Secretary, Department of Communities & Justice v Cannell
[2024] NSWPICPD 32
•31 May 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32 |
| APPELLANT: | Secretary, Department of Communities & Justice |
| RESPONDENT: | Cindy Cannell |
| INSURER: | QBE TMF |
| FILE NUMBER: | A1-2754/18 |
| PRESIDENTIAL MEMBER: | Acting Deputy President Kylie Nomchong SC |
| DATE OF APPEAL DECISION: | 31 May 2024 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The appeal is upheld. 3. The Certificate of Determination dated 9 May 2023 (as amended on 24 July 2023) is revoked. 4. Pursuant to s 352(6A) of the 1998 Act a new decision is made in its place that the respondent’s application for reconsideration pursuant to s 350(3) of the 1998 Act is dismissed. |
| CATCHWORDS: | WORKERS COMPENSATION – appeal from reconsideration application – former sections 350 and 378 of the Workplace Injury Management and Workers Compensation Act 1998 – section 66(1A) of the Workers Compensation Act 1987 – previous assessment of whole person impairment of 12% for the purposes of lump sum compensation – subsequent total knee replacement – section 327(7) of the Workplace Injury Management and Workers Compensation Act 1998 – worker seeks to have Certificate of Determination rescinded so an appeal or reconsideration can be made against previous assessment of whole person impairment – worker also seeks assessment of whole person impairment for the purposes of section 39 of the Workers Compensation Act 1987 – series of ‘trial and error’ attempts to have the worker’s permanent impairment assessment reviewed or reconsidered – whether reconsideration application made and determined – Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; UBS AG v Tyne [2018] HCA 45; Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 and Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113; 102 NSWLR 941 discussed and applied |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Krieg, solicitor | |
| Turks Legal | |
| Respondent: | |
| Mr C Hart, counsel | |
| Michael Evers & Co | |
| DECISION UNDER APPEAL | |
| SENIOR MEMBER: | Ms E Beilby |
| DATE OF SENIOR MEMBER’S DECISION: | 9 May 2023 |
INTRODUCTION
I utilise the terms ‘appellant’ and ‘respondent worker’ throughout for consistency – even though at the relevant times, the appellant was a respondent to various applications and the respondent worker was the applicant.
The respondent worker (Ms Cannell) was employed as a Sheriff’s Officer with the appellant (Department of Communities and Justice). The respondent worker injured her right lower leg during an incident at work on 3 October 2013, and thereafter received treatment, predominantly to her right knee. Liability was accepted for weekly payments and medical expenses.
First claim – Matter No. 1436/18 (9 November 2017)
On 9 November 2017, the respondent worker made a claim on the appellant for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (1987 Act).[1] That claim was based on the report of Dr Bodel dated 1 November 2017.[2] The claim was for 17% Whole Person Impairment (WPI). The report noted that the respondent worker had positive signs of persisting complex regional pain syndrome (CRPS).[3] This was part of Dr Bodel’s diagnosis and he assigned 8% WPI to that condition.[4]
[1] The claim form is contained at Reply to Application to Resolve a Dispute (Reply), p 14 but the date of this claim is only referred to in the appellant insurer’s response at Application to Resolve a Dispute (ARD), p 194C.
[2] Reply, p 15.
[3] Reply, p 19: Report of Dr Bodel dated 1 November 2017, p 5.
[4] Reply, p 22: Report of Dr Bodel dated 1 November 2017, p 8.
That claim was denied by the appellant’s insurer on 17 January 2018 on the basis of reports obtained from Dr Panjratan dated 7 December 2017[5] and 29 January 2018.[6]
[5] Reply, pp 1–10.
[6] Reply, pp 11–12.
On 18 January 2018, the respondent worker made an amended claim in the following terms:
“s 66 lump sum $74,250.00 in respect of 36% whole person impairment for CRPS Type 1 of the right lower limb.”[7]
[7] ARD, p 192.
That claim was supported by a medical report from Dr Simon Tame, pain management physician, dated 12 December 2017.[8] The report from Dr Tame disclosed that he had not recently examined the respondent worker and that he had based his diagnosis on the observations of Dr Bodel in his report. The appellant denied liability for the amended claim on 5 February 2018.[9]
[8] ARD, p 1–2.
[9] ARD, pp 193–4.
The respondent worker filed an Application to Resolve a Dispute (ARD) with the then Workers Compensation Commission (WCC) and it was assigned Matter No. 1436/18. The ARD claimed that the respondent worker suffered an injury on 3 October 2013 to her right knee, foot and ankle.[10] The ARD made only one claim and that was for permanent impairment including pain and suffering in the amount of 36% WPI in respect of “CRPS Type 1 of the right lower limb.”[11] The appellant filed a Reply on 10 April 2018.[12]
[10] Reply, p 36: being the ARD in Matter No. 1436/18 at Part 4 – Injury Details.
[11] Reply, p 38: being ARD in Matter No. 1436/18 at Part 5.6.
[12] Reply, pp 43–48: being the Reply in Matter No. 1436/18.
The WCC referred the matter for assessment of the %WPI to an approved medical specialist (AMS), Dr Lewington, with the assessment to take place on 23 April 2018.
However, following a teleconference, the WCC issued a Certificate of Determination (COD) on 20 April 2018 (noting that the orders were made by consent). The orders in the COD were as follows:[13]
“(1) On the applicant’s [respondent worker’s] application the matter is discontinued and I dispense with the necessity for the [respondent worker] to lodge a notice of discontinuance.
(2) I direct that the appointment with the AMS for 23 April 2018 be cancelled.”
[13] ARD, p 197.
Second claim – Matter No. 2754/18 (23 May 2018)
On 23 May 2018, the respondent worker submitted a new ARD to the WCC and it was assigned Matter No. 2754/18.
The ARD was identical to the ARD in Matter No. 1436/18 (save for one word). The ARD made the same singular claim for compensation for permanent impairment in the amount of 36% WPI but this time it was stated to be in respect of “CRPS Type 1 of the right lower extremity.”[14] The typewritten word “limb” from the ARD in Matter No. 1436/18 had been crossed out and the word “extremity” written in by hand. The date and nature of the injury was the same.[15]
[14] ARD, Part 5.6.
[15] ARD, Part 4 – Injury Details.
The ARD noted that the respondent worker had made the previous claim in respect of the same injury, being Matter No. 1436/18.
The respondent worker relied on the same report of Dr Simon Tame dated 12 December 2017, together with various clinical notes and reports from treating doctors and medical personnel. Dr Tame’s report was directed only to the condition of CRPS.
The appellant filed its Reply on 19 June 2018, in which it maintained the concerns it had with the respondent worker being referred to an AMS in Matter No. 1436/18.[16]
[16] Reply, Annexure A.
Medical assessment certificate (MAC) – 16 August 2018
The matter was referred for assessment to the same AMS, Dr Lewington, and a medical assessment certificate (MAC) was issued on 16 August 2018 in which the respondent worker was assessed with 15% WPI.
Appeal against MAC
That MAC was appealed by both parties.
The respondent worker’s appeal dated 10 September 2018 relied on s 327(3)(a)–(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The appellant’s appeal dated 11 September 2018 relied only on ss 327(3)(c) and (d) of the 1998 Act.
Amended MAC – 2 November 2018
On 12 October 2018, Delegate McAdam issued a ‘gatekeeper’ decision in which the respondent worker’s appeal was rejected on the basis that none of the grounds of appeal were capable of being made out. The appellant’s appeal was referred back to the AMS for reconsideration. A new MAC was issued by Dr Lewington on 2 November 2018 of 12% WPI for the respondent’s right lower extremity (Amended MAC).
Appeal against Amended MAC – 27 November 2018
The respondent worker filed an appeal against the Amended MAC on 27 November 2018, alleging that her condition had deteriorated and that there was fresh evidence available, relying on ss 327(3)(a) and (b) of the 1998 Act. On 12 December 2018, the appellant opposed the appeal.
On 25 January 2019 Delegate McGrowdie issued a ‘gatekeeper’ decision and allowed the respondent worker’s appeal to proceed to a Medical Appeal Panel (MAP).
Medical Appeal Panel Decision – 27 February 2019
On 27 February 2019, the MAP confirmed the Amended MAC and found that there was no evidence of a deterioration in the respondent worker’s condition.
Certificate of Determination (Matter No. 2754/18) – 4 April 2019
A Certificate of Determination was issued on 4 April 2019 (COD dated 4 April 2019) stating that the respondent worker had 12% WPI in respect of the injury to her right lower extremity and making an order for lump sum compensation under s 66 of the 1987 Act.
2019 Reconsideration Application (Matter No. 2754/18) – 16 May 2019
On 16 May 2019, the respondent worker filed an application for reconsideration of the MAP decision asserting reliance on ss 325(3); 327(6); 329(1)(a) and/or 350(3) of the 1998 Act (as those provisions then stood) (2019 Reconsideration Application). The application was opposed by the appellant. The appellant filed a detailed response on 5 June 2019.
On 11 July 2019, Ms Annette Farrell (Director, Operations – Workers Compensation Commission) sent an email to the parties stating that the request for reconsideration was declined because the COD dated 4 April 2019 had resolved the dispute and the matter could not be referred back to the MAP under s 378 of the 1998 Act. The respondent worker took no further action in relation to that decision.
Total knee replacement – 14 August 2019
The respondent worker underwent a total knee replacement (TKR) on 14 August 2019.
Further lump sum claim – 15 December 2020 (Matter No. 2754/18)
On 15 December 2020, the respondent worker submitted a further lump sum claim claiming 37% WPI in respect of the same injury to the right lower extremity arising from the accident on 3 October 2013 and based on a diagnosis of CRPS.[17] This application was made on the basis of the report of Dr Marc Walden dated 1 September 2020.[18] On 2 February 2021, the appellant disputed that claim on the basis that only one COD could be issued for permanent impairment pursuant to s 66(1A) of the 1987 Act and asserted reliance on s 322A of the 1998 Act.
[17] This application is not contained in the materials filed in these proceedings but is acknowledged by both parties in their various submissions and in the respondent worker’s statement dated 22 August 2022 at [16]. (This statement is attached to the 23 August 2022 Reconsideration Application). The reference to the claim being made as part of Matter No. 2754/18 is contained in the letter from QBE to the respondent worker dated 29 March 2021 page 2. (The letter is attached to the 6 September 2021 Reconsideration Application).
[18] Attachments to 6 September 2021 Reconsideration Application, pp 103–116.
On 16 March 2021, the respondent worker sought a review pursuant to s 287A of the 1998 Act in respect of that decision.[19] On 29 March 2021, the appellant’s insurer advised that the request to review the decision to deny the claim for further lump sum compensation (including any new additional information) was denied. In that letter, the appellant advised that s 66(1A) of the 1987 Act prevented the respondent worker from pursuing any further claim for lump sum compensation in respect of the injury on 3 October 2013. Further the appellant advised that it considered that ss 322A and 350 of the 1998 Act prevented the respondent worker from being assessed again in relation to the degree of permanent impairment.
[19] The letter seeking the review is not in the materials but is referred to in the response from the appellant’s insurer, which is attached to the 6 September 2021 Reconsideration Application.
No further action was taken by the respondent worker at that time.
Cessation of weekly payments
On 22 February 2021, the appellant’s insurer wrote to the respondent worker advising that her weekly payments would cease on 2 December 2021 (because her WPI was assessed at 12% and therefore she did not qualify for ongoing weekly payments).
Further proceedings (Matter No. W2466/21) – 18 June 2021
On 18 June 2021, the respondent worker filed an application (Form 7) for an assessment by a medical assessor in the Personal Injury Commission (Commission) and was assigned Matter No. W2466/21. This application sought a further assessment of permanent impairment to determine whether she had more than 20% WPI for the purposes of s 39 of the 1987 Act.
On 12 July 2021, the appellant responded to that application. On 19 July 2021, the respondent worker discontinued that application prior to the first conference.[20]
[20] The application, response and discontinuance are not contained in the materials filed in these proceedings but are referred to in the appellant’s chronology attached to the Appeal Application; and in the appellant’s submissions dated 1 June 2023 at [19] and this was not disputed by the respondent worker.
Claim for further assessment – 13 August 2021
On 13 August 2021, the respondent worker wrote to the appellant seeking a further assessment to determine whether she satisfied s 39 of the 1987 Act and the Work Injury Damages (WID) threshold.[21] The respondent worker served the same report from Dr Walden dated 1 September 2020. The appellant disputed that application.[22] This application was not pursued.
[21] This letter is attached to the 6 September 2021 Reconsideration Application.
[22] Letter dated 30 August 2021, attached to the 6 September 2021 Reconsideration Application.
2021 Reconsideration Application (Matter No. 2754/18) – 6 September 2021
On 6 September 2021, the respondent worker filed an application for reconsideration of the Amended MAC and the COD dated 4 April 2019 (2021 Reconsideration Application) in the Second Claim proceedings, being Matter No. 2754/18. This was supported by submissions, a large volume of medical reports including the same report of Dr Marc Walden dated 1 September 2020 and a statement by the respondent worker dated 28 May 2021. The appellant opposed the application and filed detailed submissions dated 27 September 2021. At conciliation/arbitration on 25 January 2022 before Member Wright, the respondent worker discontinued that application. On 27 January 2022, Member Wright issued a COD making orders that the application was discontinued (COD dated 27 January 2022).
Further Proceedings (Matter No. W4287/22) – 8 July 2022
On 15 June 2022, the respondent worker sought agreement from the appellant that the high needs worker threshold had been exceeded. On 4 July 2022, the appellant disputed the respondent worker’s status as a high needs worker.[23]
[23] The application and response are not contained in the materials filed in these proceedings but are referred to in the appellant’s chronology attached to the Appeal Application; in the appellant’s submissions dated 1 June 2023 at [22], and in the opening of the arbitration on 9 August 2022, and this was not disputed by the respondent worker.
On 8 July 2022, the respondent worker filed a miscellaneous application in the Commission to determine whether she was entitled to a further assessment by a medical assessor. This application was assigned Matter No. W4287/22. Those proceedings were dismissed by Member Wright at the preliminary conference on 9 August 2022.
Current Reconsideration Application (Matter No. 2754/18) – 23 August 2022
On 23 August 2022, the respondent worker wrote a letter to the Commission in respect of the Second Claim proceedings, being in Matter No. 2754/18 which sought a reconsideration of the COD dated 4 April 2019 “and any previous Certificates of Determination that may prevent the [respondent] worker from filing an Appeal Against the Medical Assessment Certificate of Dr Lewington” (Current Reconsideration Application). Submissions were attached to that letter. The appellant filed submissions opposing the Current Reconsideration Application dated 14 September 2022. The matter was listed for a conciliation/arbitration hearing on 15 November 2022 before Member Inglis, after which a direction was made for additional written submissions. Those additional submissions were filed in November and December 2022.
Member Inglis was unable to complete the matter and it was transferred to Senior Member Beilby.
On 9 May 2023, Senior Member Beilby issued a COD and Statement of Reasons.[24] Senior Member Beilby set aside the COD “dated 25 January 2017”. The date was a typographical error and it was corrected on 24 July 2023 to refer to the COD dated 4 April 2019.
[24] Cannell v Secretary, Dept of Communities and Justice [2023] NSWPIC 215 (reasons).
Appeal
On 6 June 2023, the appellant filed an appeal against the COD of Senior Member Beilby on four grounds:
(a) Ground One: The Senior Member erred in exercising the discretion to set aside the Certificate of Determination dated 4 April 2019.
(b) Ground Two: The Senior Member erred at law in her application of Sch 1, cl 14D of the Personal Injury Commission Act 2020 (2020 Act) and subsequently committed jurisdictional error by exercising a discretion under s 350(3) of the 1998 Act.
(c) Ground Three: The Senior Member erred at law in finding that this matter amounted to a ‘threshold dispute’ that was distinct from a claim for lump sum compensation, and that the MAC dated 2 November 2018 could be appealed to determine a threshold dispute.
(d) Ground Four: The Senior Member erred at law in failing to address the appellant’s argument relating to the impermissibility of a second appeal of the MAC dated 2 November 2018.
ON THE PAPERS
I have read the material in this matter including all of the various applications, the clinical notes, the medical reports and the written submissions of both parties. I have read and considered the Senior Member’s Statement of Reasons. Both parties submit that it is appropriate for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
Pursuant to s 52(3) of the 2020 Act, I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to the monetary limit pursuant to s 352(3) of the 1998 Act have been met.
There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met.
Interlocutory or final decision
The appellant contends that the Senior Member’s decision is not an interlocutory decision and therefore leave is not required pursuant to s 352(3A) of the 1998 Act.
In Licul v Corney,[25] Gibbs J (as his Honour then was) said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (footnotes omitted)
[25] [1976] HCA 6; 180 CLR 213.
The Senior Member’s determination was made in relation to the respondent worker’s application for reconsideration of the COD dated 4 April 2019. The reason for that application was because, on the respondent worker’s view, in order to apply to have the Amended MAC issued by Dr Lewington on 2 November 2018 (and confirmed by the Appeal Panel on 27 February 2019) reconsidered, the COD dated 4 April 2019 first had to be revoked.
The appellant submits that the decision of the Senior Member was a final one. The respondent worker contended that the application was an interlocutory one but that it satisfies the requirements for leave to appeal and cited Scone Race Club Limited v Cottom.[26]
[26] [2021] NSWPICPD 33 (Cottom), [15]–[22].
The issue of whether a determination of this kind is interlocutory in nature was considered by Wood DP in DGL (Aust) Pty Ltd v Martino.[27]
[27] [2023] NSWPICPD 30 (DGL).
The Deputy President was taken to the Presidential decisions in Coates Hire Operations Pty Limited v Geddes[28] and Visy Board Pty Limited v Nguyen.[29] Both of those decisions involved appeals from determinations of arbitrators about a finding of injury before a remittal for assessment of the injured worker’s permanent impairment. Both of those decisions found that there had been a final decision which determined liability and that therefore, the determination was not interlocutory within the meaning of the then s 352(8) of the 1998 Act.
[28] [2008] NSWWCCPD 120.
[29] [2010] NSWWCCPD 101.
However, Wood DP in DGL noted that these two cases were inconsistent with a number of subsequent Presidential decisions including Mosawi v Baron Forge (NSW) Pty Ltd[30] in which the President found that a determination of injury prior to a medical assessment was interlocutory in nature. Wood DP also referred to Moore v Greater Taree City Council[31] and South Western Sydney Area Health Service v Edmonds.[32] In the latter case, the Court of Appeal held that an arbitrator’s determination in relation to injury but prior to the claim being referred to an approved medical specialist, was an interlocutory decision. On a consideration of those authorities, Wood DP found that the decision was interlocutory in nature and that therefore leave to appeal was required.
[30] [2022] NSWPICPD 48.
[31] [2009] NSWWCCPD 17.
[32] [2007] NSWCA 16.
In my view, the setting aside of the COD dated 4 April 2019 did not finally dispose of any rights. Indeed, it was designed to be an interim step for the respondent worker to pursue a further permanent impairment assessment.
Accordingly, in conformity with the decisions referred to in DGL, I find that the decision was interlocutory in nature. Leave to appeal pursuant to s 352(3A) is therefore required.
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant made submissions in support of the grant of leave (in the alternative to its primary submission that the decision was a final one).[33] The appellant submitted that leave should be granted because the issue of whether the Senior Member had jurisdiction to revoke (sic) the COD dated 4 April 2019 pursuant to s 350(3) of the 1998 Act (as it then stood) should be determined prior to the respondent worker taking any further action to pursue an increase in the level of her permanent impairment. Further, the appellant submitted that a number of issues raised by the appellant were not properly considered or determined by the Senior Member in relation to the exercise of the discretion under s 350(3) of the 1998 Act.
[33] Appellant’s submissions dated 1 June 2023, [32].
I accept both of those submissions. The issue of whether there was jurisdictional error or an error of law in relation to the finding of jurisdiction under the savings and transitional provisions (noting that they may not be the same thing) is obviously a matter which is necessary to ascertain for the proper and effective determination of this dispute.
Accordingly, I am of the opinion that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined.
I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.
PRINCIPLES ON APPEAL
In terms of the ambit of the appeal, the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[34] that by reason of s 352(5) of the 2020 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. There can be no appellate intervention without a finding that there has been error.
[34] [2022] NSWCA 138, [11].
Here, the grounds of appeal are all directed to alleged errors of law.
THE MATERIALS AND SUBMISSIONS AT FIRST INSTANCE
Medical evidence
Given that the appeal is based on alleged jurisdictional error or errors of law, it is not necessary to go into the factual material and medical reports concerning the respondent worker’s injuries in any great detail. However, it is important to note the following issues.
First, there has only been one claim of injury, that of the incident on 3 October 2013.
Second, the nature of the injury the subject of the claim has remained the same throughout all of the various applications made by the respondent worker and that is, CRPS Type I. This was the medical condition on which the assessments were made in the following reports:
(a) Dr Bodel dated 1 November 2017 (for the respondent worker);[35]
(b) Dr Panjratan dated 7 December 2017 (for the appellant);[36]
(c) Dr Tame dated 12 December 2017 (for the respondent worker); [37]
(d) Dr Panjratan dated 29 January 2018 (for the appellant);[38]
(e) Dr Lewington (AMS) dated 16 August 2018 and 2 November 2018 (AMS);
(f) MAP dated 27 February 2019;
(g) Dr Marc Walden dated 1 September 2020 (for the respondent worker),[39] and
(h) Dr Bodel dated 18 March 2022 (for the respondent worker).[40]
[35] Reply, pp 15–23.
[36] Reply, pp 1–10.
[37] ARD, p 1–2.
[38] Reply, pp 11–12.
[39] Attachments to 6 September 2021 Reconsideration Application, pp 103–116, noting that although the onset of PTSD is noted, the WPI assessment is restricted to CRPS – see Appendix 3 (p 119).
[40] Attachments to Current Reconsideration Application, p 133. I note that Dr Bodel does not use the term ‘CRPS’ but discusses the respondent worker’s condition as a deterioration of her pre-existing condition, which he diagnosed in 2017 as CRPS.
Third, in order to substantiate the assertion that there had been a deterioration in her condition, the respondent worker predominantly relied on a comparison of the reports of Dr Bodel dated 1 November 2017 and 18 March 2022, and the report of Dr Marc Walden dated 1 September 2020.
Written submissions in previous applications
A large number of written submissions were filed in the various applications made by the respondent worker. I summarise them below in order to identify the matters that were raised and the manner in which the respondent worker put her claims over time.
Respondent worker’s submissions dated 16 May 2019 (2019 Reconsideration Application)
The respondent worker filed no formal submissions in relation to the 2019 Reconsideration Application. Rather the letter in which the application was made contained an assertion that the report of Dr Osborne (treating knee surgeon) dated 1 April 2019[41] (which had been previously served) established that the worker was recommended for a TKR. Based on that, the respondent worker contended that she had not reached a situation of ‘maximum medical improvement’. The respondent worker sought a reconsideration or a referral for further assessment of the Amended MAC as an alternative to an appeal against the MAP decision dated 27 February 2019.
[41] Attachments to 6 September 2021 Reconsideration Application, pp 61–61.
Appellant’s submissions dated 5 June 2019 (2019 Reconsideration Application)
The appellant’s submissions addressed each of the statutory provisions relied upon by the respondent worker in the 2019 Reconsideration Application. It submitted that s 325(3) of the 1998 Act was of no assistance because the fact that the respondent worker was recommended for further right knee surgery did not mean that there was an obvious error in the Amended MAC. Further, it submitted that because the respondent worker was not assessed as needing the surgery as at the date of the initial medical assessment, the worker was deemed to have reached ‘maximum medical improvement’.
In relation to s 327(6) of the 1998 Act, the appellant submitted that this would only permit a referral back to the approved medical specialist if the matter could otherwise have proceeded on appeal under s 327 of the 1998 Act. However, because the matter could not have been the subject of an appeal by reason of the operation of s 327(7) of the 1998 Act, this provision was of no support to the respondent worker’s application.
In relation to s 329(1)(a) of the 1998 Act, the appellant submitted that this provision empowered the former WCC to refer the matter back to the approved medical specialist (Dr Lewington) and relied upon the decision in Read v Liverpool City Council[42] which held that s 329 may have been intended to provide a remedy where ‘the dictates of justice require further referral for assessment’. The appellant submitted that given the history of the proceedings, the dictates of justice did not enliven the provision.
[42] [2007] NSWSC 320.
In relation to s 350(3) of the 1998 Act, the appellant submitted that the term “Commission” in that section referred to an arbitrator or Presidential member and therefore did not have any application to a decision of an Appeal Panel. As such, it argued that s 350(3) provided no avenue for relief for the respondent worker.
Finally, the appellant submitted that s 66(1A) of the 1987 Act provides that only one assessment can be made for permanent impairment compensation in respect of permanent impairment that results from an injury.
This 2019 Reconsideration Application was dismissed by a decision made by Ms Annette Farrell on 11 July 2019. I will deal with this further below.
Respondent worker’s submissions dated 6 September 2021 (2021 Reconsideration Application)
I note that these submissions are dated ‘3 September 2021’. However, the 2021 Reconsideration Application was not lodged until 6 September 2021. I therefore assume that these submissions were filed at the same time as the application.
The respondent worker submitted that since the (original) MAC dated 16 August 2018, the respondent worker’s right lower extremity injury had deteriorated and noted that the respondent worker had undergone a right TKR on 14 August 2019.
Curiously, no mention was made in these submissions of the MAP confirmation of the Amended MAC on 27 February 2019.
Further, I note that the 2021 Reconsideration Application made no reference to any statutory provision to underpin the application.
It was submitted that the respondent worker had not achieved maximum medical improvement and relied on the report of Dr Walden dated 1 September 2020. The respondent worker asserted that at the time of the original MAC, the respondent worker did not meet the requirement for CRPS.
The respondent worker submitted that the application for reassessment of her WPI was being made for the purposes of s 39 of the 1987 Act. The respondent referred to the decisions of O’Callaghan v Energy World Corporation Limited[43] and Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW.[44]
[43] [2015] NSWWCC 261 (O’Callaghan).
[44] [2020] NSWCA 113; 102 NSWLR 941 (Hochbaum), at footnote [31].
Appellant’s submissions dated 27 September 2021 (2021 Reconsideration Application)
The appellant noted that the respondent worker made no reference to the fact that she had already made an application for reconsideration, and that the COD dated 4 April 2019 remained in place. The appellant’s submissions then set out a chronology that included the 2019 Reconsideration Application.
The appellant noted that s 57 of the 2020 Act was not available to support the application because the definition of “Commission” in s 5 of the 2020 Act meant the ‘Personal Injury Commission’ (Commission) and s 57 of the 2020 Act did not give the Commission jurisdiction to review a decision made by the former WCC.
The appellant then submitted that the respondent worker was required to satisfy the savings and transitional provisions in Sch 1, cl 14D of the 2020 Act in order to have her application heard and thus, she was required to establish that she had an ‘unexercised right’ to commence the proceedings. In that regard, the appellant contended that the respondent worker had already exercised her right for reconsideration by virtue of the 2019 Reconsideration Application. For that reason, the appellant submitted that the 2021 Reconsideration Application should be dismissed.
Further, the appellant submitted that s 66(1A) of the 1987 Act meant that the determination of permanent impairment had been finalised. The appellant referred to the decision of Stella Maris College v Robin-True[45] and noted that in a similar application, a referral to an approved medical specialist was set aside on the basis of the decision in Cram Fluid Power Pty Limited v Green.[46]
[45] [2015] NSWWCCPD 57 (Robin-True).
[46] [2015] NSWCA 250 (Cram Fluid).
The appellant noted that the 2021 Reconsideration Application was being made even though the respondent worker had already sought reconsideration on 27 November 2018 and again on 19 May 2019 (sic, 16 May 2019).
The appellant submitted that an appeal against a medical assessment can only be made by a party to a ‘medical dispute’ under s 327(1) of the 1998 Act and asserted that, on the basis of the findings in Cram Fluid and applied in Robin-True, any such proposed appeal is defeated by the provisions of s 66(1A) of the 1987 Act.
The appellant then made submissions about the application of s 350(3) of the 1998 Act (as it existed prior to the establishment of the Commission). The appellant submitted that the principles set out in Samuel v Sebel Furniture Limited[47] applied to any consideration of s 350(3) of the 1998 Act. The appellant submitted that those considerations militated strongly against the exercise of any discretion in favour of the respondent worker’s application for reconsideration. In particular, the appellant noted that there was no explanation to explain the delay in bringing the application, some 12 months after Dr Walden’s report about the respondent worker’s further deterioration. The appellant relied on considerations 3, 4 and 8 in Samuel.
[47] [2006] NSWWCCPD 141 (Samuel).
The appellant also contended that the application was estopped by either res judicata or issue estoppel. The appellant referred to the High Court’s decision in Blair v Curran[48] in which Dixon J (at 531) held that a determination directly involving an issue of fact or law disposes once and for all the issues, so that it cannot afterwards be raised by the same parties. In that regard, the appellant submitted that the MAP had determined the respondent worker’s permanent impairment by its confirmation of the Amended MAC on 27 February 2019. The appellant submitted that the estoppel argument was supported by s 66(1A) of the 1987 Act.
[48] (1939) 62 CLR 464 (Blair).
In the alternative, the appellant argued that issue estoppel should apply and again referred to the decision in Blair citing the passage from the Dixon J at 532.
I note that the decision in Blair was in relation to a judicial determination.
The appellant also relied on the decision in Ramsey v Pigram[49] in which Barwick CJ held that issue estoppel was:
“… available to prevent the assertion in … proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities ... The issue thus determined, as distinct from the cause of action in relation to which arose, must have been identical in each case.”
[49] (1967) 118 CLR 271 (Ramsay v Pigram), 276.
The appellant asserted the degree of permanent impairment was part of the medical dispute that was determined by the Amended MAC and that the current application posed the same question, thus enlivening issue estoppel.
The appellant submitted that the decision in O’Callaghan had no application to the current proceedings and that the citation from Hochbaum did not assist the respondent worker in overcoming the issues with the present application.
The 2021 Reconsideration Application was discontinued by the respondent worker and a COD dated 27 January 2022 was issued making an order to that effect.
Submissions in Current Reconsideration Application
Respondent worker’s submissions dated 23 August 2022 (Current Reconsideration Application)
These submissions are identical to the submissions made by the respondent worker in the 2021 Reconsideration Application dated 3 September 2021, save for an additional paragraph in which the appellant referred to the decision in Sleiman v Gadalla Pty Ltd[50] (Sleiman) at [96].
[50] [2021] NSWCA 236 (Sleiman).
That paragraph states as follows:
“For those reasons, Mr Sleiman’s primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar’s Delegate’s decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by Mr Sleiman is unnecessary, but the Delegate’s decision dismissing his application should be quashed and the application remitted for determination in accordance with law.”
The respondent worker made no submissions as to how that paragraph applied to the Current Reconsideration Application.
The respondent worker’s submissions did not identify the statutory provisions on which she relied for the application.
Appellant’s submissions dated 14 September 2022 (Current Reconsideration Application)
The first part of the appellant’s submissions was in identical form to those of its submissions dated 27 September 2021 in relation to the 2021 Reconsideration Application. However, these submissions then expanded considerably, as follows.
First, in relation to Sch 1, cl 14D of the 2020 Act, the appellant submitted that the respondent worker did not have an ‘unexercised right’ of reconsideration because she had made the 2019 Reconsideration Application. The appellant submitted that the 2019 Reconsideration Application was based on the WCC determination (being the COD dated 4 April 2019) because it contained the extent of the WPI for the purposes of the respondent worker’s lump sum compensation under s 66 of the 1987 Act.
The appellant contended that the 2019 Reconsideration Application was based on the assertion that the respondent worker had been recommended for TKR surgery and that the Current Reconsideration Application was based on the fact that the respondent worker had actually undergone that surgery, and so the two applications were based on similar grounds.
The appellant then made submissions in the alternative that, if it was found that the Commission did have jurisdiction to reconsider the COD dated 4 April 2019, then the principles referred to in Samuel should be considered.
In that regard, the appellant submitted that there was nothing to explain the delay between the TKR surgery on 14 August 2019 and the bringing of the Current Reconsideration Application, some three years later, on 23 August 2022. It submitted that the absence of an explanation for the delay was a factor which counted against the exercise of the discretion.
The appellant noted that the respondent worker relied on the reports of Dr Walden dated 1 September 2020 and Dr Bodel dated 18 March 2022. The appellant submitted that those doctors had vastly differing opinions as to how the respondent worker’s condition had deteriorated. Accordingly, the respondent worker could not point to the reason for her deterioration and this was a factor that also militated against the exercise of discretion.
The appellant again relied on s 66(1A) of the 1987 Act and submitted that it was not open to the respondent worker to make an application to increase her WPI assessment. The appellant referred to the Court of Appeal decision in Skates v Hills Industries Ltd[51] at [46]. The appellant’s argument was that the ‘medical dispute’ between the parties had been resolved by the Amended MAC, which was then the subject of the COD dated 4 April 2019 and that, at no point prior to the determination of the ‘medical dispute’ did the respondent worker amend the nature of the dispute to include an application that the worker exceeded the threshold for a high needs worker.
[51] [2021] NSWCA 142 (Skates).
The appellant submitted that in order to proceed to an appeal against the Amended MAC, the respondent worker must establish that she is a party to a ‘medical dispute’ which includes the high needs threshold, so that she can satisfy for the requirement in s 327(1) of the 1998 Act. However, it was argued that the only ‘medical dispute’ in the proceedings (Matter No. 2754/18) is the dispute about lump sum compensation under s 66 of the 1987 Act.
The appellant referred to and relied on the decision in Lizdenis v Centrel Pty Limited.[52] In that case, the worker had applied, pursuant to s 350(3) of the 1998 Act, for a reconsideration of a COD. That COD provided that the worker had suffered 14% WPI following the issuing of an MAC. An application to appeal the MAC, based on s 327(3)(c) and (d) of the 1998 Act, had been unsuccessful and the MAC was confirmed by an MAP decision. The worker therefore pursued a reconsideration to rescind the COD. The Arbitrator found that a claim for permanent impairment compensation is distinct from a threshold claim for the purposes of s 39 referring to the decisions in JC Equipment Hire Pty Ltd v Registrar of the Workers Compensation Commission of NSW,[53] Wilkinson v Perisher Blue Pty Ltd[54] and Wattyl Australia Pty Limited v McArthur.[55] The Arbitrator found that s 66(1A) could not prevent a worker from pursuing a threshold claim by way of an appeal and utilising s 327(3)(a) where there had been a deterioration of the worker’s condition. The appellant contended that the decision in Lizdenis, whilst not binding, was of assistance and should be relied upon to support the view that s 66(1A) operates to prevent an appeal based on a deterioration of condition insofar as the claim is for further lump sum compensation, which (because of the ‘dispute’) was the basis of this reconsideration application.
[52] [2016] NSWWCC 21 (Lizdenis).
[53] [2008] NSWCA 43 (JC Equipment).
[54] [2012] NSWCA 250.
[55] [2008] NSWCA 326.
The appellant then made the same submissions, as it had done in the 2021 Reconsideration Application, that the Current Reconsideration Application should not be considered by reason of res judicata or issue estoppel. The appellant again relied on the decisions in Blair and Ramsey v Pigram.
However, the appellant also acknowledged that there was no estoppel in a changing situation and made reference to the decision in Abou-Haidar v Consolidated Wire Pty Limited[56] (Abou-Haidar) but stated that the principle in that case should not apply in the context of an appeal. The appellant asserted that any conclusion to the contrary would allow for an unlimited number of appeals to be brought against an MAC. The appellant referred to the decision in Condensing Vaporisers Australia Pty Limited trading as RJ Tinker and Son v FDC Construction and Fitout Pty Limited (No. 2)[57] as authority that double appeals are not favoured by the courts.
[56] [2010] NSWWCCPD 128 (Abou-Haidar).
[57] [2014] NSWCA 89.
The appellant submitted that the issue of whether or not there had been a deterioration or whether new evidence could be relied upon had already been determined. Therefore, the respondent worker could not appeal the amended MAC under s 327(3) of the 1998 Act as she had already done so and a further appeal would create a situation in which litigation would proceed indefinitely.
The appellant, as it did in its submissions in the 2021 Reconsideration Application, denied the applicability of the decisions in O’Callaghan and Hochbaum.
In relation to the decision in Sleiman, the appellant submitted that this decision had no application because the respondent worker was not relying on s 378 of the 1998 Act. The appellant also cited paragraphs [91] to [95] in Sleiman and submitted that it was only authority for the proposition that the application for reconsideration in that case should have been framed under s 378 and therefore it did not support the respondent worker’s case.
Respondent worker’s submissions in reply dated 24 October 2022 (Current Reconsideration Application – as amended)
In these submissions, the respondent worker engaged with the argument that in order for her application to proceed she needed to satisfy the savings and transitional provisions found in Div 4A, Pt 2 of Sch 1 of the 2020 Act.
The respondent worker submitted that there had been no exercise of any right because the exercise of the right (referring to the 2019 Reconsideration Application) was rejected by Ms Farrell and, in any event, it was submitted that Ms Farrell had not been ‘permitted’ to make the decision she did on 11 July 2019 by reason of the decision in Murray v Woolworths Group Limited.[58] The respondent worker did not spell out any further reasoning for that submission.
[58] [2020] NSWSC 1033 (Murray).
The respondent worker submitted that she had never disengaged her right to exercise the reconsideration power in the former s 378 of the 1998 Act and that it remained operative and relevant to the Current Reconsideration Application, relying on the decision in Sleiman at [90]. The respondent worker then submitted that applying those principles, Ms Farrell's decision was incorrect insofar as it relied on s 378 of the 1998 Act.
The respondent worker agreed that the principles in Samuel were applicable to the exercise of the discretion under the former s 350(3) of the 1998 Act. In that regard, the respondent worker submitted that the TKR surgery had not been undertaken prior to the ‘rejection of the application’ (I assume that this is a reference to the 2019 Reconsideration Application).
The respondent worker contended that the condition of ‘CPRS’ (sic), as assessed by Dr Walden in his report dated 1 September 2020 was not available at the time of the ‘earlier application’ (again, I assume that this is a reference to the 2019 Reconsideration Application). The respondent worker submitted that her claim is that the ‘CPRS’ (sic) condition has deteriorated.
The respondent worker submitted that the letter seeking a reconsideration or referral for further assessment of the MAC (again I assume that this is a reference to the 2019 Reconsideration Application) was a clear and unambiguous claim to be afforded procedural fairness. However, the respondent worker did not elucidate how that was said to be the case. I note that in the letter dated 6 May 2019 (being the 2019 Reconsideration Application) there was no reference to any claim for procedural fairness.
In relation to the deterioration, the respondent worker submitted that a comparison of the reports of Dr Bodel dated 1 November 2017 and that dated 18 March 2022 revealed a deterioration from 17% WPI to 21% WPI. However, no reference was made of the fact that the Amended MAC and the COD dated 4 April 2019 stipulated that the respondent worker’s WPI was 12%.
The respondent worker contended that these ‘incontrovertible facts’ show that the application has merit and satisfied the criteria for reconsideration on the principles in Samuel. However the respondent worker did not identify which facts were said to be incontrovertible or which of the Samuel criteria she was referring to.
The respondent worker submitted that the chronology demonstrated that she had been “‘banging on the door’ of the variously constituted commissions constantly through the period” and that at, all relevant times she had been asserting a right to have the WPI reassessed for the purposes of s 39 of the 1987 Act. However, the respondent worker did not engage with the chronology at all, nor provide any explanation for the series of applications she had made and the various discontinuances.
The respondent worker, relying on the decisions in Sleiman and Hochbaum, submitted that the reassessment of WPI for the purposes of s 39 of the 1987 Act could be pursued.
The respondent worker stated that the reconsideration should be dictated by the overriding principles for the “fair, just, timely and cost-effective resolution of workers compensation disputes”. No submission was made as to how the respondent worker’s conduct complied with that principle.
Finally, the respondent worker submitted that the construction of the former s 378 is analogous to that of s 350 with the intent to “leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties” and referred to the decision in Hilliger v Hilliger.[59]
[59] (1952) 52 SR (NSW) 105 (Hilliger)
In the final part of the respondent worker’s submissions (at paragraph [19]), the application was fundamentally changed. Instead of pursuing a reconsideration under s 350(3) of the 1998 Act, the respondent worker submitted that:
“[T]he Member should exercise the discretion conferred under section 378 and direct:
(a) The MAC and COD be revoked, on the grounds that the [respondent worker’s] WPI has not reached maximum medical improvement.
(b) Alternatively, the appeal be remitted to the President, for remittal to a medical assessor appointed to re-assess the [respondent worker’s] whole person impairment.”
Appellant’s submissions dated 11 November 2022 (Current Reconsideration Application – as amended)
In these submissions, the appellant notes that the respondent worker’s submissions as to why Ms Farrell’s decision on 11 July 2019 (in respect of the 2019 Reconsideration Application) should be disregarded are not clear but assumes that it is an assertion that Ms Farrell’s decision was ‘a purely administrative one’, based on the decision in Murray. The appellant submitted that the decision in Murray could be distinguished because:
(a) the decision in Murray rejected a request for a teleconference due to an alleged error in a COD, whereas in this matter, the decision related to a substantive application for a reconsideration under ss 325(3), 327(6), 329(1)(a) and 350(3) of the 1998 Act and that Ms Farrell’s decision was a substantive one – that the operation of s 378 of the 1998 Act prevented the application;
(b) in this matter, both parties made submissions in relation to the application which did not occur in Murray;
(c) by relying on s 378 of the 1998 Act in this matter, it was clear that Ms Farrell was exercising the power of the Registrar;
(d) the statutory framework at the time of Ms Farrell’s decision included that the Registrar could exercise all the functions of an arbitrator including those to dismiss proceedings before the WCC and that the Registrar could delegate to any member of staff any of the Registrar’s functions under s 371(1) to (3) of the 1998 Act;
(e) under s 378(1) the Registrar had a statutory obligation to reconsider any matter that had been dealt with by an Appeal Panel or Registrar under s 378(1) of the 1998 Act;
(f) Ms Farrell, in declining the 2019 Reconsideration Application, could only have been exercising delegated power from the Registrar, and
(g) in conformity with Hot Holdings Pty Ltd v Creasy,[60] Ms Farrell’s decision was subject to judicial review but the respondent worker elected not to pursue any such judicial review.
[60] [1996] HCA 44; 185 CLR 149 (Creasy).
Accordingly, the appellant contended that the 2019 Reconsideration Application meant that the respondent worker had exercised that right and therefore the Commission had no jurisdiction to deal with the Current Reconsideration Application.
Further, the appellant submitted that because the 2019 Reconsideration Application specifically sought reconsideration of the MAC “dated 27 February 2019”, the respondent worker was clearly seeking a reconsideration of the MAP decision handed down on that date. As such, given that a decision of a MAP could only be reconsidered under s 378, the 2019 Reconsideration Application must be seen to have included reliance on that provision. As such, the Current Reconsideration Application (now being based on s 378) was not available because that right had already been exercised.
The appellant went on to make submissions as to the factors going to the exercise of the discretion under s 350(3) of the 1998 Act as follows.
In relation to the delay, the appellant rejected the respondent worker’s submissions that she had been “banging on the door” since the COD dated 4 April 2019 was issued and that she had “at all relevant times … been asserting a right to have the WPI re-assessed pursuant to section 39.” The appellant submitted that notwithstanding the multiple applications, the respondent worker discontinued each of those proceedings and has not provided any explanation for doing so.
In relation to the evidence available as to a deterioration in the respondent worker’s condition, the appellant submitted that because there is such a disparity in the medical reports relied on by the respondent worker as to the cause of her alleged deterioration, it cannot be accepted that she has established deterioration of her condition as required in Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission.[61]
[61] [2007] NSWCA 149.
The appellant again submitted that s 66(1A) of the 1987 Act would operate to prevent any further appeal and noted that the respondent worker had not addressed this legal issue at all. The appellant noted that in Murray at [63], Campbell J doubted whether a subsequent application to appeal from a MAC would be competent.
The appellant noted that the respondent worker had not addressed the issue of estoppel.
Finally, the appellant submitted that the respondent worker had shifted the grounds upon which the application for reconsideration was being made. The appellant noted that initially, the respondent worker sought a reconsideration of the COD dated 4 April 2019 so that she could pursue a further appeal of the Amended MAC. However, the respondent worker had now changed the grounds upon which she wished to proceed and, as and from her submissions dated 24 October 2022, she asserted reliance on the former s 378 of the 1998 Act and requested that her application is now one to have the MAP decision of 27 February 2019 reconsidered.
In the context of that changed application, the appellant submitted that the 2019 Reconsideration Application had already been determined on the basis that s 378 of the 1998 Act prohibited any referral back to the MAP and accordingly, the Commission had no jurisdiction to entertain the respondent worker’s case. Further, the appellant submitted that the Commission could not exercise the discretion under s 378 of the 1998 Act without offending s 66(1A) of the 1987 Act because a reconsideration of the MAP decision dated 27 February 2019 would change the outcome of the ‘medical dispute’ between the parties. The appellant submitted that the combined application of ss 350(1) and 378(5) of the 1998 Act results in it being impermissible to reconsider the Appeal Panel decision because of the issuance of the COD dated 4 April 2019.
Respondent worker’s submissions dated 21 November 2022 (Current Reconsideration Application – as amended)
In these submissions, the respondent worker contended that the decision in Murray binds the Commission and that the decision of Ms Farrell dated 11 July 2019 must be considered as one of “a purely administrative nature”. Accordingly, it was submitted that the respondent worker had not exercised the right to have the Commission determine ‘the reconsideration’. However, I note that in this part of her submissions, the respondent worker did not identify which reconsideration she was discussing – that under s 350(3) originally contended for, or the one contended for in her submissions dated 24 October 2022, being a reconsideration under s 378 of the 1998 Act.
In the next part of her submissions, the respondent worker contended that the Commission did not need to determine anything other than the merit of the application for reconsideration and submitted that it was not necessary to deal only with the application under s 350(3) of the 1998 Act, placing reliance on the decision in Sleiman at [95].
The respondent worker submitted that she was not seeking any further lump sum compensation but rather a determination of her rights to continuing compensation which would otherwise be extinguished under s 39 of the 1987 Act.
The respondent worker submitted that both Sleiman at [95] and Hochbaum at [51]–[58] (and elsewhere), dealt with the question of whether an earlier MAC must be set aside before a determination under s 39 of the 1987 Act was made – but did not say what that was.
On that basis, the respondent worker submitted that she should be assessed at 21% WPI but it is not clear from the submissions as to why this should be the inevitable outcome of a reconsideration of the Amended MAC.
On the basis of Sleiman, the respondent worker submitted that the dispute should be considered to be an application under s 378 of the 1998 Act.
In relation to the merits of that application, the respondent worker contended that, on the basis of the reports of Dr Walden dated 1 September 2020, there is evidence that her ‘CPRS’ (sic) had worsened and also relied on the reports of Dr Bodel dated 1 November 2017 and 22 August 2022. The respondent worker submitted that this “fits the criteria for the grant of discretionary relief prescribed in section 379 [sic]”. I note that there was no former s 379 of the 1998 Act as at November 2022, as such I assume that this is a typographical error and the reference is meant to be to s 378. There was no elucidation of what the “criteria for the grant of discretionary relief” were in relation to s 378 of the 1998 Act. I note that the terms of the former s 378 referred only to a criterion of “obvious error” (see paragraph [319] below).
Appellant’s submissions dated 13 December 2022 (Current Reconsideration Application – as amended)
In these submissions, the appellant contended that the decision of Ms Farrell on 11 July 2019 was an exercise of the power of the Registrar of the WCC and that the 2019 Reconsideration Application should be seen as dealing with both an application under the former ss 350(3) and 378 of the 1998 Act. Accordingly, the appellant contended that the Commission has no jurisdiction under the savings and transitional provisions to hear and determine the matter – because there is no ‘unexercised right’.
In relation to the application of s 378 of the 1998 Act, the appellant submitted that there can be no reconsideration under that provision unless and until the COD dated 4 April 2019 is revoked. In that regard, the appellant says that the respondent worker’s reliance on the decision in Cottom is misplaced because it was the subject of a successful appeal in which the original decision was set aside.
Dr Bodel was qualified to provide a report supporting the Current Reconsideration Application and in that report dated 18 March 2022, he opined that the respondent worker has had a “fair” outcome for a TKR and his assessment was that she has a 21% WPI.
Clearly, the evidence as to the deterioration of the respondent worker’s condition following the TKR in August 2019 and the worsening of her CRPS was not evidence available at the time of the Amended MAC. I note that an attempt was made by the respondent worker to have the Amended MAC reconsidered on the basis of the then recommended TKR in May 2019. In my view, that application, on any view of it, was premature. An assessment of any deterioration (or improvement) in the worker’s level of permanent impairment could only really have been made after the TKR had been performed.
As I have stated above, a further lump sum claim under s 66 of the 1987 Act was made by the respondent worker on 15 December 2020 supported by the report of Dr Walden dated 1 September 2020. As such, I am of the view that as and from, at least, 1 September 2020 the respondent worker had available the new evidence it needed.
Again, I acknowledge that the report from Dr Bodel was obtained in March 2022 but, as stated above, there is no indication as to why this report was not obtained sooner.
The second part of this criterion is directed to whether the new evidence, if placed before the decision-maker, would have been likely to lead to a different result. The report of Dr Walden dated 1 September 2020 opined that the respondent worker was suffering from CRPS Type 1 of the right lower limb with Post Traumatic Stress Disorder and depressed mood and assessed her as having 37% WPI (but based solely on the CRPS).[150] As such, it is reasonable to find that this evidence, if accepted, would be likely to lead to a different result to the MAP decision which confirmed the Amended MAC.
[150] Attachments to 6 September 2021 Reconsideration Application, p 114.
However, overall and predominantly due to the unexplained delay in making the application, I find that this is not a factor which militates one way or the other in relation to the exercise of discretion.
The respondent worker in her original submissions contended that a reconsideration of the permanent impairment assessment was available on the basis of the decision in O’Callaghan.[151] However, that decision is not relevant at all to the current dispute. In O’Callaghan, the worker’s application was to add a body part that was not previously considered by the original medical assessor as part of an allegation that there has been a deterioration in the permanent impairment. There is no contention in this matter that the respondent worker is seeking to add additional body parts to the permanent impairment assessment which were not considered in the Amended MAC.
[151] 23 August 2022 Reconsideration Application, [7].
Further, for the reasons that I have given above in paragraphs [254] to [260] in relation to nature of the ‘dispute’ and the consequent scope of the jurisdiction of the Commission in this matter (Matter No. 2754/18), that her purpose is to achieve a higher WPI for the purposes of s 39 of the 1987 Act, that claim is not part of the ‘dispute’ that was referred to the WCC and/or the Commission.
Finally, it is clear that the Amended MAC is not subject to reconsideration under s 350(3) because that provision is concerned with decisions of the Commission constituted by an arbitrator or a Presidential member, not an assessment by an approved medical specialist. While a decision of an MAP in respect of an MAC can be reconsidered under s 378, that does not mean that the degree of permanent incapacity changes; it means that, upon reconsideration, the correct degree is determined and substituted. Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A.
Anshun estoppel
Under this principle, I consider the decision in Port of Melbourne Authority v Anshun Pty Ltd.[152] This principle from Samuel is directed to the failure to properly and diligently pursue the application.
[152] [1981] HCA 45; 147 CLR 589.
The Court of Appeal in Miller v Secretary, Department of Communities and Justice[153] carefully analysed why the principle of Anshun estoppel should apply to the statutory scheme in the workers compensation legislation.
[153] [2022] NSWCA 190 (Miller).
Ward P, who delivered the primary judgment, referred to the decision of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd:[154]
“The third form of estoppel is now most often referred to as ‘Anshun estoppel’, although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense.”[155] (emphasis added)
[154] [2015] HCA 28 (Tomlinson), [22].
[155] Miller, [95].
Ward P carefully went through all of the relevant authorities including where his Honour Kirby P (as he then was) held in O’Brien v Tanning Research Laboratories Inc:[156]
“... With the development of arbitration and of administrative tribunals, both of which enjoy significant standing and follow procedures akin to those used in the courts, there would appear to be no reasons of principle why, at least in cases such as the present, estoppel should not arise to prevent the needless re-opening or unwarranted re-agitation of matters formally concluded by an appropriate tribunal, according to law. ...”
[156] (1998) 14 NSWLR 601 (at 325).
Her Honour concluded that Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice. Her Honour found that Anshun estoppel applies to the workers compensation legislative scheme.
The issue therefore is whether or not the respondent worker unreasonably refrained from pursuing the application in earlier proceedings and if so, whether that should militate against the exercise of the discretion for the respondent worker to pursue the Current Reconsideration Application.
It is clear from the chronology set out at paragraph [369] above that the respondent worker made multiple attempts to have her WPI re-assessed. In my view, however, and in this I accept the appellant’s submissions, the respondent worker should have waited until after the TKR surgery and have an assessment made at that time as to whether there were any further symptoms which would increase her WPI.
In that regard the report of Dr Walden was available from 1 September 2020 in which he assessed the respondent worker’s WPI at 37%. I note however that that is only slightly more than the 36% WPI assessed by Dr Tame, the respondent worker’s treating pain management specialist in his report dated 12 December 2017 – well before the TKR surgery.
In any event, I find it appropriate to determine the Anshun estoppel issue as and from 1 September 2020. Putting aside the various letters and applications to the appellant’s insurer, the respondent worker commenced three sets of proceedings after that date:
(a) Matter No. W2466/21 commenced on 18 June 2021;
(b) the 2021 Reconsideration Application made on 6 September 2021, and
(c) Matter No. W4287/22 commenced on 8 July 2022.
I find that it was open and available to the respondent worker to have included in those three sets of proceedings the matters that it now agitates in the Current Reconsideration Application. I am particularly persuaded by the 2021 Reconsideration Application since it was in identical terms and there is no explanation given as to why the respondent worker did not pursue the claim at that time, having put the appellant and the Commission to the time and expense of addressing that claim.
Further, given that the respondent worker has been at pains to argue that what she is really seeking is a WPI assessment for the purposes of seeking further weekly payments under s 39 of the 1987 Act, the unexplained failure to pursue Matters W2466/21 and W4287/22 is wholly inconsistent with the fair, just, timely and cost-effective resolution of the disputes about this issue.
I find that the Anshun estoppel principles apply in this matter against the exercise of the discretion.
I interpolate here that Samuel was decided in 2006, before the High Court decisions in Tomlinson and UBS AG and in my view, the principles in relation to abuse of process enunciated in those decisions may also be utilised in relation a consideration of the exercise of the discretion under s 350(3) of the 1998 Act. I note that those principles arose in the context of the exercise of a discretion to grant a stay of proceedings which, like a refusal to exercise the discretion to conduct a reconsideration, has the effect that the proceedings go no further. As such, in my view, they may be apt. For example, those decisions include the following:
(a) Abuse of process may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings, or which ought reasonably to have been made or raised in the earlier proceeding, as well as attempts to re-litigate a claim that has been determined.[157]
(b) There is an overlap between abuse of process and Anshun estoppel.[158]
(c) Whilst not every claim that could have been brought in an earlier proceeding constitutes an abuse of process when raised in a later proceeding, if the claim should have been brought in the earlier proceeding it will be an abuse of process even though it may not be precluded by an estoppel.[159]
(d) In UBS AG, his Honour Justice Gageler (as he then was) said that the public interest is the timely and efficient administration of justice: at [72]; and that abuse of process was demonstrated because a party was required to respond to a proceeding which it had already gone to the cost and expense of bringing to completion (even though there had been no final determination on the merits): at [75].
(e) Relevant factors (in abuse of process) include significant delay in resolving the dispute, increased costs and the inconvenience of having to deal with the matter again after lengthy litigation.[160]
(f) Vexation arises from both significant delay and being required to deal again with claims that should have been resolved in the first proceeding.[161]
[157] Tomlinson, [26]; UBS AG, [39], [41].
[158] Tomlinson, [25]–[26]; UBS AG, [68]–[69].
[159] UBS AG, [43], [110], [111], [127]; Tomlinson, [26].
[160] UBS AG, [33].
[161] UBS AG, [46], [58].
However, as the parties have only focused on the principles enunciated in Samuel, I have restricted my consideration to the established principles concerning Anshun estoppel and, as set out above, it is my view that those principles militated quite strongly against the exercise of the discretion.
I note that the appellant also argued that res judicata and issue estoppel also applied.
The doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties.[162] Consistent with the findings in Miller I find that issue estoppel applies in the statutory scheme.
[162] Lambidis v Commissioner of Police (1995) 37 NSWLR 320.
Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings, between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue.
For issue estoppel to apply there must be the requisite level of identity between the issues in the prior decision and the issues for determination in the current litigation. The issues under consideration must be the same. Barwick CJ in Ramsay v Pigram held that it applies where:
“that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties ... The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.”[163]
[163] Ramsay v Pigram, 276.
This is because issue estoppel (and res judicata) are predicated on the desirability of finality in decision-making.[164]
[164] Murphy v Abi‑Saab (1995) 37 NSWLR 280.
However, issue estoppel and res judicata are to be applied strictly.[165] Issue estoppel will apply only to prevent the assertion in later proceedings of the precise matter of fact or law that has already been necessarily and directly decided in the earlier decision. There are three conditions which must exist for issue estoppel to apply:[166]
(a) the first decision was final;
(b) the same question has been decided, and
(c) the same parties, or at least parties with the same legal interest, are the same.
[165] Ramsay v Pigram; Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363, [47].
[166] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 935, per Lord Guest.
For the reasons set out above, I have found that the ‘decision’ of Ms Farrell on 11 July 2019 in relation to the 2019 Reconsideration Application was ‘no decision at all’. I note that the 2021 Reconsideration Application was discontinued and that although a COD was issued, it does not represent a finding on the question in issue. It follows that, on my view, there has been no prior binding decision and as such, I find that neither issue estoppel nor res judicata can apply in this matter.
Mistake on the part of the legal advisor
This issue can be dealt with quickly. The respondent worker’s solicitor does not allege any mistake in relation to the manner in which he has agitated the issue of seeking a reconsideration of the COD dated 4 April 2019 in order to have the Amended MAC set aside and a new WPI assessment made. As such, there is nothing to consider in relation to this principle.
Duty to do justice
I acknowledge that I have a duty to do justice between the parties according to the substantial merits of the case: s 354(3) of the 1998 Act. I note that in Hilliger it was held that the discretion in s 350(3) was made with the intent “to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties”.
In that regard, I have given the history of the matter due consideration. I have considered in detail all of the applications made and the submissions that have been made in support of those applications. I have carefully considered each of the principles enunciated in Samuel and I make my decision on those terms. As such, I have complied with s 354(3) of the 1998 Act.
CONCLUSION
I find that consideration of the discretionary factors in Samuel weigh against the exercise of the discretion under s 350(3) of the 1998 Act.
Accordingly, the Current Reconsideration Application is dismissed.
DECISION
For the reasons set out above, leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act.
I uphold all four grounds of the appeal.
The COD made by Senior Member Beilby dated 9 May 2023 and later amended on 24 July 2023, is revoked.
I have, pursuant to s 352(6A) of the 1998 Act corrected the identified errors in the Senior Member’s decision and made a new decision in its place. That decision is that the respondent’s application for reconsideration pursuant to s 350(3) of the 1998 Act is dismissed.
Kylie Nomchong SC
ACTING DEPUTY PRESIDENT
31 May 2024
6
32
0