Sereni v Wallgrove Convalescent Home Pty Limited T/as Wallgrove Nursing Home
[2006] NSWWCCPD 203
•25 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sereni v Wallgrove Convalescent Home Pty Limited t/as Wallgrove Nursing Home [2006] NSWWCCPD 203
APPELLANT: Maria Nadia Sereni
RESPONDENT: Wallgrove Convalescent Home Pty Limited t/as Wallgrove Nursing Home
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC3557-06
DATE OF ARBITRATOR’S DECISION: 17 May 2006
DATE OF APPEAL DECISION: 25 August 2006
SUBJECT MATTER OF DECISION: Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 – meaning of ‘decision’, estoppel
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Lamrocks
Respondent: Bartier Parry
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 17 May 2006 is confirmed.
No order as to costs
BACKGROUND TO THE APPEAL
On 6 June 2006 Maria Nadia Sereni (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 May 2006.
The Respondent to the Appeal is Wallgrove Convalescent Home Pty Limited t/as Wallgrove Nursing Home (‘the Respondent’).
The appeal arises out of orders made by an arbitrator at a teleconference in the matter, on 17 May 2006. Those orders relate to the referral of the Appellant to two approved medical specialists (‘AMSs’) to assess the Appellant’s permanent losses and impairments, relevant to her claim pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
There is some procedural history, which it is necessary to recount in part, to understand the positions of the parties on this appeal.
The Appellant was employed by the Respondent as an assistant nurse. She relies upon multiple injuries in the Respondent’s employ, ranging from 1980 to 22 February 1992, together with the ‘nature and conditions’ of her employment, from 1 July 1987 to the time her employment was terminated in 1992. She has suffered injury to the lower back, which has led to surgical procedures. There are allegedly consequential losses involving the legs, and sexual organs, in addition to the back impairment. Her statement of 28 February 2006 indicates she has not worked since the last incident, on 22 February 1992.
There is, annexed to the Application to Resolve a Dispute (‘the Application’), a copy of an award of the Compensation Court of NSW (‘the Court’) dated 1 June 1995, in matter number 3917 of 1993. The awards contained therein were entered by consent, by Manser J. Those proceedings involved the Appellant and the Respondent, together with a second employer, Uniting Church in Australia New South Wales Synod (‘the Church’). The consent awards provided for redemptions under the provisions of section 15 of the Workers Compensation Act 1926 (‘the 1926 Act’), the operation of which had been saved by the transitional provisions in Schedule 6 Part 4 clause 6 of the 1987 Act. These redemptions operated to end the liability of the Respondent, and the Church, in respect of “injury/ies referred to in the application for determination”, conditional upon the payment of sums of $2,500.00 (by the Respondent) and $500.00 (by the Church). The operation of section 15 was limited to injuries received before the commencement of the 1987 Act, at 4pm on 30 June 1987. In so far as injuries after the commencement of the 1987 Act were concerned, the consent award provided for payment by the Respondent of weekly compensation at a rate of $150.00, medical expenses pursuant to section 60, lump sums pursuant to section 66 for 20% permanent impairment of the back, 15% loss of use of the left leg, and 10% loss of use of the right leg, interest, and $32,000.00 in respect of pain and suffering pursuant to section 67.
The application for determination (and any other relevant pleadings) from those Court proceedings are not before me, so the injuries the subject of the redemptions are not identified.
Also annexed to the Application is a copy of an award of Commissioner Hogg, entered on 18 November 1997, in matter number 18732 of 1996 in the Court. The Appellant and the Respondent were the parties to those proceedings. This award was not expressed to be a consent award. It provided for variation of the earlier consent weekly payment, at various rates from 19 June 1996, the ongoing component of the award to be at a rate of $261.30. The Appellant, in her statement, says she has continued to receive weekly compensation “at the maximum statutory rate for a worker with no dependants” since 18 November 1997. The pleadings in those proceedings are not before me, nor is the judgment of Commissioner Hogg.
The Application was registered on 8 March 2006, and claims additional lump sums pursuant to sections 66 and 67 of the 1987 Act, in respect of the back and both legs, together with the right arm and sexual organs (which had not been the subject of lump sum compensation in the earlier consent award). An additional lump sum is also sought for pain and suffering pursuant to section 67. There is also a claim for the cost of domestic care.
The Respondent, in its Reply, disputed the Appellant had any further entitlement pursuant to sections 66 and 67, and also disputed the Appellant had a work related 15% whole person impairment, which is required under section 60AA(1)(c) if domestic assistance is to be compensable on other than a temporary basis.
The matter was listed for a teleconference on 17 May 2006, when the arbitrator made the orders referred to at [3] above, the subject of this appeal.
THE DECISION UNDER REVIEW
The arbitrator’s orders were made at a teleconference, which was not sound recorded. Accordingly there is no transcript. There is not a Certificate of Determination. The “Arbitrator Notes on Teleconference Outcome”, in the Commission file, record the following:
“1. Referred to two AMS’s (sic). The Applicant has significant orthopaedic injuries as
well as sexual dysfunction
2. Please see amendments to dates as identified on Referral to AMS
3. It is important that the AMS who assesses sexual dysfunction has the
orthopaedic MAC so that there is appropriate notice of the orthopaedic injuries
and sequeli (sic)
4. Also note both AMS’s are to assess table of disabilities and WPI as the
Applicant is claiming for domestic assistance.
5. Finally I have divided the AMS requests into three parts as this matter has
elements of pre 2 July 1987 (sic), consent orders of 1995 regarding permanent
impairment and now a claim for deterioration of injuries and a claim for sexual
dysfunction.
6. The Applicant has withdrawn her claim for the right elbow as the evidence is
clear that this occurred on 25.6.87 and therefore her rights have been
extinguished.”
The “Request for Assessment of Permanent Impairment by Approved Medical Specialist” dated 17 May 2006 (‘AMS request’) records the questions the AMSs were asked to answer. I shall not set the document out in full. To paraphrase those parts germane to this appeal, the AMSs are asked to assess the degree of permanent impairment of the Appellant as a result of certain injuries. The parts about which assessment is sought are the Back (Lumbar spine), left leg at or above the knee (left lower extremity), right leg at or above the knee (right lower extremity), and sexual dysfunction. In respect of each of these, the AMSs are asked for an assessment resulting from specified injuries “pre-1 July 1987”, and resulting from specified injuries “post 30 June 1987”.
Later in the AMS request, under the heading “List other determinations made by Arbitrator prior to referral to Approved Medical Specialist, the following appears:
“17.5.06:
1. Assessment to separate any permanent impairment attributed to pre 1 July 1987 injuries
2. AMS to consider extraneous issues under S323 in relation to sexual dysfunction including the husband’s illness leading up to his death, if applicable
3. Referred to separate AMS for sexual dysfunction who is to have the report of other AMS when making assessment
4. By consent claim for right arm at or above the elbow is withdrawn”
Then, in the AMS request under the heading “Deterioration of existing impairment” there appears:
“1.pre 1 July 1987
2.Consent Orders dated 1 June 1995:
a.20% permanent impairment of the Applicant’s back
b.15% loss of use of the Applicant’s left leg
c.10% loss of use of the Applicant’s right leg”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act, 1998 (‘the 1998 Act) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Neither party seeks leave to adduce any fresh evidence. Both parties have filed submissions in writing in support of their respective positions. The Appellant, at paragraph [5] of her submissions, indicates she has no objection to the appeal being decided solely on the basis of the written material. The Respondent, in its Notice of Opposition, submits the appeal should not be decided solely on the basis of the written material, although attaches no submissions in support of that contention. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Bound up with this is a submission made by the Respondent, that there is no jurisdiction to entertain an appeal pursuant to section 352 of the 1998 Act. It will be convenient to deal with this jurisdictional argument, in the course of deciding whether the requirements for leave pursuant to section 352 are met.
Whilst I will deal with the merits of the Appellant’s appeal more fully subsequently, in essence the Appellant asserts there is an estoppel in operation between the parties, flowing from the consent award entered on 1 June 1995. Consequently, it is asserted the questions asked by the arbitrator of the AMSs, with a view to breaking up the Appellant’s impairments and losses, between those resulting from injury before and after the commencement of the1987 Act, are inappropriate. It is put that the only decision for the AMS is whether the degree of permanent impairment or loss of the back and legs has significantly deteriorated since 1 June 1995, and if so, the degree of the deterioration requires assessment.
The Respondent, in its Notice of Opposition, submits there is no “decision” which can be appealed pursuant to section 352. The basis of this submission is an assertion that, after “lengthy discussion and negotiation, the referral to both AMS assessors, the dates of injury and the questions asked of the doctors were drafted by consent of both the applicant and the respondent”. It is further asserted the Appellant was given the opportunity, during the teleconference, to have the matter listed for arbitration so that the questions to be put to the AMSs could be the subject of formal hearing and submissions by the parties. It is said “The applicant’s representative declined this option by agreeing, by consent to the matters noted above.”
Section 352(1) provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
Section 352(8) provides:
“In this section decision includes an award, interim award, order, determination, ruling and direction.”
The Commission, and before it the Court, has made a multitude of orders and awards on a daily basis, by consent. They do not cease to be awards or orders, simply because they are by consent. The award in this matter, made on 1 June 1995, was a consent award, but still an award of the Court. A passage of the judgment of Neilson J, in Anderson v Charles Sturt University (2002) 25 NSWCCR 407, is relevant to both this jurisdictional point, and other issues raised in this appeal:
“Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel.” (at [30])
Thus, if one accepts the assertions of the Respondent regarding the consent nature of the orders made on the teleconference, they are still orders by the Commission constituted by an arbitrator, which would fall within the definition of a “decision” for the purposes of section 352.
Be this as it may, clearly it would be difficult in the extreme for an Appellant to succeed on appeal, if the orders being appealed were orders the appropriateness of which the Appellant had already agreed to, when they were made by consent. Thus the question of whether the orders were made by consent potentially remains highly relevant. There is no indication in the documentation filed by the Appellant on this appeal, that the orders the subject of the appeal were consent orders. The Respondent’s Notice of Opposition, containing the assertion the orders were made by consent, was filed on 28 June 2006. There has been no further material put on by the Appellant to challenge that assertion. However it remains an assertion, which is not the subject of evidence. There is no transcript to demonstrate what took place during the teleconference. In saying this, I do not seek to suggest I necessarily doubt (or accept) the assertions made by the Respondent in this regard. However I must approach this appeal on the basis the submissions on the point are not themselves evidence, and there is no evidence of what took place at the teleconference. I have decided against the course of issuing a direction requiring the parties to put on material going to the question of what took place at the teleconference, for two reasons.
Firstly, the appeal in this matter has been expedited. The solicitors acting for the Appellant wrote to the Commission on 11 July 2006 asking the matter be treated as urgent. The reason given for this was that the Appellant, who is sixty years of age, has a “need for domestic assistance (which) has become quite urgent and that she has been having difficulty coping”. A claim for the cost of domestic assistance is part of the current proceedings, and there is a need to establish at least 15% whole person impairment, in compliance with section 60AA, for this claim to succeed on other than a temporary basis. The President of the Commission informed the Appellant’s solicitors by letter dated 19 July 2006 that he had “decided to expedite this matter”. Given this status, it is desirable to deal with the matter promptly.
Secondly, for reasons which will appear later in this decision, I have formed the view that, if the matter is approached on the basis most advantageous to the Appellant, being that the orders were not made by consent, the appeal should fail in any event. Accordingly it is preferable to decide the appeal at this stage, rather than prolong it by seeking further material from the parties, regarding the basis on which the orders were made.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The quantum of compensation claimed, pursuant to sections 66 and 67 alone, considerably exceeds the sum of $5,000.00 referred to in section 352(2)(a). As was stated in Grimson v Integral Energy [2003] NSWWCCPD 29, “it is possible to appeal against an interlocutory decision, involving no monetary ‘award’.” The questions asked of the AMSs, and the issue of whether an estoppel applies and if so, in what way, clearly has the potential to put the amount of compensation claimed by the Appellant in issue (see Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 at [26] to [28]). No amount of compensation was awarded in the decision appealed against, therefore section 352(2)(b) has no application: Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 7. I find the matter meets the threshold tests in section 352, and that leave to appeal should be granted in the circumstances.
EVIDENCE AND SUBMISSIONS
The essence of the Appellant’s argument is to be found at paragraphs 3(h) to 3(k) of the grounds of appeal. It is said there has been an award of the Court on 1 June 1995, between the same parties. The Appellant refers to Bruce v Grocon (1995) 11 NSWCCR 247, and says “there is an estoppel in operation between the parties in relation to the assessment of the impairment that the applicant is now suffering in relation to the assessment of the permanent impairment affecting her back and both legs”. Consequently, it is asserted “the only decision for the AMS in relation to the applicant’s back and both legs at or above the knee is whether the degree of the applicant’s permanent impairment has significantly deteriorated since 1 June 1995 and to assess that deterioration pursuant to the Table of Disabilities provided by Section 66 of the Workers Compensation Act 1987”.
The Respondent seeks to distinguish Bruce v Grocon on the basis the prior award in the current case was by consent, and in addition the current case raises matters not discussed in Bruce v Grocon, being the effect of injuries pre and post 30 June 1987, the operation of the 1926 Act, and the transitional provisions in Schedule 6 Part 6 of the 1987 Act.
The Respondent also sets out the transitional provisions contained in Schedule 6 Part 6 clauses 4 to 6 of the 1987 Act. I will not quote those provisions here. Suffice it to say, those provisions render highly relevant the questions asked of the AMSs by the arbitrator, with a view to breaking up that part of the Appellant’s losses and impairments which results from injury before the commencement of the 1987 Act, from injury after such commencement.
DISCUSSION AND FINDINGS
Bruce v Grocon contains an extremely useful summary of authorities relating to issue estoppel, cause of action estoppel (res judicata), and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 type estoppel, and the application of those concepts in workers compensation litigation. Anshun type estoppel is not suggested as having any application in the circumstances of the current case. The Respondent’s point is a valid one, that care must be taken in applying the other varieties of estoppel discussed in Bruce v Grocon in the context of a consent award.
Making the assumption the orders of the arbitrator were not made by consent, the appeal still must fail, for two reasons.
The first thing that should be observed is that the only documents before me (and before the arbitrator) relating to the earlier awards of the Court, were copies of the awards themselves. As regards the 1995 award, it was by consent, and included two redemptions. It is impossible to ascertain, from the award itself, what liability was redeemed. The orders for redemption were framed in terms of the injuries in the application for determination in the earlier proceedings, and no part of the pleadings has thus far been relied upon by either party. In so far as the Appellant alleges an estoppel was created by the earlier lump sum awards, even if an estoppel existed, it would be impossible to be satisfied of its terms in the absence of the pleadings. For example, one could not be satisfied, on the currently available material, what injuries the earlier award related to.
The award of Commissioner Hogg, entered on 18 November 1997, appears to have been a contested award, in which the Commissioner would have been required to make various findings, for example on injury and causation, to reach the result which he did. Again, one would not know what these were, in the absence of the pleadings and reasons for judgment.
In Blair v Curran [1939] 62 CLR 464 Dixon J said:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.” (at 531-532).In Salmon Street Ltd (In Liq) v Jorgensen (1991) 56 SASR 158, a decision of the Full Court of the Supreme Court of South Australia, referred to in Bruce v Grocon, it is said:
“If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award to determine whether the subsequent claim is barred.” (per King CJ)
Clearly for an issue estoppel or res judicata to arise, it is necessary to have sufficient information in evidence to be satisfied regarding what the subject of the earlier determination was, and (in the case of an issue estoppel) what ultimate facts were found for the purpose of deciding the matter. Even if estoppels were potentially available to the Appellant in the current proceedings, the state of the evidence regarding the earlier Court proceedings would render it quite impossible to be satisfied regarding precisely what these estoppels were. This would be sufficient to dispose of the appeal.
However, there is a further answer to the argument put by the Appellant, to be found in the judgment of the NSW Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267. In that case one of the issues related to the status to be ascribed to a prior consent award for a lump sum. There had been a consent award under section 66 of the 1987 Act, for 25% loss of use of the leg resulting from one injury. There was evidence of two subsequent injuries with the same employer. As a matter of fact, the trial judge found these to have resulted in permanent aggravation of the same leg. However the trial judge also made a factual finding that the loss at the time she was assessing the matter was 25%, that being a figure for which the worker had already been compensated. Accordingly she made no additional award for lump sums in respect of that leg, although logically the loss should have increased beyond 25%, due to the effects of the two further permanent aggravations. Handley JA found that a consent award can create a res judicata estoppel (at [9]). However His Honour then applied the following passage from O’Donel v Commissioner for Road Transport (1938) 59 CLR 744:
“The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later date there has been no alteration of that state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day...this method, though logically sound, is not permitted by law...The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.” (Evatt J at 763, quoted in Dimovski at [12])
In upholding the approach taken by the trial judge, that the prior consent award did not oblige her to make an award for a figure higher than the 25% loss she had found to exist, Handley JA went on:
“She had to determine the extent of the impairment at the date of trial. The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the judge.
Her task was to assess the extent of the worker’s current impairment following the later injuries without legal constraints flowing from the earlier award.
Having made her award she was not obliged to find an explanation for the discrepancy.” (at [14] and [15])It follows that, in circumstances such as those in the current matter, it is necessary for the arbitrator to make a decision regarding the current level of compensable permanent impairments or losses of the various body parts the subject of the claim. Bearing in mind the operation of the transitional provisions referred to at [32] above, part of that factual enquiry involves a consideration of what part of such losses or impairments results from injury before, and after, the commencement of the 1987 Act. The effect of any admissions inherent in the earlier consent award of 1 June 2005 (if properly established) is a factor to be considered, in conjunction with whatever other evidence may be ultimately presented by the parties. The arbitrator is not, as the Appellant submits, required to simply take the earlier consent award as a starting point, and restrict herself to a consideration of whether there has been some deterioration, and if so, to what extent.
DECISION
For the above reasons, I dismiss the appeal, and confirm the orders made by the arbitrator on 17 May 2006.
COSTS
I make no order as to costs of the appeal.
Michael Snell
Acting Deputy President
25 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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