged in the first proceedings;
(b)    it was not sent to the respondent’s solicitors despite the fact that they had lodged a Reply in the first proceedings on 7 June 2021;
(c)    it was sent to an ex-employee of the respondent’s insurer;
(d)    the respondent and its insurer were not aware of it until the applicant’s solicitors’ file was produced in these proceedings, and
(e)    the sending of an email making a claim “would still not have had the effect of having raised the claim in the proceedings” - necessary according to Anshun.
Finally, in relation to the deemed date of injury to be determined with respect to the applicant’s claim pursuant to s 66 of the 1987 Act, the respondent sought to distinguish the decision in Stone v Stannard Bros Launch Services Pty Limited [2004] NSWCA 277 (Stone) on its facts. The respondent referred to s 16(1)(a) of the 1987 Act and submitted that the first date of incapacity for work (being 18 May 2020 in accordance with the Certificate of Determination in the first proceedings) should be considered to be the deemed date of injury for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act.

Applicant’s submissions

The applicant initially lodged brief written submissions dated 12 April 2023, and she made oral submissions at the arbitration hearing on 19 April 2023, before providing further written submissions (in accordance with my direction on 19 April 2023) dated 24 May 2023 and additional written submissions dated 29 May 2023 (which I agreed to read following the preliminary conference on 2 June 2023).
In the written submissions dated 12 April 2023, the applicant submitted that in accordance with Fourmeninapub, Anshun estoppel would only be relevant if the applicant had unreasonably refrained from including her claim pursuant to s 66 of the 1987 Act in the first proceedings. She submits that:
(a)    the claim had not been made and therefore could not be included in the first proceedings;
(b)    the applicant was under no obligation to make the claim before commencing the first proceedings;
(c)     the Commission would not have had the jurisdiction to entertain the claim in the first proceedings as no dispute had arisen in it, and
(d)     “It is commonplace for applicants in workers compensation matters to proceed initially with claims for weekly compensation and payment of medical expenses, bringing impairment claims later when maximum medical improvement is reached. The extent of any impairment is not a matter which affects the primary issue of injury, the nature and extent of any resulting incapacity, or whether medical treatment is reasonably necessary. It cannot reasonably be suggested that it is incumbent on a worker to bring all claims simultaneously”.
The applicant expanded upon her written submissions during oral submissions on
19 April 2023.
She submitted that the respondent’s criticisms about her “splitting a case” failed to appreciate the three distinct forms of compensation available to her under the 1987 Act. There was no compulsion upon her to bring the claims at the same time, and indeed, due to the prohibition in the 1987 Act against being able to bring any more than one claim pursuant to s 66 of the 1987 Act, it was prudent to only bring that one claim once impairment had reached an “increased state”. There was certainly no obligation upon her to delay bringing her other claims before the Commission “pending the maturing of a dispute in relation to section 66”.
In relation to the respondent’s submission that it was in some way deceived into the settlement of the first proceedings, the applicant noted that there is no evidence as to the respondent’s thought processes at the time. In any case, the respondent should have been aware of the prospect of a claim pursuant to s 66 of the 1987 Act being made later. The applicant continued:
“My friend says that this was unfair in the way this settled, because the respondent understood that this was an outcome, which would finalise the matter. Well it could not conceivably, because it did not address a prospective section 66 claim, which is a separate right that any worker is entitled to enforce. Moreover, the notations confirm that both sides were well aware that what was being done here was simply closing down any further claim for weekly compensation and medical treatment…what the parties specifically did was to focus on the nature of the claim and to settle claims for weekly compensation and medical and related treatment. The question of a prospective lump sum claim was not addressed.”
In relation to the respondent’s criticism of the applicant’s solicitors in not disclosing
Dr Suman’s second report in the first proceedings, the applicant submitted:
“He then refers to what he describes as the deliberate nondisclosure of her WPI report. That is a criticism, which might be levelled at the applicant’s solicitor, but it does not have any bearing on an Anshun estoppel. It is the criticism of that solicitor’s management of the case, but as we will see when we turn to the decisions it does not provide any basis to say that the worker was bound to make a claim for lump sum compensation at the same time as the claim for weekly payments and medical expenses. And we know that she was unable to make that claim at the same time, because that claim had not matured to the level of a dispute.”
The applicant then quoted from Fourmeninapub and made the following points:
(a)    for Anshun estoppel to operate, the claim pursuant to s 66 of the 1987 Act would need to be so relevant to the subject matter of the first proceedings that it would have been unreasonable not to rely upon it in those proceedings – in fact, the level of the applicant’s whole person impairment was “totally irrelevant” to the claims brought in the first proceedings;
(b)    for Anshun estoppel to operate, it needed to be expected that the claim pursuant to s 66 of the 1987 Act would be raised in order to enable the relevant issues to be determined in one proceedings - in fact, as the level of the applicant’s whole person impairment was a matter for one of the Commission’s Medical Assessors, it would not have been able to be determined at the time when the first proceedings were resolved, and
(c)    there was no possibility of a conflict between the orders sought in the current proceedings and the orders made by way of the Certificate of Determination in the first proceedings.
The applicant then quoted from Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 (Habib) regarding the strict approach necessary if the requisite identity between proceedings is to exist in order to ground an Anshun estoppel. A technical approach is to be avoided and estoppel is a serious step and a power not to be exercised without a scrupulous examination of all the circumstances. Considering that workers compensation legislation is beneficial legislation, “it would obviously be a contradiction for a party to be prevented from securing assessment of WPI in circumstances in which there is no dispute as to injury”, which would be the case if the applicant was estopped from pursuing her claim pursuant to s 66 of the 1987 Act.
The applicant then quoted from Snell DP’s review of authorities in Wood especially in relation to Anshun estoppel preventing parties from opening up the ‘same subject’ of litigation in further proceedings. The applicant made the point that in relation to her dispute, the subject of the first proceedings related to her incapacity and need for medical treatment, whereas the subject of these proceedings related to her impairment. “We are dealing here with a different subject matter”.
The applicant finally quoted from Lord Bingham in Johnson v Gore Wood & Co [2010] UKHL 65 (Johnson) and McGrath CCCJ in Thompson v George Weston Foods [1990] NSWCC 18 (Thompson) in support of her submissions that she should not be prevented from proceeding with her claim pursuant to s 66 of the 1987 Act because of any failure of hers to raise that claim in the first proceedings.
In the written submissions dated 24 May 2023, the applicant again submitted that there was not any “foundation in the legislation, the case law interpreting that legislation, and the practice and procedure of the Commission” for the proposition that a worker who claims one category of compensation before the Commission is then precluded from claiming another category of compensation before the Commission.
In relation to the respondent’s submission that it believed the settlement in the first proceedings would bring to an end the entirety of the applicant’s workers compensation entitlements, the applicant submitted:
“No person with experience in the workers compensation jurisdiction, be
that person a case manager or a legal practitioner, could conceivably have
‘no idea’ and ‘not believe’ that a worker would, at some future time,
exercise his or her rights pursuant to the workers compensation legislation
to make a lump sum claim…As the Member and all legal practitioners in this matter are well aware, it is commonplace for lump sum claims to be made at a time subsequent to the resolution of claims relating to weekly compensation and medical expenses.”
In relation to the respondent’s submission that the applicant had withheld Dr Suman’s second report and not made her claim pursuant to s 66 of the 1987 Act prior to the resolution in the first proceedings, the applicant noted that there was now evidence lodged in the respondent’s first AALD that the claim was in fact made (and a copy of Dr Suman’s second report provided) by email to the respondent on 10 June 2021 (see paragraph 38 above). The respondent was therefore aware of both the claim and the report when it agreed to the settlement in the first proceedings. The claim and the report had been ‘raised’ with it.
In relation to the deemed date of injury to be determined with respect to the applicant’s claim pursuant to s 66 of the 1987 Act, the applicant submitted that in accordance with Stone and
s 15 of the 1987 Act, the deemed date of injury is to be determined with reference to what is being claimed, and would therefore be the date upon which the claim for compensation pursuant to s 66 of the 1987 Act was initially made.
In the written submissions dated 29 May 2023, the applicant essentially addressed the assertion put by the respondent in its 26 May 2023 submissions that it was not aware of the 10 June 2021 email from the applicant’s solicitors (see paragraph 38 above) when it agreed to resolve the first proceedings on 3 September 2021. The applicant submitted that the respondent had not led any evidence to support its assertions, and that Indira Chamakuri was “the appropriate functionary to whom workers compensation claims can be expected to have been addressed”. Any suggestion that Ms Chamakuri was an ex-employee of the respondent’s insurer was refuted both on the basis that her email reply to the applicant’s solicitors’ email simply noted that she was out of the office, and on the basis that a ‘LinkedIn’ search revealed that she was still employed by the respondent’s insurer (see paragraph 47 above). The applicant further submitted:
“An insurer has statutory obligations pursuant to section 281 of the Workplace
Injury Management and Workers Compensation Act 1998 to respond to a claim
for lump sum compensation. That obligation requires efficient and responsible
management and administration of the claims process, and the exercise of due
diligence in order to comply with its statutory obligations. An insurer is not
excused of its obligations in circumstances in which its workers compensation
Claims Specialist is out of the office. And such absence cannot, in any event,
alter the fact that a claim was duly made.”
Finally, the applicant submitted:
“The respondent’s submissions asserting its supposed ignorance of the worker’s
intention to make a claim for lump sum compensation, and its alleged belief that
all of the applicant’s entitlements under the 1987 Act were being finally and
conclusively resolved on 3 September 2021, besides being misconceived and
contrary to common experience and practice in the jurisdiction, are plainly
spurious given that the workers intention to exercise rights under section 66 was
known to the insurer in June 2021.”

FINDINGS AND REASONS

Is the applicant estopped by reason of the principal in Anshun (Anshun estoppel) from pursuing her claim before the Commission for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury

In Anshun, the majority of the High Court applied the principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) (Henderson) and quoted from the Vice-Chancellor at p 598:
“"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
The majority in Anshun went on to state [at 37]:
“there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”

Anshun estoppel was considered extensively by the Court of Appeal in Habib. McColl JA noted that the estoppel will arise to prevent the potential existence of conflicting judgments. She considered Johnson and provided the following warnings regarding the operation of the estoppel [at 84-5]:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers. In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court can look at ‘any material that shows what issues were raised and decided’: Rogers v R (at 263) per Brennan J.
In considering whether an Anshun estoppel has been established it is necessary to bear in mind that ‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation...is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’ ‘: Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.”
And [at 87]:
“In considering whether it would have been reasonable to rely upon a matter in earlier proceedings, courts recognise ‘that there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few’: Anshun (at 603).”
As to how Anshun estoppel fits into the workers compensation context, which deals with separate statutory entitlements arising out of the same injury (rather than common law entitlements), the issue was considered by McGrath CCCJ in Thompson where his Honour explained:
“In the area of workers compensation, the basic framework is the statute itself. Under the Act disputes of various kinds can occur. They may relate to the whole question of liability for all and every benefit provided by the Act. They may relate only to some of them. In certain cases, a tribunal different from the Court, namely, a medical panel, can be invoked to resolve issues, such as the condition of an injured worker, or the worker's fitness for employment.
It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication. In doing this he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not.
At the time of hearing a claim on original liability a claim under the Table of Maims may not have crystallised into one of the scheduled losses. The fact that it had not been claimed in the original proceedings could not prevent it being claimed subsequently, if the applicant succeeded on the issue of basic liability. Even if it were crystallised, and not included, there would be no bar to its subsequent determination by the Court, or a medical panel, although its non-inclusion in the original claim might be relevant on the question of costs.”
In this Commission, the cost penalties referred to by McGrath CCCJ do not apply, but I otherwise find his Honour’s analysis helpful. He was specifically dealing with entitlements pursuant to the 1987 Act. Applying his Honour’s reasoning to the applicant’s entitlements, she would only have been estopped from pursuing her claim pursuant to s 66 of the 1987 Act had there been a finding against her on the issue of injury in the first proceedings.
Neilson CCJ also considers Anshun estoppel in the workers compensation context and reviewed various authorities, in Bruce v Grocon Limited [1995] NSWCC 10 (Bruce). His Honour distilled the following principles from the authorities:
“(a) the principle in the Port of Melbourne Authority v. Anshun Pty Ltd extends to claims as well as to defences: O'Brien's case in the Court of Appeal and Boles' case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies
inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles' case.”
These principles were also quoted with authority by President Judge Phillips in Miller No 5. In that case, the President also stated [at 194]:
“The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action.”
President Judge Phillips also considered Anshun estoppel in Fourmeninapub and Geary.
In Fourmeninapub, the worker attempted to claim compensation for a disease injury pursuant to s 4(b)(ii) of the 1987 Act in subsequent proceedings, in circumstances where she did not have the evidence to make that claim in the initial proceedings. The President stated [at 130]:
“It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so. In determining the Anshun estoppel question it is necessary to undertake an analysis of the medical evidence available in the proceedings below, to determine whether Ms Booth failed to bring the claim under s 4(b)(ii) in the proceedings before Arbitrator O’Moore. In particular it is necessary to consider whether, in the proceedings before Arbitrator O’Moore, there was an absence of medical evidence required to support the s 4(b)(ii) claim (which was determined in proceedings before Arbitrator Edwards).”
And [at 138]:
“it would have been improper for Ms Booth’s legal representatives to bring a disease claim in the 2009 proceedings. That is because on the available medical evidence, there was no case for a disease injury pursuant to s 4(b)(ii). I would remark that if a claim is misconceived or lacking in substance it is liable to be dismissed pursuant to s 345(7A) of the 1998 Act.”
In Geary, the worker was prevented by Anshun estoppel from pursuing a claim in relation to a disease injury to his cervical spine in subsequent proceedings, the President stating [at 123]:
“The Member has found that an aspect of the appellant’s claim, namely his disease claim in relation to his cervical spine based upon the nature and conditions of his employment with the respondent, is not able to be maintained due to the existence of an Anshun estoppel. As I have previously found in relation to claims under the workers compensation Acts, it is possible for various claims under that legislation to be pursued in different proceedings without engaging with the Anshun principle. However the Anshun principle does exist for deployment in workers compensation claims in appropriate cases. By appropriate cases I mean cases where after a consideration of the facts and the undertaking of the evaluative exercise referred to by McColl JA in Habib, the Anshun principles might then be enlivened. Unfortunately for the appellant in this case, the circumstances that have arisen have enlivened the Anshun principle in relation to his lump sum claim pertaining to his cervical spine. The Member has carefully considered the facts of the case and in particular the evidence that was available and known to the appellant and his advisers prior to and at all times during the conduct of the 2019 proceedings.”
In relation to the applicant’s claim pursuant to s 66 of the 1987 Act, the respondent argues that as she was in possession of Dr Suman’s second report when she lodged her ARD in the first proceedings, she then possessed the type of medical evidence referred to in Geary (and which was lacking in Fourmeninapub) to enliven Anshun estoppel to prevent her claim pursuant to s 66 after the conclusion of the first proceedings.
It is important to appreciate in this regard however that as at the date when she lodged the first proceedings (14 May 2021) she was without doubt (even though she has some medical evidence in support) unable to include any claim pursuant to s 66 of the 1987 Act in those proceedings, as there was no compliance with s 289(3) of the 1998 Act, which is as follows:
“(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.”
The claim pursuant to s 66 of the 1987 Act had not been made, and the respondent had therefore not been given a chance to determine it in accordance with s 281 of the 1988 Act, which provides the following timeframes:
“(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by--
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined—
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.
(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.”
I do not therefore find it unreasonable for the applicant to have not included a claim pursuant to s 66 of the 1987 Act in the first proceedings when she lodged those proceedings. As noted [at 138] in Fourmeninapub, such a claim in the proceedings at the time would have been misconceived and clearly subject to dismissal.
Having received Dr Suman’s second report, the applicant was aware of the potential value of her claim pursuant to s 66 of the 1987 Act. She could have chosen to formally make that claim, and then wait for the timeframes referred to in s 281 of the 1998 Act to pass before lodging an ARD with the Commission that claimed weekly benefits compensation, expenses pursuant to s 60 of the 1987 Act, as well as the claim pursuant to s 66.
She chose not to wait, and to instead lodge an ARD with the Commission that claimed weekly benefits compensation and expenses pursuant to s 60 of the 1987 (being the only entitlements that she could proceed with to the Commission as at 14 May 2021). The affidavit from Mitchell Hajje (see paragraph 22 above) alleges that the applicant’s financial hardship and urgent need for medical treatment influenced her decision not to wait, but the respondent submits (see paragraph 60 above) that there is no mention of these considerations in the documentation produced from the applicant’s solicitors’ file. As stated earlier, I do not find Mr Hajje’s evidence to be particularly reliable (see paragraphs 41-5 above), but I also do not believe that the applicant’s decision not to wait was unreasonable. The applicant had not received any weekly benefits compensation entitlements or entitlements pursuant to s 60 of the 1987 Act since December 2020, and in my opinion, she was entitled to have liability for those entitlements determined by the Commission without waiting at least two months (but in many cases closer to four months) for any claim of hers pursuant to s 66 of the 1987 Act to be determined by the respondent in accordance with
s 281 of the 1998 Act.
Further, in my opinion, the applicant did not act unreasonably in failing to formally make her claim pursuant to s 66 of the 1987 Act immediately upon receipt of Dr Suman’s second report. Since the 1987 Act was amended to insert s 66(1A), workers have had to be vigilant to ensure that claims pursuant to s 66 are not brought prematurely as further claims will not be possible. Section 66(1A) provides as follows:
“(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Indeed, the applicant’s caution in not proceeding with her claim pursuant to s 66 of the 1987 Act until she had been re-assessed by Dr Suman (after the resolution in the first proceedings) seems to have been justified as Dr Suman’s third report assesses her with an extra 1% whole person impairment in addition to the assessment in Dr Suman’s second report.
I do not accept the respondent’s submission (see paragraph 53 above) regarding the lack of significance of this further assessment. Put simply, the further assessment entitles the applicant to claim a greater amount of monetary compensation pursuant to s 66 of the 1987 Act.
There are also other elements that in my opinion prevent the application of Anshun estoppel to the applicant’s claim pursuant to s 66 of the 1987 Act. I accept the applicant’s submissions at paragraph 70 above in this regard.
There is no possibility of a conflict between the orders in the Certificate of Determination in the first proceedings and the orders sought in the current proceedings. Different workers compensation entitlements are being claimed, there can be no inconsistent findings in relation to the nature of the applicant’s injury, and the notations (including admissions) in the Certificate of Determination (which may have some relevance to the assessment of the applicant’s whole person impairment) can be taken into account by the Medical Assessor when assessing that whole person impairment. As can be seen from the authorities quoted above (especially Bruce and Fourmeninapub), the prevention of conflict and inconsistencies is a significant rationale behind the Anshun estoppel principle.
The applicant’s claim pursuant to s 66 of the 1987 Act is also of little relevance to the subject matter (my emphasis) of the first proceedings. All the authorities quoted above (going back to Henderson which refers to “the same subject of litigation”) refer to subject matter relevance as a requirement for Anshun estoppel. The subject matter of the first proceedings were claims for weekly benefits compensation and expenses pursuant to s 60 of the 1987 Act. The level of the applicant’s whole person impairment as alleged in any claim pursuant to s 66 of the 1987 Act is a different subject matter. The subject matter of the first proceedings required consideration as to whether an injury had occurred, the extent of incapacity as a result of that injury, and the requirement for medical treatment in relation to the injury. While evidence as to the level of a worker’s whole person impairment is not totally irrelevant to those considerations, the weight to be given to such evidence would be minor compared with the weight to be given to medical evidence specifically addressing the issues of incapacity and requirement for medical treatment. Certainly, evidence as to the level of impairment could not be considered to be “so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”, as is stated to be required in Anshun.
The respondent argues that if (due to the timeframes involved in the applicant formally making a claim pursuant to s 66 of the 1987 Act) it was not unreasonable for her to lodge the first proceedings on 14 May 2021 without pleading that claim, it was still incumbent upon her to raise the claim in the proceedings. One problem with this submission is that the respondent does not explain how the claim would be raised (my emphasis) in the proceedings, especially as the proceedings did not involve a recorded arbitration hearing.
The respondent bears the onus of proving Anshun estoppel and it has provided no positive evidence as to what was raised during the negotiations which resulted in the resolution of the first proceedings.
The major problem with the submission however is that there was a claim made upon the respondent pursuant to s 66 of the 1987 Act by email on 10 June 2021 (see paragraph 38 above). I find that this was a valid claim and that the respondent should have been aware of it during the course of the first proceedings after 10 June 2021. It is noted that the claim email attached a copy of Dr Suman’s second report.
The email was sent to Indira Chamakuri, who was a claims specialist with the respondent’s insurer and who had previously been involved in communications with respect to the applicant’s claim. The receipt of the email was acknowledged by the respondent’s insurer when it sent an email to the applicant’s solicitors (see paragraph 47(a) above) advising that Ms Chamakuri was ‘out of the office’. There is no evidence as to what Ms Chamakuri did with the claim made by the email when she returned to the office. There is also no evidence as to the respondent’s insurer’s office procedures when it comes to the receipt of emails to individuals who are ‘out of the office’.

The respondent complains (see paragraph 62 above) that it was not aware of the email formally making the claim. I find however that it should have been aware, and that the claim was validly and correctly made by the email. There can be little doubt that email correspondence has been encouraged by most organisations especially since the COVID-19 pandemic. It is incumbent upon those organisations to have proper procedures in place for the processing of emails, just as in the past they would have had proper procedures in place for the processing of postal mail.
I reject the respondent’s submission that Ms Chamakuri was not employed by the respondent’s insurer as at 10 June 2021. There is no evidence to support this submission, and indeed:
(a) there is evidence (see paragraph 47(b) above) that she remains employed by the respondent’s insurer to date - according to her ‘LinkedIn’ profile, and
(b) the Reply lodged on 7 June 2021 by the respondent in the first proceedings (see specifically page 14 of the Reply in these proceedings) refers to her as the insurer’s contact.
I also note that in the respondent’s notice pursuant to s 78 of the 1998 Act dated
23 February 2022 (see paragraph 29(b) above), the respondent specifically criticises the applicant’s solicitors for sending correspondence to a generic email address “despite the earlier proceedings in the Personal Injury Commission noting an email address for the relevant claims manager” (see specifically page 58 of the ARD). Although this notice was sent some months after the 10 June 2021 email, it provides confirmation that the respondent’s insurer expected email correspondence to be sent to individual claims managers, such as Ms Chamakuri. It also provides confirmation that individually,
Ms Chamakuri (as the claims manager mentioned in the Reply lodged in the first proceedings) was the correct claims manager for the applicant’s solicitors to contact by email on 10 June 2021.
Having found that a valid claim was made by the 10 June 2021 email and that the respondent’s insurer had in effect acknowledged its receipt of the claim by sending an ‘out of office’ email back to the applicant’s solicitors, I also find that the claim was therefore raised by the applicant with the respondent prior to the resolution in the first proceedings. The respondent submitted that the claim needed however to be raised in the proceedings (my emphasis). As noted though, it does not explain the mechanism for such a raising to occur. Would an Application to Admit Late Documents (with claim documentation attached) be required? Would it be sufficient for the claim to be raised verbally at either a preliminary conference or the conciliation/arbitration? Would it be sufficient if Dr Suman’s second report had been included in the ARD in the first proceedings?
I do not believe that any of these courses were necessary. The appropriate claims specialist at the respondent’s insurer had been provided with both the formal claim pursuant to s 66 of the 1987 Act and Dr Suman’s second report. Ms Youkhana certainly believed that she had raised the claim with the respondent, even though she did not intend to follow up a response to the claim from the respondent (see paragraph 32 above).
To take the position that (even though a valid claim pursuant to s 66 of the 1987 Act had been made to the respondent and it should therefore have been aware of the claim), the applicant had still not officially raised the claim in the first proceedings is in my opinion an overly technical approach to the Anshun estoppel principle, contrary to the authority of Habib. In substance, the claim had been raised with the respondent, even if there was potentially an issue as to the formal manner for it to be raised in the first proceedings.
The respondent argues that the applicant acted unreasonably in not ensuring that the respondent was aware of the claim made pursuant to s 66 of the 1987 Act when the first proceedings resolved, and as a result, it was treated unfairly. It uses some fairly emotive language in its submissions in this regard (see paragraph 55 above), but has however produced no evidence as to it not being aware of the claim or as to its thought processes when the first proceedings resolved.
Notwithstanding my finding that it should have been aware of the claim after the sending of the 10 June 2021 email formally making the claim, I also find it very difficult to accept that its experienced claims managers and legal advisers would not have been aware of the applicant’s entitlement to make a claim pursuant to s 66 of the 1987 Act when the first proceedings resolved. As soon as the applicant lodged her initial claim form with the respondent (see paragraph 21(d) above), the respondent would have appreciated that she had potential entitlements to weekly benefits compensation, expenses pursuant to s 60 of the 1987 Act, and a claim pursuant to s 66 of the 1987 Act. These are the potential legal entitlements that every injured worker has. There is no obligation upon the applicant to remind the respondent of these entitlements.
To suggest that the experienced claims managers and legal advisers of the respondent’s believed that they were resolving the totality of the applicant’s workers compensation entitlements when they agreed to the terms of the Certificate of Determination in the first proceedings, which only dealt with two of those three entitlements, is not maintainable in my opinion. I accept the submissions of the applicant at paragraphs 68 and 75 above, and reject the proposition that the respondent was deceived or lured into the resolution of the first proceedings without appreciating that the resolution did not resolve the applicant’s entitlement to claim pursuant to s 66 of the 1987 Act.
The respondent also complains that the actions of the applicant’s solicitors in the manner in which they proceeded with the first proceedings, was inappropriate (see paragraphs 54 and 56 above). The applicant submits that any inappropriate action of her solicitors does not have any bearing on an Anshun estoppel (see paragraph 69 above). Having considered the authorities and the specific complaints made by the respondent, I accept the applicant’s submissions.
Specifically, the crux of the respondent’s complaint is that Dr Suman’s second report was not attached to the ARD in the first proceedings. This complaint has some merit. It is incumbent upon parties to place before the Commission the full opinions of their expert witnesses.
However, by the time the first proceedings were resolved, I have found that Dr Suman’s second report was in the possession of the respondent as it was attached to the
10 June 2021 email formally making the applicant’s claim pursuant to s 66 of the 1987 Act.
The respondent’s other complaints are:
(a) in relation to the applicant’s solicitors deliberately severing the applicant’s claim pursuant to s 66 of the 1987 Act from her other workers compensation claims in the first proceedings – in my opinion, this approach was justified when the first proceedings were lodged with the Commission on 14 May 2021 as the applicant was then not legally able to include the claim pursuant to s 66 in the proceedings – under a month later (on 10 June 2021) and well before the resolution of the first proceedings, she then formally made the claim pursuant to s 66 - I do not therefore accept that there was any inappropriate action by the applicant’s solicitors in this regard – further, authorities such as Miller No 5 and Geary make it clear that in the context of proceedings before the Commission, different statutory benefits can be quite properly asserted in different proceedings before it, and
(b) that the applicant’s solicitors deliberately decided to “lock in liability” in the first proceedings – again in my opinion, this approach was justified, and indeed unavoidable as a liability determination would have been made by the Commission in those proceedings if they had not resolved.
In summary therefore, having evaluated the evidence as required by Habib (in which it was accepted that I would be able to examine “any material that shows what issues were raised and decided”), I am not satisfied that the respondent has overcome its burden of proving (as stated in Fourmeninapub) that the applicant’s failure to bring her claim pursuant to s 66 of the 1987 Act in the first proceedings was unreasonable and that was no valid reason for her refraining from doing so. In my opinion, the respondent has failed to prove the necessary elements of Anshun estoppel in a workers compensation context, having regard to the criteria outlined in authorities such as Bruce, Thompson, Fourmeninapub and Geary. Further, considering the care necessary in the application of Anshun estoppel as explained in Habib, I consider the respondent’s complaints to be largely technical in circumstances where I have found:
(a) the applicant was unable to plead a claim pursuant to s 66 of the 1987 Act in the ARD she lodged in the first proceedings on 14 May 2021, and
(b) the applicant formally made a valid claim pursuant to s 66 before the first proceedings resolved on 3 September 2021.

If the respondent’s argument in relation to issue (a) fails, what is the deemed date of injury for the purpose of the applicant’s lump sum claim pursuant to s 66 of the 1987 Act

Sections 15 and 16 of the 1987 Act provide the mechanism to determine dates of injury when a worker suffers an occupational disease or the aggravation of an occupational disease. I note in relation to the applicant that the Certificate of Determination in the first proceedings (see paragraph 27 above) included a finding that the applicant had sustained an injury pursuant to s 4(b)(ii) of the 1987 Act, meaning that s 16 of the 1987 Act is applicable to set the deemed date of her injury.
Section 16(1) reads as follows:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration”;
And s 16(3) reads as follows:
“(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
In the Certificate of Determination in the first proceedings, it was also accepted that the applicant’s deemed date of injury was 18 May 2020. This date would appear to be the last date when she worked with the respondent (see paragraph 21(c) above) and her first date of incapacity, in accordance with s 16(1)(a)(i) of the 1987 Act.
However, it is well-established that there can be more than one deemed date of injury applicable to an occupational disease depending upon the type of compensation claimed – see particularly GIO Workers Compensation (NSW) Limited v GIO General Limited (1995) 12 NSWCCR 187 (GIO) and Alto Ford Pty Limited v Antaw [1999] NSWCA 234 (Antaw). In Stone, Antaw was discussed and held by Handley JA [at 8] to be:
“authority for the proposition that s 16 may fix different dates for incapacity and impairment injuries.”
In Stone, the worker was pursuing a claim pursuant to s 66 of the 1987 Act in relation to a skin cancer condition, which was considered to be an occupational disease within s 16 of the 1997 Act. The trial judge found that he had been treated for the condition in 1987 and that each treatment would have led to at least a short period of incapacity. He only however made his claim pursuant to s 66 in 2003 following a medical assessment of his permanent impairment in that year. The Court of Appeal found that there could therefore be no incapacity from the permanent impairment (which was itself an injury pursuant to s 16(3) of the 1987 Act) until the impairment had been assessed and a claim for it made. Hodgson JA stated [at 36-8]:
“In my opinion, the decision in GIO shows that one must relate the question of the time of death or incapacity under s.16(1)(a)(i) to what is being claimed. Where, as in GIO itself, what is being considered is not a worker's claim based on incapacity, but a dependant's claim based on death, the fact that there was incapacity prior to the worker's death is irrelevant. The relevant time for the purposes of s.16(1)(a)(i) is the time of death.
Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.
In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s.66(1), which loss is itself to be treated as an injury within s.16(1), as provided by s.16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr. Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par.[18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.”
It follows in accordance with Stone that the applicant’s deemed date of injury for the purpose of her claim for weekly benefits compensation will be different from her deemed date of injury for the purpose of her claim pursuant to s 66 of the 1987 Act, due to the effect of s 16(3) of the 1987 Act treating her impairment as an injury by itself.
The applicant could not be incapacitated by her permanent impairment prior to it being assessed and claimed. Her deemed date of injury for the purpose of her claim for permanent impairment pursuant to s 66 of the 1987 Act will therefore be the date of that claim.
I have found that her claim for permanent impairment pursuant to s 66 of the 1987 Act was validly made by the email that her solicitors sent to the respondent’s insurer on
10 June 2021.
Following this initial claim, her solicitors then purported to re-make the claim on or around
9 November 2021 (see paragraph 21(h) above). They then purported to make an amended claim (see paragraph 21(k) above) on 6 September 2022 enclosing Dr Suman’s third report (which had assessed an extra 1% whole person impairment compared with his second report). The claim had however already been made prior to either of these dates, and in my opinion, the appropriate deemed date of injury is the date when the initial claim was made. By that date, the applicant’s permanent impairment had been assessed and claimed.
10 June 2021 will therefore be the deemed date of injury for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act.

SUMMARY

I therefore find that the applicant is not estopped from pursuing her claim before the Commission for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury.
I also find the deemed date of injury in relation to the applicant’s claim for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury is 10 June 2021.
The assessment of the applicant’s claim pursuant to s 66 of the 1987 Act will be remitted to the President of the Commission for referral to a Medical Assessor.

[2023] NSWPIC 338

12 July 2023