State of NSW (Fire & Rescue NSW) v QBE Workers Compensation (NSW) Limited - [2021] NSWPIC 40

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	State of NSW (Fire & Rescue NSW) v QBE Workers Compensation (NSW) Limited [2021] NSWPIC 40
APPLICANT:	State of NSW (Fire & Rescue NSW)
RESPONDENT:	QBE Workers Compensation (NSW) Limited
MEMBER:	Ms Kerry Haddock
DATE OF DECISION:	23 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Apportionment of liability; section 22 of the 1987 Act; just and equitable in the special circumstances of the case; section 22A of the 1987 Act; application of the Limitation Act 1969 to contribution; Held- liability apportioned pursuant to sections 22 and 22A of the 1987 Act; Limitation Act1969 does not apply to contribution.
DETERMINATIONS MADE:	1. That liability for payments of compensation made to or on behalf of the worker, Mr John Harrison, is to be apportioned equally between the applicant and the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, State of NSW (Fire & Rescue NSW) (Fire & Rescue), seeks apportionment of liability and contribution, pursuant to section 22 and section 22A of the Workers Compensation Act1987 (the 1987 Act), from the respondent, QBE Workers Compensation (NSW) Limited (QBE), for payments of compensation made to or on behalf of its former employee, Mr John Harrison (the worker).

The background to this matter is described by his Honour President Phillips in State of New South Wales v Roberts Concrete Specialists Pty Ltd (formerly Jack Harrison Home Builders Pty Ltd) [2020] NSWWCCPD 20. The President stated:
“2.     The worker, John Harrison, worked for the respondent, Roberts Concrete Specialists Pty Ltd (deregistered) (formerly known as Jack Harrison Home Builders Pty Ltd), as a labourer/carpenter. In about 1970, Mr Harrison injured his left knee when he fell from scaffolding and landed on his left leg twisting his left knee. He underwent a meniscectomy and had some time off work. The respondent’s then insurer, Mercantile Mutual (now QBE Workers Compensation (NSW) Ltd), paid Mr Harrison weekly payments of compensation for the period he was on leave due to the work injury and medical expenses associated with the surgery.
3.     In 1976, Mr Harrison commenced work for the appellant, Fire & Rescue (State of New South Wales) as a fire fighter. In the course of his work for the appellant for over twenty years, Mr Harrison sustained injuries to his left knee and lumbar spine. On 4 December 2003, Mr Harrison injured his lumbar spine while lifting a hose in the course of his employment with the appellant. In April and September 2006, Mr Harrison twisted his left knee in the course of his employment with the appellant. He did not take sick leave following injury to his left knee but his left knee did not improve and he experienced pain and swelling. Mr Harrison later underwent an arthroscopy on his left knee on 15 February 2007 and a left total knee replacement on 3 December 2007. Mr Harrison was medically discharged from the appellant in 2008. The appellant’s insurer, Employers Mutual Limited, paid Mr Harrison weekly payments of compensation and medical expenses associated with the work injury.
4.      On 25 February 2011, Mr Harrison lodged an Application to Resolve a Dispute seeking lump sum compensation against the respondent in respect of an injury to the left leg, left knee and back (Matter No 1600/11). Mr Harrison sought lump sum compensation in respect of:
(a) the left knee injury as a result of the nature and conditions of employment with the appellant aggravating a diseased left knee injury deemed to have occurred on 11 January 2007;
(b) the lumbar spine injury dated 4 December 2003;
(c) the lumbar spine injury deemed to have occurred on 28 April 2010.
5.      On 27 June 2012, Arbitrator Peacock issued a Certificate of Determination in Matter No 1600/11. Arbitrator Peacock noted that the appellant was joined to the proceedings as the second respondent. She also noted that the claim for lump sum compensation was amended to include a claim for lump sum compensation as a result of injury to the left leg at or above the knee in or about 1970 against the respondent. Arbitrator Peacock further noted that there was no liability dispute in respect of injury to the left knee and lumbar spine arising from injury in the course of employment with the appellant.
6.     In respect of the claim against the respondent, Arbitrator Peacock found that Mr Harrison had sustained an injury in 1970 while employed by the respondent. Arbitrator Peacock held:
‘When weighing the evidence before me I am satisfied on the balance of probabilities that Mr Harrison suffered in about 1970 an injury to the left knee in the course of or arising out of his employment with Roberts when he fell from scaffolding and twisted his left knee, such injury resulting in a torn meniscus and as a result of that injury he underwent a medial meniscectomy.”
7.      Arbitrator Peacock remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the degree of permanent impairment, if any, of the injuries claimed.
8. On 18 October 2012, Dr Kim Ostinga (AMS) issued a Medical Assessment Certificate (MAC) in respect of the injuries claimed. It is not relevant to set out the details of the MAC, other than to note the following regarding the assessment of the extent to which the injury in 1970 contributed to the impairment assessed. The AMS commented that the ‘need for his total knee replacement was due to be an inevitable result from the 1970 accident which resulted in an open medial meniscectomy’ and the 2006 injury (deemed to have occurred on 11 January 2007) may have precipitated the need for this procedure at an earlier date. The AMS assessed a whole person impairment of 20% in respect of the left knee. The AMS then proceeded to assess that the relevant deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998(the 1998 Act) for a pre-existing condition was 9/10^th (not 8/10^th), resulting in a 2% whole person impairment in respect of the 2006 injury to left knee.
9. On 8 February 2013, the Medical Appeal Panel (MAP) revoked the MAC dated 18 October 2012 and issued a new MAC in its place. The MAC was revoked on the basis of an erroneous application of s 323 of the 1998 Act, in respect of assessment of the left leg at or above the knee in 1970. Given this error, the MAP was able to issue a new MAC in respect of all impairment assessed.
10.    Relevantly, the MAP observed that the condition of Mr Harrison’s left knee was ‘predominantly due to the initial injury, and the meniscectomy which [Mr Harrison] underwent in having that injury treated.’ It also added that Mr Harrison’s ‘current condition is largely in keeping with the natural progression of the pathology associated with that initial injury and the meniscectomy.’
11.    The MAP noted that the injuries sustained to the left knee were ‘consistent with weakness caused by the original injury in about 1970, which has remained the predominant cause of [Mr Harrison’s] left knee problems’. It further added that Mr Harrison underwent an arthroscopy of his left knee in February 2007 and had a total knee replacement in December 2007. These procedures were ‘an inevitable consequence of the original injury to [Mr Harrison’s] knee, and the meniscectomy, in about 1970.’ The MAP considered that a deduction of ‘8/10^th’, indicating that one fifth of Mr Harrison’s impairment results from his activities as a fire-fighter, more accurately represented the relevant contributions. Accordingly, 4% whole person impairment was assessed as having resulted from the injury to the left lower extremity in January 2007.
12.    The new MAC recorded:
(a) 30% impairment, under the table of disabilities, in respect of loss of left leg or greater part thereof in relation to injury in about 1970.
(b) 4% whole person impairment, in respect of injury to the left knee deemed to have occurred on 11 January 2007 as a result of the nature and conditions of employment.
(c) 5% whole person impairment, in respect of injury to the lumbar spine dated 4 December 2003.
(d) 0% whole person impairment, in respect of injury to the lumbar spine deemed on 28 April 2010 as a result of the nature and conditions of employment aggravating a diseased lumbar spine.
13.    On 7 March 2013, a Commission Arbitrator issued a Certificate of Determination entering an award for lump sum compensation consistent with the MAC issued by the MAP. The terms of the Certificate of Determination are as follows:
‘The Commission orders:
1.That the first respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987:
(1) $6,600 in respect of 30% loss of leg or the greater part thereof resulting from injury in about 1970.
The Commission orders:
2.That the second respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987:
(1) $5,500 in respect of 4% permanent impairment resulting from injury on 11 January 2007.
(2) $6,250 in respect of 5% permanent impairment resulting from injury on 4 December 2003.
The Commission determines:
3.That the Applicant suffers 0% permanent impairment resulting from the date of injury on 28 April 2010.
4.That the first and second respondent pay the applicant’s costs as agreed or assessed.”
14    On 1 August 2016, the appellant’s legal representative sent a letter to the respondent’s insurer. In the letter, the appellant referred to the MAP decision and said that the MAP regarded that 80% of the left knee condition was ‘consequential of an initial injury in or about 1970 whilst he was in the employ of the [respondent] ... for which liability has been accepted’. On this basis, the appellant sought an 80% contribution under s 22 of the 1987 Act for past and future compensation paid arising out of the injury suffered to the left knee. It noted that it had paid Mr Harrison $340,290.19 comprising of weekly benefits and medical expenses arising out of incapacity caused by work related injuries. On the basis of the 80% contribution, the appellant sought that the respondent contribute $272,232.15.
15.     On 11 December 2018, the appellant lodged a Miscellaneous Application (Form 20). The appellant lodged the application against the respondent, seeking an order under s 22 and s 22A of the 1987 Act. The apportionment related to weekly payments in the sum of $289,135.54 and medical expenses in the sum of $51,154.65 which had been paid by the appellant.”
The Miscellaneous Application had proceeded to arbitration before Arbitrator Beilby on 12 March 2019. The respondent conceded that, based on the findings of the MAP, Mr Harrison would continue to have a disability arising from the 1970 incident affecting his left knee, but did not concede that he had an incapacity arising from the period of employment with it.
On 16 May 2019, Arbitrator Beilby issued a Certificate of Determination (COD) in which she declined the application for apportionment.
The applicant lodged an appeal against the arbitrator’s decision.
On 20 April 2020, the President ordered that the COD dated 16 May 2019 was to be revoked; and the matter was remitted for re-determination by another arbitrator.
On remitter, the matter was allocated to Arbitrator Young and was listed for conciliation/arbitration hearing on 2 July 2020.
On 17 June 2020, the applicant sought an adjournment of the conciliation/arbitration hearing.
On 30 June 2020, Arbitrator Young issued a COD refusing the applicant’s application for an adjournment.
On 1 July 2020, the applicant discontinued the proceedings before Arbitrator Young.

The Current Proceedings

On 14 October 2020, the applicant lodged this Miscellaneous Application (the Application), seeking a determination as to the apportionment of liability pursuant to sections 22 and 22A of the 1987 Act in respect of injuries sustained by the worker to the left knee in or around 1970; and 11 January 2007 (deemed). The Application seeks a contribution of 80% from the respondent of past and future compensation paid to the worker arising out of the injury suffered to his left knee. At the conciliation/arbitration hearing, the applicant submitted that the respondent’s contribution to past and future compensation should be 50%.
The respondent lodged its Reply under cover of an Application to Admit Late Documents on 8 December 2020.
The Reply sought to raise the following matters for dispute:
(a)    That the Commission lacks jurisdiction.
(b)    That as there is no dispute with the worker regarding his entitlement to weekly payments or medical expenses, in the absence of any such dispute with the worker, the jurisdiction of the Commission is not enlivened.
(c)    That the respondent alleges that the claim does not arise under Part 4 of the 1998 Act.
(d)    That there is prejudice to the respondent given the amount of time that has elapsed since the injury.
(e)    That the applicant voluntarily paid the worker weekly compensation and medical expenses from January 2007 without any reference to the respondent and without its agreement.
(f)    That in August 2016, the applicant claimed compensation from the respondent but provided limited detail.
(g)    That the respondent’s ability to defend itself in respect of the claim now made has been prejudiced as relevant documents have been lost or destroyed.
(h)    That whilst certain concessions are allowed to workers when making delayed claims, these arise in circumstances where the worker may be ignorant of their obligations under the 1987 Act and Legislation or where there are other reasonable excuses, no such concessions are available in respect of employers.
(i)    That it would not be “just and equitable” to allow the applicant to pursue this claim.
(j)    That to the extent necessary, the respondent also raises a defence pursuant to the provisions of the Limitation Act (if relevant).
(k)    That the respondent alleges that both insurers concerned are licensed insurers and under section 22A(8) premium adjustment is appropriate
At the conciliation/arbitration hearing, the respondent withdrew its reliance on section 22A(8) of the 1987 Act.
The respondent stated that the proposition that the Commission lacks jurisdiction is not pressed “in that blunt form”. This was considered by the President in the appeal from the previous Application. However, there may be questions of “jurisdictional fact” that are relevant in considering sections 22 and 22A.

ISSUES FOR DETERMINATION

The respondent stated that the following issues remain in dispute:
“Whether under the discretionary steps that apply to sections 22 and 22A, the Commission would (1) embark upon any consideration of apportionment; (2) embark upon any consideration of contribution; (3) if the Commission did embark upon consideration of apportionment, the relevant matters to be taken into account, whether the claims are statute barred by operation of the Limitation Act1969; (4) alternatively, whether the same matters that would be relevant to consideration of the Limitation Act may be taken into account in the question of discretion relating to the assessment of apportionment or the consideration of contribution.”
The applicant raised in its submissions that the respondent was estopped from relying on the Limitation Act because it had failed to file a Notice of Contention in the proceedings before the President.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 28 January 2021. Mr Baran of counsel, instructed by Mr Lamproglou and Ms Shivaji, appeared for the applicant; and Mr Stockley of counsel, instructed by Mr Lee, appeared for the respondent. Ms Langton of Fire & Rescue also attended.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    The Application and attached documents;
(b)    Application to Admit Late Documents dated 26 November 2020, filed by the applicant and admitted by consent;
(c)    Application to Admit Late Documents dated 8 December 2020 (Reply) filed by the respondent and admitted by consent, and
(d)    Application to Admit Late Documents dated 6 January 2021, filed by the respondent and admitted by consent.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the worker, John Harrison

Mr Harrison has provided a statement to each party.
On 29 June 2020, the worker made a statement at the applicant’s request.
Mr Harrison stated that in or about 1970, while he was working for his father’s business, Jack Harrison Home Builders (Jack Harrison), he fell from scaffolding and injured his left knee. To the best of his knowledge, the scaffolding, which was about 2.5 to 3 metres high, collapsed beneath him. He landed awkwardly and twisted his knee.
After this incident, the worker stopped work and sought treatment. He had a meniscectomy performed by Dr Gordon Kerridge and was in hospital “for a couple of weeks”. He recalls being paid compensation by Mercantile Mutual, the insurer of his father’s business.
Mr Harrison’s recovery took approximately six to nine months. After that, he had limited problems with work and could go back to squatting, bending and kneeling without much discomfort.
In 1976 the worker joined Fire & Rescue as a firefighter. He completed three months of training and was stationed at Castlereagh Street, returning to Newcastle in June 1978.
When the worker joined Fire & Rescue he underwent a very thorough physical fitness exam. He was asked to perform squat-based exercises and other movements that involved his knees. He passed the test and no issues were raised about his left knee. He had no significant issues with his knee in the initial years of his service.
In 1982, Mr Harrison fell while performing a drill on a boat. He suffered a deep cut to his knee and required five or six stitches. He was off work for a short while.
In the mid-80s the worker began to experience issues with his left knee. It was “swelling up all the time and would become sore”. The pain and swelling decreased after a couple of days. The worker took medication. He experienced these flare ups often.
In 1988, the worker had to attend another fitness examination to become a Station Officer. He was able to perform the squat-based exercises and other movements, but with a lot of discomfort. He passed the exam, but on the way home his knee started to swell again.
Mr Harrison continued to work but sometimes struggled to complete his duties. At those times, he would take time off and seek advice from his general practitioner, Dr Mohamed. He returned to his usual duties when the swelling subsided. These flare ups occurred regularly until 2006.
On 4 December 2003, the worker injured his lower back while lifting a 70-millimetre hose full of water. He does not recall having any specific treatment. He developed lower back pain, from which he continues to suffer.
The worker twisted his knee twice in 2006. The first time was in April 2006, but he does not recall the incident. In September 2006 he twisted his knee and slipped down a hill, but continued with his shift. After the incident, his knee began to swell again. He assumed the pain and swelling would decrease after a couple of days as before, but this did not happen. He realised his knee was not going to get any better. He became physically incapacitated and was unable to play golf or enjoy any other of his social activities.

The worker took time off work and consulted Dr Mohamed, who referred him to specialists. He also had physiotherapy and hydrotherapy. In February 2007, he had a left knee arthroscopy, without much improvement. He had a total knee replacement in December 2007.
The worker was able to return to work on light duties, but “realistically” there are no light duties for fire fighters. He spent most of his time sitting around. He could not return to full-time duties as he had lost strength in his knee. He could no longer climb a ladder or attend rescues.
In or about 2008, the Superintendent asked Mr Harrison if he wished to stay with Fire & Rescue. He did not believe his career could progress and requested that he be medically discharged. He was medically discharged in 2008.
Mr Harrison was 56 when he was medically discharged. He put on weight and began to use a cane. He continued with hydrotherapy. He did not return to work, although EML tried to find alternate employment. He was paid compensation until the age of 66 and received a superannuation pension.
Until he turned 66, the worker continued to consult Dr Mohamed to obtain medical certificates. Each time, he advised Dr Mohamed that his knee condition was the reason he was unable to work.
The worker has had ongoing back pain since the incident on 4 December 2003. He has learnt to deal with it. He experiences flare ups and the pain is getting worse with age. He has not received any specific treatment.
Mr Harrison concludes that his knee injuries have always been worse, in the past, than his back injury. The back injury has not contributed as much to his physical restrictions and inability to work as his knee injuries, “again in the past”.
On 16 December 2020, the worker made a further statement, at the respondent’s request. He had reviewed his statements dated 29 June 2020 and 2 October 2011, which he made in Matter Number 1600 of 2011. The latter is not in evidence.
The worker agreed he had stated that to the best of his recollection he had fallen 2.5 to 3 metres, but Arbitrator Peacock had referred to his statement of 2 October 2011, in which he said the scaffolding was “a couple of feet” off the ground. He explained the inconsistency on the basis that he was being asked to recall something that occurred more than 50 years ago. He believes it would have been more than a couple of feet, but how much more he cannot recall.
After a period off work and a period on light duties, the worker returned to his normal work until he joined Fire & Rescue in 1976. He joined for financial security and a steady income. He had to pass a full and comprehensive medical and would describe the condition of his knee as good. He was engaging in all his normal social pursuits. In the period between returning to his normal duties with Jack Harrison and when he left to join Fire & Rescue, to the best of his recollection, he did not seek any treatment for his knee.
The worker described the nature and conditions of his employment with Fire & Rescue as physical. It was a lot more physical than his work with Jack Harrison. It imposed a lot more strain on his knee, as it involved much ladder work, walking on uneven surfaces and working in confined spaces. It was also heavy work, as he was required to drag hoses full of water. This imposed a lot of stress on his knee. The job also involved rescuing and carrying people, which imposed significant stress on his knee.
The worker states that his work with Fire & Rescue was at least 50% harder than his work with Jack Harrison. It “definitely imposed more strain” on his knee. He cannot recall if he had any further problems with his knee in his early years with Fire & Rescue, but he agrees with his statement dated 2 October 2011, in which he said he “had a large number of aggravation type injuries to my knee and also worked in very difficult work over the years”.
Mr Harrison states that he knows he had a couple of weeks off because of his knee in the 80’s but cannot recall the circumstances. He did not report all the aggravations as they were too numerous and did not stop him working. There is no doubt in his mind that the nature of his work over 30 years significantly aggravated his knee condition, although he kept working.
In about 1991, the worker was stationed at Charlestown. There was a lot more bushfire work, which was particularly stressful on his knee. He believes that it was while he was stationed at Charlestown that his knee “really started to play up and cause me problems”. There was a gradual deterioration in his knee thereafter; and as best he can recollect, he was seeing his GP in this period.
The worker recorded numerous incidents in the Occurrence Book. As far as his back injury is concerned, it occurred in 2003. Thereafter, he suffered from constant back pain, although he was able to continue working.
The worker then referred to the two specific injuries to his knee in 2006. He cannot recall the details of the injury in April 2006 but he continued working until the more significant injury in September 2006, when he slipped down a hill. His knee was never the same and his symptoms returned at a higher level than they had ever been. He was having trouble sleeping for the first time and he sought specialist treatment for the first time since his initial injury in 1970. To the best of his recollection, apart from the period in the 80’s, this was the first time since 1970 that he became incapacitated because of his knee.
The September 2006 incident caused the worker to seek treatment and he never returned to his normal duties. He then came to a total knee replacement. Until this incident, he had been performing his normal duties and had no reason to believe he could not have continued to normal retirement age. He had occasional aches and swelling before September 2006, but it did not stop him performing his normal duties and he did not need to seek specialist treatment. Were it not for this injury, he believes he would have continued in his normal duties to retirement age.
The worker states that his back became increasingly troublesome after the 2003 injury and also affected his work duties. The statement says: “Were it not for my knee injury,” but the sentence goes no further.
When the worker left Fire & Rescue in 2007 his back was troubling but not incapacitating him. By around 2010, he was having significant back problems. By this time, he believes he would have been incapacitated as a result of his back. He has no doubt that if he had been required to undergo a physical with Fire & Rescue in 2010, he would have failed as a result of his back injury alone.
The worker regards the real cause of his knee problems as the very heavy nature of his work with Fire & Rescue. It was significantly more heavy and taxing on his knee.
The worker regards his incapacity as all stemming from the September 2006 injury, as he was performing his normal duties at that time and having no treatment. His back injury would in his view have caused him to cease work in about 2010.
Referring to his prior statement, the worker states that “things came into my head after I made the statement and everything happened such a long time ago”. He had “really turned [his] mind to the matter”; and believes this statement represents a more accurate recollection.

Medical Evidence

Medical Appeal Panel

It is appropriate to start with the MAC issued by the MAP on 8 February 2013, as it appears to have been the catalyst for this Application.
The MAP determined that the worker injured his left knee in about 1970 when he fell from a scaffold while working for Jack Harrison. He underwent an open meniscectomy.
The worker joined Fire & Rescue in 1976. On 4 December 2003, he injured his lumbar spine while lifting a hose. He suffered a further injury to his lumbar spine on 28 April 2010. In the course of his employment, he aggravated the condition of his left knee.
Arbitrator Peacock had referred the medical disputes to an AMS to assess:
·        loss of the left leg, or greater part thereof, resulting from the injury in about 1970;
·        WPI resulting from injury to the left lower extremity (left knee), deemed to have been received on 11 January 2007 as a result of the nature and conditions of employment as a fire fighter aggravating a diseased left knee;
·        WPI resulting from injury to the lumbar spine on 4 December 2003, and
·        WPI resulting from injury to the lumbar spine deemed to have been received as a result of the nature and conditions of employment aggravating a diseased lumbar spine.
The AMS made various assessments and deductions, which were the subject of an appeal by the worker. As regards the worker’s lumbar spine, the AMS assessed 5% WPI as a result of the injury on 4 December 2003, but 0% as a result of the injury deemed to have occurred on 28 April 2010. The worker did not appeal against those assessments.
The MAP regarded the condition of the worker’s left knee as predominantly due to the initial injury and the meniscectomy he had undergone to treat that injury. His condition at that stage was largely in keeping with the natural progression of the pathology associated with the initial injury and the meniscectomy.
The MAP accepted that the worker’s work as a fire-fighter, in particular the events recorded by Dr (Mr) Bracken, would have aggravated and accelerated his knee pathology. It opined that the injuries sustained to the worker’s left knee (with no mention of problems with his right knee) were consistent with weakness caused by the original injury in about 1970, which remained the predominant cause of his left knee problems.
The worker underwent arthroscopy of his left knee on 15 February 2007; and left total knee replacement on 3 December 2007. The MAP opined that these procedures were an inevitable consequence of the original injury and meniscectomy. The series of aggravations would have accelerated the need for that surgery. Those incidents cannot be regarded as accounting for half of his left knee pathology.
The MAP concluded that, of the 20% WPI assessed in October 2012, four-fifths (80%) resulted from the injury in about 1970.

Dr Brendan Jones – Orthopaedic Surgeon

The worker was referred to Dr Jones in January 2007.
Dr Jones reported on 17 January 2007 that the worker had injured his left knee in the early 70’s and underwent medial meniscectomy by Dr Kerridge.
The worker had another injury in the mid-80’s, “aggravating the situation” and most recently had a left knee strain in September 2006. Since then, his knee had not really settled down. Prior to that, if he hurt his knee it “would come good”, but this time it had remained painful and unstable.
Dr Jones opined that the worker may ultimately need a knee arthroplasty, but the doctor wanted to avoid this. He therefore suggested an arthroscopy.
On 21 February 2007, Dr Jones reported that the worker was recovering quite well from the procedure (which was performed on 15 February 2007). He expected the worker to have quite significant short to midterm benefit. If he had a recurrence of symptoms and significant pain on the medial side of his knee, he was suitable for a tibial osteotomy.
The worker underwent left total knee replacement on 3 December 2007.
Dr Jones reported on 30 January 2008 that the worker would be able to resume light indoors work within the next few weeks. He was unfit for full duties, and this would be reviewed at his next appointment.
On 12 November 2008, Dr Jones reported to Fire & Rescue that the worker was permanently unfit for full duties as a fire fighter.
Dr Jones reiterated on 13 October 2009 that the worker was permanently unfit for the occupation of fire fighter. Attempts had been made to look at alternative treatment, but
Dr Jones believed his knee was in a condition that would not allow this.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel was qualified by Allianz Australia Insurance Limited (Allianz), Fire & Rescue’s then insurer, and reported on 28 September 2007.
Dr Bodel recorded a history that the worker underwent open medial meniscectomy in 1970, from which he recovered very well. He had had recurring episodes of injury to his left knee dating back to the 80’s. There were flare ups every 6 to 12 months, which occurred with a minor twisting injury.
The worker had sustained an injury on 5 September 2006 when his left leg gave way while he was walking on uneven ground. His knee was “just not right”. He sought treatment and was referred to Dr Jones, who performed arthroscopy.
Dr Bodel reported having seen the arthroscopy photographs, which showed clear evidence of medial compartment osteoarthritis and a degenerate rim of a previously resected medial meniscus.
Dr Bodel opined that the injury on 5 September 2006 and the nature and conditions of the worker’s work of over 30 years with Fire & Rescue were at most minor contributing factors to his ongoing complaints. His main pathology arose as a result of having an open medial meniscectomy “all those years ago”. A total knee replacement was inevitable following that surgery. The injuries at work, particularly on 5 September 2006, had brought forward the timing of the total knee replacement.
Dr Bodel opined that the injury on 5 September 2006 was a contributing factor to the worker’s complaints, but it was a minor contribution. It had caused an aggravation of long-standing pre-existing pathology. The nature and conditions of the worker’s employment was also a minor contributing factor. He estimated that about one-third of the worker’s total left knee pathology was due to the nature and conditions of his work for Fire & Rescue and the injury on 5 September 2006; and two-thirds was due to pre-existing pathology.

Associate Professor Leon Kleinman – Orthopaedic Surgeon

Associate Professor Kleinman was qualified by Allianz and reported on 29 January 2009.
A/P Kleinman recorded a history of the injury and surgery in 1970, after which the worker said he had no further problems until the mid-80’s when he injured his left knee at work. He had pain and in the early 1990’s his knee became increasingly uncomfortable and would occasionally “click out”, but he lost no time from work.
The worker then injured his left knee on 5 September 2006. It did not settle down and the pain persisted. He underwent total knee replacement on 3 December 2007. He had since noticed increasing backache.
A/P Kleinman recorded complaints of left knee pain and swelling, which restricted movement. The worker also had low back pain, aggravated by prolonged sitting.
A/P Kleinman opined that the worker’s most significant work-related injury was the one he sustained while working as a carpenter. An open medial meniscectomy will almost inevitably lead to medial compartment osteoarthritis. The nature and conditions of the worker’s work as a fireman aggravated his left knee condition and “maybe” accelerated the degenerative process in his left knee.
A/P Kleinman recommended that the worker return to his treating surgeon to discuss whether re-surfacing his patella would relieve some of his left knee symptoms.
The worker was not fit for his pre-injury duties or any employment involving prolonged standing, lifting or carrying weights. He could perform sedentary work provided he could change positions as required. A/P Kleinman formed the impression from the worker that because of his backache, he would have difficulty performing sedentary work as he would have to keep changing position. This was one reason he could not find suitable duties with Fire & Rescue. The worker claimed he was unable to return to suitable duties because of his back condition, not his left knee condition.

Dr John Sage – Orthopaedic Surgeon

Dr Sage reported to Allianz on 2 March 2010.
Dr Sage recorded a history that from the mid-80’s the worker had had about a dozen episodes of his knee clicking while fighting bush fires. This included the episode on 5 September 2006. He did not require much time off until 2006, but was “being looked after”. He had marked pain after the 2006 injury, which became quite severe and was not settling.
The worker had had “dramatic improvement” with regard to pain after his knee replacement, but still had significant discomfort. He had been medically retired.
Dr Sage also recorded that the worker strained his lower back in about 2003, but this was probably not significant until after the left knee surgery. It was likely to be a transfer strain that was causing the aggravation. More forces were put on the opposite leg; and the spine tilts to the side, straining underlying degenerative changes.
Dr Sage agreed with A/P Kleinman that the most significant factor affecting the worker’s left knee was the medial meniscectomy. This led to increasing degenerative changes in the medial compartment, which made the knee easier to strain. By 2006, the medial compartment was down to one millimetre of cartilage space; and “you would expect a severe amount of pain at that stage”. He would not normally expect Mr Harrison’s work with Fire & Rescue would have “exaggerated” the degenerative changes in the medial compartment.
Dr Sage opined that the important injury was the one in 1970, which led to medial meniscectomy. This led to increasing severe degenerative changes, so that, by 2006, even without the injury, he would have expected significant symptoms. However, this brought on the need for joint replacement, but probably only by two years.
The worker had some back symptoms in 2003, which Dr Sage did not think was significant. It was likely to be related to straining from the nature of his work, but Dr Sage opined there had been significant transfer effect.
On 22 June 2010, Dr Sage responded to Mr Bracken’s apportionment of impairment of the worker’s left knee. He opined that a meniscectomy, especially a total meniscectomy, is a powerful cause of the development of degenerative changes in the knee. In addition, the lack of medial meniscus protection had been present for almost 30+ years. This fitted with the joint space being down to one millimetre. The worker’s right knee did not show significant signs of degenerative change, which indicated that the nature of his work had not been significant for the development of significant degenerative changes.
Dr Sage felt that the injuries the worker sustained at work were a reflection of the underlying degenerative changes. As a rule, acute injuries are not a cause of degenerative changes in the knee, unless there is a significant alteration of the biomechanics of the joint, which had not occurred with the injuries. Dr Sage believed that if the worker had been in the other (he perhaps meant “another”) occupation, which could be quite sedentary, he would be in the same situation. However, he had deducted one-tenth, to cover some work aggravation.

Mr Barry Bracken – Orthopaedic Surgeon

Mr Bracken reported to Allianz on 25 May 2010. He had been qualified by the worker’s solicitors and was responding to queries from Allianz.
Relevantly, Mr Bracken opined that 50% of the worker’s condition related to the injury in 1970; and 50% to the various incidents and conditions of his work for Fire & Rescue. He was of this opinion because of the large number of incidents where the worker’s knee was aggravated and accelerated by the conditions of his work with Fire & Rescue; and that over a considerable period. He provided his reasons for disagreeing with Drs Sage and Bodel.

Dr H.E. Mohamed – General Practitioner

Dr Mohamed reported to EML on 30 August 2013.
Dr Mohamed was not able to identify whether the worker’s incapacity for work was related to an incident in 1970 or 2007. The worker was advised by Dr Y Ghabrial that he was unfit for work as a fire fighter due to his ongoing knee problems.
In March 2013, the worker was diagnosed with cardiomyopathy and was being treated by cardiologists.
Subjectively, the worker complained of chronic knee pain, which limited his mobility and function; and felt he could not return to his duties.

Dr Robin Mitchell – Occupational Physician

Dr Mitchell reported to Treasury Managed Fund on 13 May 2016. He had been requested to assess the worker’s capacity to undertake suitable duties.
Dr Mitchell recorded a history that the worker developed pain in his left knee at work on 5 September 2006. Investigations showed degenerative changes. The worker underwent arthroscopy on 15 February 2007 and total knee replacement on 3 December 2007. He had subsequently remained off work.
Dr Mitchell noted that the worker had been compensated for 30% loss of efficient use of his left leg from a previous injury.
The worker complained of pain and swelling in his left knee, particularly if remaining on his feet for long periods; and ongoing low back pain, related to any arduous or sustained physical activity. He also had cardiomyopathy, which, even with treatment, resulted in shortness of breath and fluid accumulation in each leg.
Dr Mitchell opined that the worker had ongoing pain and swelling in his left knee, following what appeared to have been a technically successful total knee replacement. He also had significant symptoms of shortness of breath and ankle oedema due to cardiomyopathy.
The worker had capacity for suitable work that would avoid any aggravation of his symptoms. He should be able to manage such work full-time, provided that he was able to sit on a regular basis; static standing was avoided; prolonged walking, particularly over uneven or sloping ground was avoided; and frequent step climbing, kneeling and crouching should be avoided.
Dr Mitchell spoke to Dr Mohamed, who provided him with Dr Ghabrial’s reports. Dr Mitchell recorded that Dr Ghabrial had recommended that “Mr Disney” (assumed to mean the worker) “should lead a sedentary life avoiding aggravating activities”. Dr Mitchell noted that this was consistent with the precautions he had recommended.
Dr Mohamed agreed to support a return to work if it had no potential to aggravate the worker’s symptoms. Therefore, the worker should be able to manage employment such as customer service, concierge, call centre operator, or other administrative areas where he could use his firefighting knowledge.

Dr David Millons – Orthopaedic Specialist

Dr Millons was qualified by the respondent and reported on 22 December 2020. He did not examine the worker but conducted a file review.
Dr Millons referred to the matter for determination as the cause of the worker’s incapacity for work from September 2006, when he was placed on light duties after an incident with Fire & Rescue in September 2006, to the time compensation payments ceased in 2018.
Dr Millons had a copy of the worker’s statement dated 16 December 2020, but it appears that he did not have a copy of that dated 29 June 2020. He reported that there does not appear to be any dispute that the nature and conditions of the worker’s employment with Fire & Rescue would have been potentially heavy and demanding.
Dr Millons commented that, the worker having had a meniscectomy, “the stage would have been set” for the development of some degenerative changes in his knee with the passage of time. He referred to the worker’s statement about a large number of aggravating injuries to his knee and very difficult work over the years. The aggravations were “too numerous” but did not stop him from working.

There would seem little doubt, in Dr Millons’ opinion, that the nature and conditions of the worker’s work with Fire & Rescue aggravated what may have been developing degenerate changes in the knee, following on the meniscectomy. The worker came to total knee replacement on 3 December 2007 and never returned to work.
The worker also had issues with his lower back. Dr Millons records that he appears to have injured it on 4 December 2003, after which it became increasingly troublesome. The worker has stated that by 2010 he would have been incapacitated as a result of his back.
Dr Millons referred to the MAP, but “would tend to draw issue” with its reasoning. He accepts that the stage had been set for the worker to develop degenerate changes in his knee at a rate faster than might be expected in a normal knee.
The worker went along quite well for some years. The nature and conditions of his work with Fire & Rescue would clearly have been demanding. The day to day activities at work would have given rise to intermittent knee symptoms, which seems to have been the case.
Dr Millons opined that, of the worker’s accepted WPI, three-fifths might reflect the original meniscectomy and the gradual development of degenerate change with time; and two-fifths is due to the aggravating effects of the nature and conditions of the worker’s work, and in particular the incidents he described, particularly that in September 2006, when his symptoms became much worse.
The cause of the worker’s incapacity from September 2006, in Dr Millons’ opinion, appears to relate to the worsening of symptoms at work from that time on. After that (September 2006) incident, his symptoms appear to have been much worse, he came to a knee replacement and he has not been able to work since. He was “also carrying some back issues”, which would have led to added incapacity for work.
Dr Millons opined that notwithstanding that Mr Harrison had a meniscectomy in 1970; and several aggravations of developing degenerate changes in his left knee over the years from the 1980’s, which had caused closed periods of aggravation, it seems that his left knee had deteriorated to the point where the incident in September 2006 led him to modify his activities because of the substantial aggravation of those changes. They did not settle with conservative treatment and led to a knee replacement.
The worker would be quite unfit to return to full duties as a fire fighter. He was 56 when he left the service because of ongoing left knee problems and back problems. As regards the cause of his incapacity from the time of his medical retirement, Dr Millons opined that with the condition of his knee he would clearly have been unfit to resume the full duties of a fire fighter. This appears to have been, in part, because of the aggravating effects of the nature and conditions of his work with Fire & Rescue; and particularly so following the incident in September 2006. This “appears to have turned things against him and led to his fairly proximate knee replacement”. Ongoing back issues would be another factor in regard to ongoing incapacity.

SUBMISSIONS

Counsel’s oral submissions have been recorded; and I will refer to them only briefly.
Mr Baran, counsel for the applicant, has provided written submissions dated 27 January 2021. He expanded on those submissions at the arbitration hearing.
The applicant submitted that the respondent seeks to raise an issue that would have the effect of extinguishing its claim for apportionment, relying on the Limitation Act. This issue was first raised in the initial arbitration, but the arbitrator did not have to address it, because strictly speaking it did not arise having regard to her findings, which were the subject of the appeal to the President. At no time was it abandoned.
Clause 33 of Practice Direction 6 gave the respondent the right to file a Notice of Contention in the appeal to the President. The applicant submits that the respondent is estopped from raising the issue of any limitation period, as a consequence of the operation of the doctrine of Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589).
This estoppel operates to preclude raising 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: Tomlinson v Ramsey Food Processing Pty Limited (2015) 323 ALR 1 at [22].
The applicant submits that the issue of the Limitation Act was before the arbitrator and was raised in the various dispute notices in respect of the first claim that was litigated in the Commission. Thereafter, any reliance upon the Limitation Act for the purposes of disposing of the appeal on an alternative ground was entirely abandoned. On appeal, the respondent argued that the arbitrator correctly applied the law and the decision was discretionary, such that the President should not intervene.
The applicant submits that it is unreasonable for the respondent to now reintroduce a point that, if successful, could have entirely extinguished its claim on appeal by the use of a Notice of Contention. The respondent is estopped from placing any reliance on the Limitation Act.
In the alternative, the applicant submits that there is no authority that permits the use of the Limitation Act, irrespective of the section, in claims for workers’ compensation and claims for apportionment as between workers’ compensation insurers. It is expressly excluded under Part 5 (of the 1987 Act) in the common law provisions and has only been introduced for the purposes of adjudicating upon how time runs for the purposes of an action for indemnity pursuant to section 151Z.
No other operation of the Act has been determined by the Commission or the Compensation Court. On a proper reading of both the Compensation and Management Acts the Limitation Act could not apply and only applies to causes of action heard in a Court.
The Commission operates exclusively as a result of its creation by statute and none of the provisions save and except for those referred to above, on a proper construction, invoke the Limitation Act.
For these reasons, the Commission should determine that the Apportionment Application, being a Miscellaneous Application based on the relevant Compensation and Management Acts, is brought in circumstances where no time bar is applicable. Further, it is not oppressive to do so.
The applicant referred to the evidence contained in the worker’s statements dated 29 June 2020 and 16 December 2020. He said his knee was never the same after a 2006 slip down a hill whilst working for the applicant. Before that, he was performing his duties as normal. He regarded the real cause of his knee problems as the very heavy nature of his work with Fire & Rescue. He further stated that he now has a more accurate recollection of events.
The applicant referred to the medical evidence, including that of Dr Bodel; Dr Sage; A/P Kleinman; Mr Bracken; and the AMS. The AMS assessed the worker’s knee/s and described the 1970 injury as the predominant cause of his left knee problems.
The respondent has qualified Dr Millons, who referred to reviewing materials but has not reviewed substantial material that has been served in the initial Application and on appeal; and has not identified that a statement had been provided in June 2020.
Dr Millons accepted that the 1970 surgery set the stage for the development of degenerative changes at a faster rate than might be expected in a normal knee. The applicant submits that he does not exclude entirely the causative operation of incapacity arising out of the 1970 incident.
The applicant submits that no weight should be given to Dr Mitchell’s report, as he did not provide a relevant opinion and did not state absolutely and certainly that the worker was not incapacitated; and little weight should be given to Dr Millons’ report.
The applicant submits that the Commission should adopt the substantial body of opinion that the worker’s incapacity has causes from the 1970 injury; and subsequently to aggravations caused by the work with the applicant.
As regards apportionment, the applicant submits that the first stage is determining whether there is a liability to pay compensation. It submits that this is an incontrovertible fact. The second stage involves apportionment of liability, having regard to the evidence relating to the injured worker’s incapacity. This requires consideration of the issues going to causation of incapacity. If incapacity or permanent impairment results from more than one injury, then liability to pay compensation is to be apportioned.
The applicant submits that it is at the second stage that causation is determined, that is, an enquiry as to whether incapacity resulted partially from one injury and partially from another or other injuries. It also involves an enquiry as to whether the injury caused or materially contributed to the incapacity. The incapacity must be so connected with a number of injuries that as a matter of common sense and experience it is to be regarded as having resulted from all or any of them.
The applicant submits that it has demonstrated:
(a)    that there was a liability to pay compensation;
(b)    that incapacity initially resulted from the 1970 injury and subsequent surgery;
(c)    that the 1970 injury and subsequent surgery laid the foundation for the knee having become weak and was thus a causal factor in subsequent aggravations when the worker was employed by the applicant;
(d)    that the medical evidence demonstrates beyond argument that the worker’s ultimate incapacity resulted partially from the 1970 injury and partially from subsequent injuries sustained whilst he was employed by the applicant, and
(e)    that the overwhelming body of medical evidence demonstrates that the 1970 injury played a material contributing role in the worker’s ultimate incapacity, not only as a matter of medical fact but also as a matter of ordinary common sense, such that it should be regarded as having resulted in an operative manner to the incapacity that ultimately resulted in the worker suffering the severity of the injuries he subsequently suffered and becoming incapacitated for work.
The applicant submits that if the Commission accepts the above submissions, it follows that a just and equitable apportionment must be made in respect of the payments that have been made to the worker.
Having regard to the significant amount of evidence that has been placed before the Commission in the current proceedings, as well as references to other evidence in the initial arbitration and in the appeal, the applicant submits that the appropriate just and equitable apportionment as between the applicant and the respondent should be equal shares.
The applicant refers to the decision of the Commission in the matter of Jeffrey Reynolds v NSW Fire Brigade (unreported 28 June 2005) (Reynolds) which involved one employer but two insurers.
The applicant made further oral submissions, submitting that section 22A(3) of the 1987 Act provides that liability may be apportioned even if the liability has been discharged. This is the clearest indication that the Commission’s jurisdiction is enlivened, unrestricted by any time limitation periods, or at all, unless there is some issue arising out of the satisfaction of section 22. The applicant submits that does not arise.
The applicant submits that the whole purpose of this beneficial legislation is to ensure that there is always, without limitation, a bundle of ongoing rights (a) to the workers (b) to the employers and (c) to the insurers so they can satisfy various rights and obligations under the Act. Project Blue Sky [Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355] requires a purposeful construction of the Act.
The applicant submits that the incontrovertible facts are that the worker sustained injury in 1970 while employed by the respondent, in circumstances where surgery was required; and that the surgery and the primary injury itself left the worker incapacitated. The then workers’ compensation insurer paid compensation in various forms for a limited period; and the worker eventually obtained fitness to join Fire & Rescue in 1976. He still had some restrictions but not at the level that would stop him from undertaking that work.
The worker worked for Fire & Rescue from 1976 to 2008, when he was medically retired. The applicant submits that his primary issue was his knee. The applicant has had to pay compensation for aggravations of his pre-existing condition, which set out a chain of events whereby his knee became unstable and was prone to further injury from what would otherwise be innocuous events.
The applicant submits that Dr Sage sums it up quite well and he agrees with A/P Kleinman. As a matter of medicine, the worker’s knee continued to degenerate after the event and by 2006 the medial compartment was down to one millimetre of cartilage space. Mr Bracken on 25 May 2010 opined that 50% of the worker’s condition related to the injury in 1970. The applicant also relies on the opinion of the MAP. The reasons of the President deal extensively with the evidence.
The applicant submits that the only point the respondent has is the Limitation Act point; and it just does not arise. The respondent “clung” in the first arbitration to the enactment provisions in section 14, which is picked up in section 26.
The applicant submits that it can find no case where the Limitation Act has been applied to an apportionment exercise; and no case where it has been applied to a claim by a worker for workers’ compensation benefits. Any limitation on bringing a claim is to be found within the statute itself; and there are provisions that deal with limitations on a worker making a claim. The “great fiction” in the respondent’s argument is that there is somehow a time that can be fixed by reference to a particular date.
The applicant submits that before Arbitrator Beilby the respondent sought to agitate an analogy with section 151Z of the 1987 Act, which is heavily hinged upon the use of “tortfeasor”; and we are not dealing with tortfeasors in this situation.
Section 151Z is dealing with an action on a cause of action, which is a curial matter. It is not one that arises in a statutory tribunal. There was discussion of this in Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386. It is hinged in no uncertain terms on the damages claim brought under Part 5 with the associated indemnity claims that attach under section 151Z.
The applicant submits that the legislation must be given a contextual reading. It would be absurd to say that the Limitation Act applies to apportionment proceedings but has no application to common law proceedings. As a matter of statutory construction, an Act is not construed in a way that will give rise to an absurd result.
As for the estoppel point, the applicant submits that an Anshun estoppel does not operate simply because the respondent could and should have argued the point. The test is whether or not the subject matter was so closely connected to what is now being argued that it is unreasonable to “effectively bring this point back from the dead” when it could have been argued before the President. There is potential for inconsistency because the Limitation Act issue is abandoned and is now resurrected.
The applicant relies also on the decision in Commonwealth v Verwayen (“Voyager” case) [1990] HCA 39; (1990) 170 CLR 394. Inferentially, the respondent, having been represented by highly experienced counsel and senior counsel, cannot now argue, having not filed a Notice of Contention, that the entire matter can be extinguished on a point that was not decided by the arbitrator.
The applicant finally submits that the apportionment it is seeking is just and equitable; and it is appropriate having regard to the ongoing causal nexus applied in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) BCL 215 to apportion equal shares.
The respondent submits that the date of injury of 1 January 1970 was selected because the original finding of Arbitrator Peacock was that there was an injury to the left knee in or about 1970, so presumably it was an arbitrary date that was allocated in the circumstances. It does not take exception to that, but “rather oddly”, the injury is then described as an aggravation, acceleration, exacerbation or deterioration of a disease that occurred on 11 January 2007.

The respondent submits that it is known that what the applicant is asserting is that there was more than one injury that resulted in incapacity; and the one for which it acknowledges responsibility appears to be 11 January 2007, which is “some sort of disease injury”.
The Application seeks a determination of liability pursuant to sections 22 and 22A of injuries to the left knee in about 1970 and 11 January 2007 (deemed); and seeks contribution of 80%. The applicant sought two things – one was an apportionment of liability between the two injuries and then a contribution of 80% of past and future payments, which we know is weekly compensation and treatment.
In the Presidential decision, Judge Phillips records at paragraph 102 in broad form the test that the appellant (the applicant) submitted for apportionment. The respondent probably agrees with that proposition to the extent that it goes. It submits that it requires a little more consideration.
Mr Harrison was a worker in the employ of both respondents [sic] and there is no doubt that he sustained injuries with both. The question is, is the incapacity established in respect of each employer? The respondent submits that the Application in consideration of sections 22 and 22A requires some assessment of what is the incapacity.
The respondent submits that it must be an incapacity that sounds in entitlement to the worker. That is, from the respondent’s perspective, had the worker claimed compensation in respect of his 1970 injury for incapacity in 2007 and beyond, how would it have been assessed and what would it have been? The respondent submits that the applicant has paid no attention to that component of the statutory prescription and has confined itself simply to a consideration of the medical issues. That is insufficient to enliven the jurisdiction to make an apportionment and order contribution.
The respondent submits that section 22(1) is predicated on a proposition that incapacity or the need for treatment arises from more than one injury or results from more than one injury. In those circumstances, the Act directs that liability is to be apportioned in such a manner as the Commission determines. This invites a consideration of discretion.
The respondent submits that the methodology to be adopted is set out in section 22A. Section 22A(4) appears to be the touchstone for an application for contribution. There is a secondary discretionary consideration, that one person pays and the others contribute. That appears to be the only contribution power vested in the Commission.
The respondent asks whether the applicant has provided sufficient evidence to enliven that jurisdiction. It submits that all it has done is to provide material that supports the proposition that the worker sustained injury in 1970 and then a series of injuries from the 1980s until 2006, including not only injury to his left knee while employed by the applicant, but his lumbar spine; and he was medically discharged from its employ. He was certified unfit for the duties of a firefighter and the applicant has seen fit to pay him various amounts by way of weekly compensation since 2006 or 2007 until he reached retirement age.
The respondent submits that the material does not give any consideration, and particularly in respect of the worker’s employment with the respondent, to what his duties were; what he was paid; what his proper earnings were; and any of the matters that would have established a liability against the respondent had a claim been brought against it for weekly compensation.
The submission was made in the previous hearing and in the appeal that there was an absence of a coherent and persuasive case to establish what the liability, if any, of the respondent is. The respondent submits that it would be the starting point for consideration of whether the Commission would embark upon the exercise of apportionment.
The respondent submits that at the first step, the applicant fails; and the apportionment exercise “doesn’t even get under way”. Its second proposition is that, even if the exercise can be entertained, when one comes to section 22A(4), there is nowhere for the applicant to go, for two reasons. One is that due to the paucity of evidence other than the medical evidence, the Commission is not in a position to order that compensation is payable to the worker by one of the parties to the dispute. There is no evidence as to what compensation is payable by the respondent, or for that matter by the applicant. All we have is an array of data that does not express any real analysis of what was paid and why the applicant made those payments.
The respondent concedes that liability might be apportioned even if it has been discharged, by dint of section 22A(3), but it does not go on to indicate that contribution can be ordered even if the liability has been discharged; and subsection (3) would have work to do by dint of section 22A(8) when dealing with a dispute between scheme agents or insurers within its meaning.
The respondent therefore advances the proposition that the Commission does not get to a consideration of apportionment; and even if it does, there is no statutory mechanism available for contribution. The reasons are because of a dearth of data to support it embarking on that step (which is discretionary); and the text of subsection 22A(4) appears to have no application in circumstances where the applicant has simply made a voluntary payment to which it seeks contribution from the respondent.
The respondent refers to the decision in HIH v GIO and Anor [2000] NSWCC 25 (HIH), in which Chief Judge Campbell held that, by reference to section 22A(3), he could engage in apportionment, despite the fact that the liability had been discharged. There is no mention of section 22A(4), which was amended in 2001 and 2002. This may give some insight into why not.
The respondent submits that, if the Commission were to embark upon a consideration of apportionment, the same arguments must weigh in its favour in discretionary terms on any execution of that exercise. That is, the applicant has not seen fit to, or is incapable of, placing before the Commission coherent evidence of all the matters the respondent says are relevant to an assessment of the respective liabilities that are to be apportioned. They are matters that must weigh against the moving party, which surely bears an evidentiary onus in respect of those matters.
The respondent submits that the applicant’s submission seems to have proceeded on the basis that there is an established liability for the payments that have been made, at the rates that have been paid, for the periods they have been made, which is not clear when one examines the evidence. In the Application itself, there is a Claim Form of 9 December 2003 that relates to a back injury. There is a Notification of Injury Form of 5 September 2006 that relates to a knee injury. They are, to a greater or lesser extent, recorded or referred to in the medical evidence, along with other history given by the worker reaching back to the 1980’s during his employment with the applicant.
The respondent submits that the Application does not appear to contemplate, identify or recite in its formal terms that injuries that clearly require some consideration have been taken into account by all of the medical commentators. What has been identified is a deemed date of injury that arises from a concession that was made by the applicant when the worker’s lump sum claim was prosecuted before Arbitrator Peacock.
A claim for impairment can bear a different date of injury than a claim for treatment expenses or for weekly compensation. What the applicant has done is to say it has some findings of the Commission and the AMS and MAP, and “that seems like a pretty good basis to claim 80% of what we paid for everything…”.
The respondent submits that was a simplistic, naïve and unprincipled (in legal terms) approach. It has perpetuated itself into this claim; and creates evidentiary and legal difficulties. Even now, the approach is that “you’ve got an injury, we’ve paid for it and another injury that they’re responsible for and the balance of medical opinion weighs in favour of the first injury being significant; therefore, you should make an apportionment of 50/50…for both of the heads of compensation that have been claimed”. The respondent submits that cannot be the appropriate approach.
The respondent further submits that, had the claim been prosecuted against it, there would have been an assessment of weekly compensation and treatment expenses under the Workers Compensation Act 1926. There is a disparity in the statutory levels of compensation that might have been available to the worker. Mr Harrison would have been seeking a different form of relief against the applicant and respondent, but no consideration has been given to that in the way the claim is presented or argued.
The respondent refers to the way in which the applicant seeks to quantify the liability it seems to have conceded. The Application contains a detailed list of payments it has made, for both treatment and weekly compensation. The respondent submits that it is not clear how and to what extent the applicant ever assessed the worker’s entitlement or what it was really purporting to do. Not only has the applicant not placed before the Commission any evidence upon which it could assess the respondent’s potential liability, it does not really explain what it thinks its own liability is. It does not appear that the applicant’s schedule of payments relates to the date of injury recited in the Application. It appears to relate to the injury that was notified in September 2006, but the applicant may be able to explain it in better detail.
The respondent directs similar criticism at the claim for treatment expenses. It is clear that some must relate to treatment of the worker’s knee, but a lot are simply a financial record of an attendance on a doctor on a particular date. It is the applicant’s job to place them properly before the Commission and it does not. Despite the guidance the President may have given in the appeal, the applicant has not presented the case in the coherent, persuasive way that was required in order to obtain an apportionment and/or contribution.
The respondent submits that an important piece of evidence to consider in embarking on apportionment or contribution is that of Dr Sage that the worker was no longer fit even for possible suitable duties. It was necessary to examine the extent to which his incapacity results from his back condition, and his cardiac condition, which has been well recorded and was taken into account at the time of his medical retirement.
The respondent submits that, if the Commission got to the point of undertaking apportionment of liability for weekly payments, that would be significantly less than the 50% that was argued for by the applicant. It acknowledges that there might a higher proportion allocated in respect of treatment for the worker’s knee. His incapacity may result from many things, but his knee condition and the need for treatment would appear to only result from injury with the applicant or the multiple injuries with the respondent. Given the seriousness of the initiating injury and the surgery that everyone accepts was referrable to it, there could be a different apportionment for the treatment.
The respondent submits that Dr Millons’ report is consistent, persuasive and reasonable; and the respondent submits that I would accept his opinion, to the extent that he is capable of giving it. It relies on Dr Millons’ opinion that the worker was “carrying some back issues” that also added to his incapacity for work. It submits that the worker still had some residual capacity, but it was diminished or extinguished by his back condition, which can only be laid at the feet of the applicant.
As regards the limitation point, the respondent submits that it may be true that there are no decided cases. The matter of Bluescope Steel Ltd v Eason [2007] NSWWCCPD 172 clearly acknowledged that the Limitation Act could not be raised to bar a claim by a worker. One reason for that is that the operation of the Limitation Act is excluded from claims that have their own limitation period, which a claim by a worker does.
The respondent submits that we are dealing here with an action to recover money by virtue of an enactment, that is section 22A(4). The apportionment is really a declaration and the contribution is the remedy. The applicant submitted that the Commission is not a Chapter 3 court, but the Limitation Act makes no reference to a Chapter 3 court. There is reference in section 68A to claims before judicial tribunals, which clearly are not a Chapter 3 court. The respondent relies on section 68A; and submits that it has “raised it at every turn”. It submits that the fact that the extinction of a right or title is one that might be raised in a judicial tribunal results in a rejection of the proposition that it needs to be a Chapter 3 court.
The respondent refers to the matter of Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146 (Orellana-Fuentes), in which the Court of Appeal established that the Commission is not a court, but acknowledged that it was making judicial decisions.
The respondent submits that, on the face of it, section 14 of the Limitation Act applies and there is a six year limitation period. It has never argued that the entire claim is defeated by the Limitation Act, but is saying that to the extent that the claim is brought more than six years after the cause of action accrued, it is met by the Limitation Act defence.
As to the Anshun point, the respondent submits that the Limitation Act was pleaded in the first application, was argued in passing before the President and has been maintained. The idea that failing to put on a Notice of Contention somehow constituted some type of legal concession is not available.
The respondent submits that at every step there are discretionary matters to be considered, in sections 22(1), 22(5), 22A(1) and 22A(4). If the Commission were to embark on apportionment, it would take into account the different entitlements under the respective statutory schemes.
The respondent refers to Demolon Pty Ltd v Parbury Building Products [1996] NSWCA 147 (Demolon), in which the Court of Appeal rejected the proposition that a 1926 Act employer should only be liable for its assessed proportion of weekly payments at 1926 Act rates, rather than 1987 Act rates. That is not the argument the respondent is attempting to advance.
The respondent submits that the Commission would take into account the different levels of statutory liability when considering the question of apportionment in the first place. It does not see that that proposition was considered or argued in Demolon. It submits that if the Commission undertakes apportionment it will take into account a great deal more than simply questions of medical contribution; and if it gets to that stage it will also apply section 14 of the Limitation Act to the applicant’s claim, to the extent that it relates to an attempt to recover money based on the statute in respect of a payment more than six years before the commencement of these proceedings.
The respondent submits that, on matters of discretion and “just and equitable”, there is in evidence an email from Ms Bilton, an employee of the applicant, that refers to the worker having thrown out his records in relation to his injuries only six months ago as he didn’t think he needed them any more. This is an example of what can happen when the applicant is dilatory in bringing its claim. The applicant has been paying compensation since 2007 and its first application was made in 2018. The one that is before the Commission was brought in 2020.
In reply, the applicant submits that, in respect of the email from Ms Bilton, the respondent cannot say in the third set of proceedings, for the first time, that it is prejudiced because evidence has gone missing; and it suffers significant prejudice. If that were the case, it would have made application for a permanent stay.
The applicant submits that there was a dispute that the worker was entitled to weekly benefits, but there was a powerful concession made before the President that the worker was entitled to weekly benefits. That is, he was an injured worker within the meaning of the Act, he was entitled to be paid weekly benefits, and it follows that if he is totally or partially incapacitated for work, other heads of compensation are payable as well.
The applicant submits that it does not form part of the Commission’s duty or the applicant’s obligation to explain “chapter and verse” the basis for every single payment that was made. To raise this without having placed it on notice means that it is prejudiced and in any event it is not a basis to deny the exercise of power. The applicant refers to HIH, which was a very complex case, but no matter how complex, the Compensation Court had to do the best it could. That is why sections 22 and 22A are worded as they are.
The applicant submits that section 22A(3) clearly contemplates the case before the Commission. It contemplates the situation where a worker may be dead; and where a great deal of time has expired.
The applicant submits that section 22A(9) provides that the operation of section 22 is not to be limited because it provides for liability to be apportioned, rather than providing for payment of contribution. The statute says the limitation the respondent seeks to put on power does not exist, because what is taking place is a liability for apportionment, which thereafter moves to contribution. It is not a claim in monetary terms that the applicant must prove in terms of every single cent.
The applicant submits that the use in section 22(1) of the third person, singular, present and indicative, is very important and powerful. The Commission cannot decline to exercise power. Where it becomes discretionary is the percentage shares of relevant culpability.
As regards the Limitation Act applying to workers’ compensation, the applicant submits that despite the respondent’s industry, it has been unable to provide anything at all to assert that it could operate with this legislation. The language and wording of the legislation is entirely to the contrary.
While the respondent is now “pointing fingers at the worker’s back” and referring to Dr Sage’s evidence, the worker himself does not say that. The respondent wanted a statement from the worker. A statement was obtained and he attributes the predominant cause of his problems to his knees. He refers to the fact that his back played a role, but “nowhere near as significant as the knees”.
The applicant submits that unless there is an express enactment in the enabling legislation, the Limitation Act does not apply to matters before statutory tribunals. They do apply in a court exercising judicial power.

DISCUSSION AND FINDINGS

Apportionment

Section 22 of the 1987 Act provides:
“(1) If--
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker,
results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2) Liability to pay compensation under this Act includes--
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c) a liability in respect of a claim under Division 6 of Part 4, and
(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.
(3) Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.
(4) Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.
(5) The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether--
(a) liability to pay compensation under this Act should be apportioned under this section, or
(b) any such liability should be apportioned under this section in respect of different injuries.
The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer's own right) or the Authority.
(7) A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.
(8) This section applies to any liability arising before or after the commencement of this Act.”

Section 22A of the 1987 Act provides:
“(1) The apportionment of liability under section 22 is--
(a) in the case of the apportionment of liability between employers--to be on the basis of the relative length of the worker's employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and
(b) in the case of the apportionment of liability between insurers of the same employer--to be on the basis of the relative length of the employer's period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.
(3) Liability may be apportioned under section 22 even if the liability has been discharged.
(4) When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.
(5) The person ordered under subsection (4) to pay compensation to the worker is to be--
(a) in the case of apportionment between employers--the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case, and
(b) in the case of apportionment between insurers--the insurer of the employer at the time of the last injury, or such other of the insurers as the Commission considers reasonable in the special circumstances of the case.
(6) An order is not to be made under subsection (4) if the parties concerned have agreed as to the payment by one of them of the compensation concerned.
(7) In this section a reference to an insurer includes a reference to a self-insurer and a reference to a period of insurance includes a reference to a period of self-insurance. A liability in respect of a claim under Division 6 of Part 4 is for the purposes of this section taken to be a liability of the insurer of the employer concerned during the period that is relevant to that liability.
(8) In a case to which section 22 applies, if all of the insurers concerned (being either insurers of the same employer or of the different employers concerned) are insurers within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed--
(a) the compensation is (despite subsection (5)) payable by the last insurer or the last employer (as relevant to the case), with no apportionment of liability under section 22, and
(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that liability had been apportioned under section 22 (without the need for a determination of, or agreement as to, that apportionment).
(9) The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.”

Pursuant to section 22(1) of the 1987 Act, if Mr Harrison’s incapacity for work, permanent impairment and/or the need for medical treatment results from more than one injury, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
While section 22A(1) of the 1987 Act provides a basis on which liability may be apportioned, it also provides that it may be made on such other basis as the Commission considers just and equitable in the special circumstances of the case.
On appeal in this matter, President Phillips referred to the decision of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCR 716 (Baltica).
In Baltica, Clarke JA held:
“if the worker satisfies the test in a case where there are a number of work injuries and apportionment is sought the trial judge is then to apply the s 22 test and that test will be satisfied if the incapacity resulted partially from one injury (presumably the injury which led to the finding under s 33) and partly from another or other injuries.”

In Baltica, it was held that, if incapacity is found to have resulted from more than one injury then “the apportionment exercise will need to be carried out.”
President Phillips held that the first stage involves a determination of liability to pay compensation; and the second stage involves an apportionment of liability, having regard to the evidence relating to the injured worker’s capacity. This requires consideration of issues going to causation of incapacity.
The President went on to say [at 126]:
“If incapacity or permanent impairment suffered by the worker results from more than one injury then liability to pay compensation is to be apportioned in such manner as the Commission determines. The second stage involves a different inquiry to that of determining causation in a dispute about liability. It involves an inquiry as to whether incapacity resulted partially from one injury and partly from another or other injuries. It also involves an inquiry as to “whether the injury caused or materially contributed to the incapacity”. In other words, whether the incapacity was so connected with a number of injuries that as a matter of ordinary commonsense and experience it should be regarded as having resulted from all or any of them.”

I am satisfied that the worker’s incapacity for work results from more than one injury. The injury in respect of which the applicant seeks apportionment caused or materially contributed to the worker’s incapacity.
While I have considered Mr Harrison’s evidence, I have found it of less assistance than the medical evidence. The worker can, of course, give evidence of how he felt and his own belief as to the reason/s for his incapacity for work and the need for medical treatment. However, the nature of his first injury and its ultimate effect are better addressed by expert medical evidence.
The medical evidence is in agreement that when the worker injured his left knee in 1970, “the stage would have been set”, in Dr Millons’ words, for the development of degenerative changes in his knee with the passage of time. Most of the experts describe the worker’s eventual total knee replacement surgery as “inevitable”.
The MAP found that the worker’s left knee arthroscopy in February 2007 and total knee replacement in December 2007 were the inevitable consequence of his original injury and meniscectomy. The aggravations he sustained in the applicant’s employ would have accelerated the need for surgery.
Dr Bodel agreed almost entirely with the MAP. He opined that the worker’s main pathology arose as a result of having an open medial meniscectomy “all those years ago”; and a total knee replacement was inevitable. The injuries with the applicant, particularly on 5 September 2006, had brought forward the timing of the total knee replacement.
A/P Kleinman also opined that the worker’s most significant injury was the injury in 1970. An open medial meniscectomy will almost inevitably lead to medial compartment osteoarthritis. The nature and conditions of his work for the applicant aggravated his left knee condition and “maybe” accelerated the degenerative process in his left knee.
Dr Sage expressed his agreement with A/P Kleinman. By 2006, the worker’s medial compartment was down to one millimetre of cartilage space and “you would expect a severe amount of pain”. The important injury was the one in 1970, which led to medial meniscectomy. By 2006, even without the injury in the applicant’s employ, the worker would have expected significant symptoms. That injury brought on the need for total knee replacement, but probably only by two years.
It was after the knee surgery that the worker concluded his career with the applicant could not progress. He was certified fit for light duties but realistically there was no such work available. He therefore requested a medical discharge.
The worker had sustained some back injuries and had back pain, but I am not satisfied that he would have been incapacitated for work by that condition, had it not been for the injuries to his knees.
The worker’s own evidence in this regard is contradictory and unhelpful. He states that each time he consulted his general practitioner to obtain a certificate, he advised him that his knee condition was the reason he was unable to work. He referred to flare ups of pain but stated he had not had any specific treatment for his back and had learned to live with it. He later stated he had constant back pain that would have incapacitated him for work by 2010.
A/P Kleinman reported that he formed the impression from the worker that because of his backache, he would have difficulty performing sedentary work as he would have to keep changing position (emphasis added).
Dr Sage did not think the worker’s back symptoms in 2003 were significant. It was likely to be related to straining from the nature of his work, but there had been a significant transfer effect after the surgery.
By 2016, Dr Mitchell reported that the worker had pain and swelling in his left knee; ongoing low back pain; and cardiomyopathy. This was some eight years after his medical retirement and the worker was 64. Dr Mitchell also opined that the worker had some capacity for work, which appears to have been somewhat optimistic.
Dr Millons referred to the worker “carrying some back issues”, but he also opined that from the time of his medical retirement, with the condition of his knee, he would clearly have been unfit to resume the full duties of a fire fighter.
In considering whether the worker’s incapacity for work “results from” more than one injury, it is useful to refer to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; 10 NSWCCR 796 (Kooragang).
In Kooragang, Kirby P, as he then was, said:
“…it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

His honour went on to say that what is required is a “common sense evaluation of the causal chain…In each case, the question whether the incapacity or death ‘results from’ the impugned work injury…is a question of fact to be determined on the basis of evidence, including, where applicable, expert opinions…”
In this matter, the expert opinion is all one way. The inevitable outcome of the worker’s injury in 1970 and subsequent surgery was that he would eventually come to total knee replacement surgery. The surgery incapacitated him for work. It may have been brought forward by his work for the applicant and injuries sustained in its employ, but the eventual result would have been the same. The “causal chain” is unbroken.
Having found that the worker’s incapacity results from more than one injury, “the apportionment exercise will need to be carried out” (Baltica). The Commission must apportion liability “in such manner” as it determines. While section 22A provides a formula for apportionment, it also provides for apportionment that is “just and equitable in the special circumstances of the case”.
However, the apportionment exercise is only carried out where there is a liability to pay compensation.
I am satisfied that the applicant had a liability to pay compensation to the worker as a result of injury to his left knee arising out of or in the course of his employment with it.
The medical evidence, discussed above, supports the conclusion that the worker’s medical retirement from the applicant’s employ was because of the condition of his left knee, including the effect of the total knee replacement he had undergone. There is no evidence to support the proposition that his back condition was at that stage incapacitating him for work or brought forward his retirement. He believes he would not have been able to continue working due to the condition of his back, but even Dr Millons, on whose opinion the respondent relies, opined that, when he retired, with the condition of his knee, he would not have been able to resume the duties of a fire fighter.
I do not accept the respondent’s submission that it is not just and equitable to carry out the apportionment exercise in this matter. The circumstances of the injuries and the somewhat unsatisfactory evidence regarding the payments made by the applicant give rise to some difficulties, but in my view it would not be doing justice between the parties to refuse to perform the exercise. Both parties have been able to obtain evidence from the worker; and there is medical evidence that dates back as far as 2007. Demolon is authority that apportionment may occur even when the liability of one party would have arisen under the 1926 Act.
While Ms Bilton has given evidence that the worker has destroyed the documents relating to his claim and Mr Murray of QBE has given evidence that it has been unable to locate documents relating to the claim, that evidence is not crucial to a determination of apportionment.
As the applicant submits, HIH was a complex case. The worker was deceased, having sustained two significant physical injuries; and having taken his own life. Campbell CJ nonetheless undertook the apportionment exercise.
The experts who have apportioned liability in this matter vary in their opinions. The MAP apportioned liability of four-fifths to the respondent. Dr Bodel apportioned two-thirds to the respondent; Dr Millons apportioned three-fifths to the respondent; and Mr Bracken apportioned it equally. Dr Sage deducted only one-tenth for aggravation in the applicant’s employ, so it seems he would attribute nine-tenths to the worker’s employment with the respondent.
The applicant, having sought apportionment of liability of four-fifths to the respondent, resiled from that position at the hearing; and now seeks an equal apportionment. The respondent fairly and properly conceded that apportionment of weekly benefits and medical expenses with respect to treatment to the worker’s knee may differ. It resists any apportionment of liability for weekly benefits; and asserts that any contribution for which it may be held liable is subject to the Limitation Act.
The applicant referred to the decision of Arbitrator Minus in the matter of Reynolds; and provided a copy of that decision. It involved only one employer, but two insurers. The worker had undergone open medial meniscectomy in 1980 and it had been recommended in 2003 that he undergo total knee replacement. He had been retired from the Fire Brigade on medical grounds.
Arbitrator Minus apportioned liability equally between the insurers. While there are similarities between this matter and Reynolds, I have found it of limited assistance, given that each matter must be considered on its facts.
Having considered the evidence, and the submission by the applicant that an equal apportionment of liability is appropriate, I determine that liability should be apportioned equally between the applicant and the respondent.
The respondent also referred to the decision of Campbell CJ in HIH.
In HIH, GIO submitted that, as HIH had consented to an award that did not involve GIO, reliance on section 22 was no longer available to it.
His honour considered that section 22A(3) was determinative of the matter. It provides that liability may be apportioned even if liability has been discharged. The respondent submitted that there was no discussion of section 22A(4), perhaps because the legislation has been amended.
I do not consider that section 22A(4) affects the operation of section 22A(3) as it was applied in HIH. In my view, the purpose of section 22A(4) is to allow one person to pay the compensation, so as to simplify matters for the recipient. Section 22A(5) provides a further mechanism for the payments to be made, but allows the Commission to order otherwise in special circumstances.
The fact that liability has been accepted by the applicant does not mean that liability may not be apportioned between the parties. In HIH, Campbell CJ said: “I can see nothing in the language of s 22 or s 22A or in the structure or purpose of related provisions to conclude otherwise than that section means what it says and has application to the facts of his matter.”

Anshun Estoppel

The applicant submits that the respondent is estopped from relying on the Limitation Act because it did not file a Notice of Contention when the applicant appealed from the decision of Arbitrator Beilby.
The respondent submits that the Limitation Act was pleaded in the first application, was argued in passing before the President and has been maintained. The idea that failing to put on a Notice of Contention somehow constituted some type of legal concession is not available.
Arbitrator Beilby identified one of the issues for her determination as “Does the Limitation Act 1969 apply?”
On appeal, President Phillips [at 91] said: “…the respondent submits that the clear law is to the effect that it is the underlying right and title to contribution which arises from the payment of compensation which is subject to the Limitation Act 1969. In a claim such as the present, a claim for contribution brought after the expiration of six years from a payment of compensation is barred by ss14(1)(d) and 63 of the Limitation Act 1969.”
President Phillips did not determine the Limitation Act issue, as he determined the appeal in favour of the appellant (the applicant in these proceedings).
The principles of Anshun were summarised by the President in Secretary, Department of Communities and Justice v Miller and anor (No 5) [2020] NSWWCCPD 38. His honour stated [at 194]:
“The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v GroconLtd [1995] NSWCC 10; 11 NSWCCR 247 in the following terms:
‘The principles which I distil from these authorities are:
(a) the principle in the Port of Melbourne Authority v Anshun Pty Ltd extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.’”
If the respondent is permitted to rely on the Limitation Act, there will be no determination that is inconsistent with the determination on appeal. The issue was not determined. The matter was relevant to the original proceedings but was never abandoned by the respondent; and it made submissions on the issue. The fact that it did not file a Notice of Contention does not in my view found an Anshun estoppel. It relied on the matter in the original proceedings. I accept the respondent’s submission that failing to put on a Notice of Contention did not constitute some type of legal concession.

Application of the Limitation Act

The respondent submits that the Limitation Act applies to any contribution that it may be required to pay; and therefore to the extent that the claim is brought more than six years after the cause of action accrued, it is met by the Limitation Act defence.

Section 11 of the Limitation Act defines “action” as including any proceedings in a court.
Section 14 of the Act provides:
“(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,
(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,
(c) a cause of action to enforce a recognizance,
(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
(2) This section does not apply to:
(a) a cause of action to which section 19 applies, or
(b) a cause of action for contribution to which section 26 applies.
(3) For the purposes of paragraph (d) of subsection (1),
“enactment” includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.”

Section 68A of the Act provides:

“(1) Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, the party has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished.
(2) In subsection (1), a reference to proceedings before a judicial tribunal is a reference to proceedings before a court or person authorised by law or by agreement to bind the parties to the proceedings by a decision on a question arising in the proceedings as to whether or not a right or title has been extinguished under this Division.”

Neither party was able to provide any authority as to the application of the Limitation Act to proceedings in the Commission.

The respondent submitted that section 68A of the Limitation Act applies to the Commission, as it is a judicial tribunal.
The Commission is not a court: Orellana-Fuentes, in which the Court of Appeal, per Ipp JA (Spigelman CJ and Handley JA agreeing) held that although it had “some powers and trappings of a court, the cumulative effect of the matters that indicate that it is not a court is extremely powerful and compel the conclusion that the Commission is not a court.
Proceedings in the Commission therefore do not fall within the definition of “action” in section 11.
The Limitation Act applies only to the causes of action referred to in section 14. The respondent submits that this is an action to recover money by virtue of an enactment, that is section 22A(4) of the 1987 Act.
Section 22A(3) of the 1987 Act provides that liability may be apportioned under section 22 even if the liability has been discharged. Section 22A(4) provides that the Commission may order that compensation is payable by one person and the other person is to pay its apportioned share. There is nothing that requires the compensation to be paid in that way. The parties may agree as to which is to pay the compensation: section 22A(6); and the Commission is not then to make an order under section 22A(4). There is no reference in either section 22 or section 22A to any limitation on the payment of contribution.
The applicant submits that the Limitation Act is expressly excluded from the common law provisions of the 1987 Act. The Commission operates exclusively as a result of its creation by statute. The Limitation Act has been excluded from Part 5; and has been introduced only for the purpose of actions for indemnity pursuant to section 151Z of the Act.
The Limitation Act does not apply to any other proceedings in the Commission, including an action by the Nominal Insurer to recover payments of compensation from an uninsured employer. Such an action is determined by the Commission, which make such orders or awards as it thinks fit.
In a statutory scheme, it would be expected that if it was the intention that the Limitation Act apply to applications pursuant to sections 22 and 22A of the 1987 Act, the legislation would provide for such application.
I do not accept that the Limitation Act applies to contribution pursuant to section 22A of the 1987 Act.

SUMMARY

The applicant had a liability to pay compensation to the worker, Mr John Harrison, as a result of injury to his left knee deemed to have happened on 11 January 2007.

The worker’s incapacity, permanent impairment and the necessity for medical treatment result from more than one injury.

Liability for payments of compensation made to or on behalf of the worker is to be apportioned equally between the applicant and the respondent.
The respondent is not prevented by the operation of Anshun estoppel from relying on the Limitation Act with respect to payments made by the applicant.
The Limitation Act does not apply to payments made by the applicant.

Kerry Haddock
MEMBER

23 March 2021