Stephenson v Return to Work Corporation of South Australia

[2019] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STEPHENSON v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2019] SASCFC 89

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

25 July 2019

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY

ESTOPPEL

Appeal against decision of the Full Bench of the South Australian Employment Tribunal – where appellant suffered injury during employment, underwent an operation and was prescribed medications – where respondent consented to an initial award of lump sum compensation – where applicant made subsequent application for compensation and consent orders were entered – where appellant then made a subsequent successful application for compensation for impairments caused by use of prescribed medications – where Full Bench set aside award – whether consent orders properly founded a cause of action estoppel – whether Tribunal has jurisdiction to make an order which precludes all entitlements for impairments not yet suffered.

Held, per Kourakis CJ (Nicholson and Parker JJ agreeing): appeal allowed, orders of Full Bench set aside, orders of Hannon DPJ reinstated.

Workers Rehabilitation and Compensation Act 1986 (SA) pts 3, 4, 5, 6, 6A, ss 2, 32, 36, 43, 43A, 52, 53, 81, 88DA, 92C; Worker’s Compensation Act 1971 (SA), referred to.
Salmon Street Ltd (in liq) (formerly General Motors-Holden’s Ltd) v Jorgensen (1991) 56 SASR 158, applied.
Workcover/Vero Workers Compensation (SA) Ltd (Nursing Agency of Australia Pty Ltd) v Mathie (Vero) [2005] SAWCT 2, distinguished.

STEPHENSON v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASCFC 89

Full Court:      Kourakis CJ, Nicholson and Parker JJ

1. KOURAKIS CJ: The appellant, Mr Paul Stephenson, appeals against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the SAET respectively), setting aside the awards made in his favour by Hannon DPJ for injuries to his lower back, digestive system and skin, and holding instead that his claims were precluded by the terms of a consent order made at a conciliation conference resolving compensation claims made for other injuries, which provided that Mr Stephenson ‘has no further or other entitlement pursuant to s 43 of the now repealed Workers Rehabilitation and Compensation Act 1986 (SA)’ (the WRC Act). The Full Bench held that the order properly founded a cause of action estoppel. The correctness of that finding is in issue on this appeal. No question arises as to the legal effect of the underlying agreement as a matter of contract.

2. Mr Stephenson contends that the SAET has no jurisdiction to make an order which precludes all entitlements for impairments not yet suffered, but which may develop in the future, and that the awards at first instance should be restored.  Mr Stephenson’s submission should be accepted.  For the reasons that follow I would allow the appeal, set aside the order of the Full Bench and confirm the awards made by Hannon DPJ.

   Background

3. Mr Stephenson was a chef.  In January 2009, he suffered a spinal injury (the initial injury) during his employment as a chef at Baptist Care (SA) Inc. 

4. In June 2009 Mr Stephenson underwent a spinal fusion operation. Following the surgery, he was prescribed various medications which included opioids and antidepressants to alleviate the pain of the operation.

5. On 13 January 2011, the Employers Mutual Fund Ltd (EMF), on behalf of Return to Work Corporation of South Australia (RTW), accepted Mr Stephenson’s application for compensation and consented to an award of lump sum compensation assessed on the basis that he had suffered a 16 per cent whole person impairment (WPI) of the lumbar spine and 1 per cent WPI of his skin due to scarring from the surgery. It was accepted that the injuries were to be treated as arising from the same trauma for the purposes of s 43(6) of the WRC Act.

6. Mr Stephenson subsequently claimed lump sum compensation pursuant to s 43 of the WRC Act for injuries to his thoracic spine and left shoulder. The claims were rejected by EMF. However, on 21 February 2013, after a conciliation conference held pursuant to the resolution processes of the WRC Act, consent orders were made awarding Mr Stephenson lump sum compensation for a 10 per cent WPI attributable to his thoracic spine and left shoulder. The orders made by the conciliation officer were recorded as follows:

   With the consent of the parties I make the following orders:

   1.   The decision of the compensating authority dated 6 March 2013 is set aside, and substituted by the following:

   1.1The worker’s claim for compensation for a left shoulder injury, sustained as a sequel to the worker’s compensable low back strain with left & right sided sciatic injury sustained on 19 January 2009 and sequel thoracic spine injury, is accepted for reasonably incurred medical expenses pursuant to section 32 of the Act.

   2. The issues in dispute are expanded pursuant to section 88DA of the Act to make the following orders:

   2.1The worker is entitled to lump sum compensation in the amount of $18,400.00 pursuant to section 43 of the Act due to a 10% whole person impairment for the worker’s compensable thoracic spine and left shoulder injuries referred to in paragraph 1.1 above.

   3.2[sic] The worker has no further or other entitlement pursuant to section 43 of the Act arising from his compensable injuries sustained on 19 January 2009 mentioned in paragraph 1.1 above and/or any sequel thereof.

   4.   The worker is entitled to costs of the proceedings and reasonable disbursements, to be agreed or taxed.

   (Emphasis added)

7. The words, which I have italicised, are at the centre of the dispute between the parties as to the proper construction of that order. 

8. Mr Stephenson subsequently brought a claim for compensation which, relevantly to these proceedings, was for impairments to his: upper digestive system; lower digestive system; mastication and deglutition; and skin.

9. Mr Stephenson claimed that the impairments were caused by his use of medication for pain relief following surgery.

   Statutory provisions

10. The essential structure of the WRC Act is to:

    ·provide for the establishment of rehabilitation programs (Part 3);

    ·confer statutory rights to compensation (Part 4);

    ·impose a scheme (subject to exemptions) for the registration and levying of employers (Part 5);

    ·establish the constitution of the Workers Compensation Tribunal (the Tribunal) (Part 6); and

    ·establish a dispute resolution process (Part 6A).

11. The forms of compensation for which Part 4 provides are:

    ·medical expenses (Division 2);

    ·limited property damage (Division 3);

    ·income maintenance (Division 4);

    ·redemption of income maintenance (Division 4A);

    ·lump sum compensation for non-economic loss (Division 5); and

    ·compensation payable on death (Division 6).

12. Section 43 of the WRC Act is in Division 5 and provides:[1]

    [1]    Historical version: 1.7.2013 to 30.6.2015.

    43—Lump sum compensation

    (1) Subject to this Act, if a worker suffers a compensable injury resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.

    (2) Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.

    …

    (6) If a worker suffers 2 or more compensable injuries arising from the same trauma—

    (a)     the injuries may together be treated as 1 injury to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and

    (b)     the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those injuries in excess of the prescribed sum.

    (Emphasis added)

13. Section 43A(8) of the WRC Act provides:

    (8) An assessment of the degree of impairment resulting from an injury for the purposes of this Division must—

    (a)     be made after the injury has stabilised; and

    (b)     subject to subsection (9), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.

    (Emphasis added)

14. The dispute resolution process of the WRC Act commences with the making of a claim. Section 52 of the WRC Act requires a claim for compensation to be made, in a manner approved by the WorkCover Corporation of South Australia (the Corporation), in the period of six months ‘commencing on the day on which the entitlement to make the claim arises’. Section 53 of the WRC Act requires the Corporation to investigate and to determine a claim as expeditiously as reasonably practicable.

15. I observe here that the WRC Act replicates the claim-based structure of the repealed Workmen’s Compensation Act 1971 (SA) (the 1971 Act).  As King CJ observed in Salmon Street Ltd (in liq) (formerly General Motors-Holden’s Ltd) v Jorgensen (Jorgensen), that structure necessarily affects the application of cause of action, and Anshun, estoppel to workers compensation determinations:[2]

    The application of these principles to claims under Workers Compensation legislation presents difficulties.  If the claim were a claim for damages at common law, the position would be clear.  Where there is a judgment in an action for damages at common law for bodily injury resulting from a wrongful act, all claims for damages for bodily injury resulting from that act merge in the judgment and no action can subsequently be maintained for any further bodily injury subsequently discovered: see Fetter v Beal (1701) 1 Ld Raym 339; 91 ER 1122; Brunsden v Humphrey (1884) 14 QBD 141 at 148, per Bowen LJ. The rights to compensation under the Workers Compensation legislation, however, differ markedly in nature from the rights to damages for a wrongful act conferred by the common law and the means provided for enforcing claims for workers compensation are also very different from the common law remedies.

    The Workers Compensation Act does not create a single cause of action for compensation for injury sustained in a particular accident. A worker may under this Act, as was the case under the Commonwealth Employees’ Compensation Act 1930 (Cth) which was considered in Commonwealth v Matheson (1955) 93 CLR 403, be compensable separately in respect of disparate injuries sustained in the same accident and may pursue separate claims in respect of such injuries. Thus where a worker sustained a leg injury and a back injury in the same accident, it was held that the receipt of a lump sum for the leg injury did not disentitle the worker to subsequent weekly payments in respect of the back injury: see Lee v Commonwealth (1971) 18 FLR 400.

    Moreover the remedy conferred by the Act is not an action to recover compensation analogous to the remedy at common law. The Act provides for the giving of notice of injury and the making of a claim on the employer: s 27. There is an obligation on the employer to commence weekly payments “as soon as possible after the occurrence of the incapacity” (s 53(1)), and provision for an employee’s application to the court to be released from that obligation: s 53(2). There is provision for the registration of agreements for lump sums by way of compensation: Pt III, Div III.

    …

    In my opinion a worker who seeks to have a disputed right to compensation in respect of a particular injury determined by the Industrial Court is not required to raise in the proceedings all injuries or impairments which he has sustained in the accident or even all injuries or impairments of which he is then aware. He may obtain an award in respect of one or more injuries or impairments, and subsequently pursue his claim in respect of other injuries or impairments suffered in the same accident. If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award in order to determine whether the subsequent claim is barred.

    [2] (1991) 56 SASR 158 at 161-162.

16. The dispute resolution machinery of Part 6 of the WRC Act includes the establishment of the Tribunal as the successor to the Workers Rehabilitation and Compensation Tribunal. Division 2 allows the Tribunal to be constituted by a presidential member or a conciliation officer appointed pursuant to s 81 of the WRC Act. Division 9 enacts general principles governing proceedings in the Tribunal, including the obligation to act according to equity, good conscience and the substantial merits of the case. Section 88DA of the WRC Act empowers the Tribunal to ‘enlarge the scope of proceedings’. It provides:

    88DA—Power to enlarge scope of proceedings

    The Tribunal may, with the consent of all parties to proceedings, enlarge the scope of the proceedings to include questions that are not presently at issue in the proceedings.

17. The proper construction of the noun phrase ‘questions which are not presently at issue in the proceedings’ is central to the resolution of this appeal, but that power must be understood in the context of the dispute resolution process to which I now turn.

18. Part 6A of the WRC Act establishes the process of dispute resolution. A decision on a claim for compensation is a reviewable decision.[3]  A person with a direct interest in a reviewable decision may lodge a ‘notice of dispute’ in writing, written one month after receiving notice of the decision.[4]  RTW, as the relevant compensating authority, must reconsider a ‘disputed decision’.[5] If the determination is confirmed the Registrar of the Tribunal must refer the ‘dispute’ for conciliation. Section 92C, which governs conciliation proceedings, provides:

    [3]    Section 89A.

    [4]    Sections 90, 90A.

    [5]    Section 91.

    92C—Procedure in conciliation proceedings

    (1)In the course of conducting conciliation proceedings, the conciliator may interview the parties to the dispute separately or together.

    (2) The conciliator presiding at a conference may (subject to the rules) adjourn the conference from time to time to allow the parties to gather further information, to consider their respective positions or for other purposes relevant to the resolution of the dispute.

    (3) Evidence of anything said or done in the course of conciliation proceedings is only admissible in subsequent proceedings by consent of all parties to the proceedings.

    (4) However—

    (a)     evidence of a settlement reached in conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings; and

    (b)     evidence of the offers made in the course of conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying provisions for deciding questions about costs.

    (5) A settlement to which counsel or another representative of a party agrees at a conference is binding on the party.

    (6) The conciliator presiding at a conference may make a determination or order to give effect to a settlement reached at the conference.

    (7) A determination or order under subsection (6) is a determination or order of the Tribunal.

19. If the conciliation proceedings do not produce an agreed settlement of the ‘dispute’, the conciliator must refer the ‘dispute’ to the Tribunal, for ‘judicial determination of the disputed claim’.[6]  I will refer to the judicial determination of a dispute as its adjudication, and to that jurisdiction of the Tribunal as its adjudicative jurisdiction.  The Tribunal must decide the ‘dispute’ without regard to earlier proceedings.

    [6]    Workers Rehabilitation and Compensation Act 1986 (SA) ss 92D-94C,

    Construction of s 88DA

20. I return to the construction of s 88DA. The noun phrase ‘questions that are not presently at issue’ must concern the entitlements of a worker to compensation under the WRC Act. It more naturally refers to anticipated disputes over other forms of compensation for the same injury, or claims based on a different injury. It strains its meaning to include disputes which do not arise out of the provisions of the WRC Act. Issues over the contract of employment, or other unrelated contracts between a worker and employer, are not questions to which s 88DA of the WRC Act applies.

21. The structure of the WRC Act and the textual references to ‘a dispute’, ‘a notice of dispute’, or ‘a disputed decision’ strongly suggest that the questions must be ones that could be the subject of a claim made pursuant to s 52 of the WRC Act. That is to say, the questions that the proceeding can be enlarged to encompass are ones that concern whether the worker has an impairment of a kind for which the WRC Act provides compensation.

22. Moreover, the noun phrase must have the same meaning whether invoked in the conciliation or adjudicative proceedings of the Tribunal.  Parliament could not have intended to allow the parties by consent to transform the Tribunal from a specialist tribunal exercising the jurisdiction conferred by ss 92D and 94A of the WRC Act into a court of general jurisdiction.  I note in this respect that a determination or order made by the conciliation officer is an order of the Tribunal.

23. What then constitutes a question about entitlements to compensation arising under the WRC Act?  Plainly enough, there need not be a finding, or agreement, or even evidence, of a compensable injury before there can be a controversy over whether a worker has an entitlement under the WRC Act.  Whether or not a worker has a compensable injury at all may also be a subject of controversy.

24. Section 72 of the 1971 Act provides a procedure by which either a worker or an employer could apply for an order by which the liability for weekly payments or other compensation was ‘redeemed by the payment of a lump sum’.  An application pursuant to the section was commonly brought by an employer who disputed liability to make any payment.  The questions on such an application included whether the worker suffered from any injury and, if so, whether it was compensable.  If the employer denied that the worker had a compensable injury, the worker was generally made dux litis in the trial. There is no directly equivalent provision in the WRC Act. However, s 88DA of the WRC Act empowers the Tribunal to adjudicate disputes as to the existence of impairments, and the compensation payable under the Act for them, even when a claim has not yet been made, if the worker consents to the enlargement of a proceeding which has been referred into the Tribunal. Equally, the worker can consent to an enlargement of the dispute referred for conciliation, and therefore also consent to orders or determinations of questions concerning the compensability of impairments other than those dealt with by the disputed determination.

1. It will be necessary to consider more closely the precise nature of the questions that can be asked and resolved in enlarged proceedings. It is sufficient for now to observe that the relevant questions, when a dispute over a worker’s rejected claim is adjudicated, are essentially threefold:

   ·Is the worker suffering any injury or impairment?

   ·How was it caused?

   ·On the application of the WRC Act properly construed, what award of compensation, if any, should be made?

2. The first two questions are factual and the third one, usually, of mixed fact and law.  In the adjudicative jurisdiction of the Tribunal, the same questions must be answered with respect to any matter raised on the enlargement of a dispute.  For the reasons already given, the text and structure of the WRC Act suggest that consent orders made in conciliation proceedings must resolve questions in the same way; that is, by determining that there is, or is not, an injury or impairment, and making an order for a particular form of compensation or dismissing the claim, respectively.  I deal with RTW’s contentions to the contrary below.

   The trial

3. Mr Stephenson’s disputed claim was heard before Hannon DPJ on six occasions between June 2016 and March 2017. Hannon DPJ found that Mr Stephenson was aware of some symptoms associated with the impairments at the time the consent orders were made, but that he was not aware that they might develop into impairments (by implication holding, therefore, that he was not then suffering from a compensable impairment) and did not understand that the orders precluded him pursuing a claim for any future impairments.  Hannon DPJ held that the claims were not precluded by the consent order and made lump sum compensation awards with respect to those injuries.

   Appeal to the Full Bench

4. RTW appealed against the awards made by Hannon DPJ.  On 21 February 2018 the Full Bench, comprising of Dolphin PJ, Gilchrist and Farrell DPJ, allowed the appeal, set aside the awards and confirmed EMF’s determination to reject Mr Stephenson’s claim.  The Full Bench held that Mr Stephenson was precluded from pursuing those claims by reason of a cause of action estoppel founded on the consent orders, because it accepted that the consent orders could operate as a general discharge.  The Full Bench distinguished the decision in Jorgensen[7] as follows:[8]

   [36]In our view Salmon Street v Jorgensen is clearly distinguishable. Whilst it must be accepted that in conformity with what King CJ said the WR&C Act does not create a single cause of action for compensation for injury sustained in a particular accident, it was significant that the consent order in that case was confined to specified injuries and the later claim was in respect of an injury different to that specified in the consent orders. Here the consent orders were not confined to specified injuries.

   [7] (1991) 56 SASR 158.

   [8]    Return to Work SA v Stephenson [2018] SAET 29 at [36].

5. With respect to the Full Bench, once it is accepted that the WRC Act, by retaining the claim-based approach of the 1971 Act, does not create a single cause of action for compensation, the reasoning in Jorgensen applies a fortiori to the consent order of 21 February 2013.  The passages cited from the reasons of King CJ do not suggest that the limited operation of cause of action estoppel in workers compensation proceedings could be avoided by the simple device of referring to all or any future injuries in the consent order.  As King CJ pointed out in Jorgensen, any order of the Tribunal can only determine to make, or decline to make, ‘an award in respect of one or more injuries or impairments’ and, in that event only, ‘the claim in respect of that injury or impairment merges in the determination’.[9]   It is not possible in a claim‑based system to determine, by an award of compensation or dismissal of a claim for an existing injury, claims for unspecified injuries or impairments which may be suffered in the future, in a way which will support a cause of action estoppel. 

   [9] (1991) 56 SASR 158 at 162.

   Grounds of appeal

6. By way of an amended notice of appeal, Mr Stephenson appeals against the decision of the Full Bench on the following grounds:

   3.1The Full Bench failed to resolve, in accordance with law, the appeal, in that it:-

   3.1.1  failed to address and consider the appellant worker’s notice of alternative contentions;

   3.1.2  failed to address and consider submissions made on behalf of the appellant worker centrally relevant to the determination of the appeal.

   3.2The Full Bench erred in concluding that the making of the claims the subject of the review proceedings was barred by the consent orders made on 21 February 2013, and in particular order 3.2, and the terms thereof, in particular, by relying on an action arising out of the consent order which went beyond the statutory jurisdiction of the South Australian Workers Compensation Tribunal under the Workers Rehabilitation and Compensation Act 1986.

   3.3The Full Bench misconstrued the meaning and effect of the consent orders made on 21 February 2013 and, in particular, order 3.2.

   The submissions

7. RTW submits that any matter determined by consent orders is the subject of res judicata or ‘cause of action estoppel’ and the orders operate as a preclusion.  That submission is not disputed and can be accepted.  However, the rule of preclusion demands a proper identification of the matter which has been finally determined.  In short, that submission in itself does not confront logically the anterior question of what are the matters which can be adjudicated, or conciliated, by the Tribunal.

8. RTW also submits that there was effectively no limit to what may be agreed on at a conciliation conference.  It emphasised that the negotiated settlement of disputes was a ‘key aspect of the scheme provided for under the WRC Act’.  RTW submitted that to limit the orders which may be made on a conciliation would undermine the object of the WRC Act ‘to reduce litigation and adversarial contests to the greatest possible extent’.[10] As RTW recognised, that object finds expression in s 91A and s 92C of the WRC Act, which mandate a conciliation conference for all disputes referred into the Tribunal. That object is also advanced by s 88DA, insofar as it allows the enlargement of proceedings on the conciliation conference. Section 88DA also advances the object of reducing litigation, in its application to the adjudicative jurisdiction of the Tribunal, by allowing contested questions of fact and law to be determined, even if not yet the subject of a claim.

   [10] Section 2(1)(f).

9. However, RTW contends that, to reduce litigation to the greatest extent possible, a conciliated settlement should be allowed to extend to an agreement between the parties as to future liabilities, obligations or claims under the Act, at the least arising from events that have already occurred and with respect to litigation already commenced.  RTW continues:

   … it is natural and unsurprising that the settlement of a claim under the Act should extend to agreement concerning the release and discharge of the compensating authority from both present and future obligations arising from the injury in respect of which the claim is made and any sequel to that injury.

10. I reject that submission. 

11. The object of s 2(1)(f) of the WRC Act is to ‘reduce litigation and adversarial contests’ over those claims actually made, or foreshadowed, or anticipated to be made, pursuant to s 52 of the WRC Act. That object is reflected in the very establishment of conciliation as the first mandatory step after the determination of a claim by RTW is disputed. An order operating as ‘a release and discharge … from future obligations’ does more than reduce litigation over claims. It prevents claims for future impairments being made at all. Much clearer language would be required to construe beneficial and protective workers compensation legislation in a way which allows workers to bargain away claims for injuries which they have not yet suffered, and when they can have no appreciation of the extent of the impairment with which they may be inflicted in the future.

12. In support of its submission that there is effectively no limit to what might be agreed at a conciliation conference held pursuant to s 92C, RTW relied on a passage from the judgment of the South Australian Workers Compensation Tribunal in WorkCover/Vero Workers Compensation (SA) Ltd (Nursing Agency of Australia Pty Ltd) v Mathie (Mathie) in which their Honours McCusker, Gilchrist and Hannon DPJ said:[11]

    [28]In our view, the objects and scheme of the Act reflect Parliament’s contemplation that conciliation will be a robust process of give and take, that subject to them being lawful and enforceable may include creative solutions, and that agreements reached through the process will be binding and enduring.[12]

    [11] [2005] SAWCT 2 at [28].

    [12]   I note that that passage must, as Napier J warned long ago, be read secundum materiam, that is to say according to the facts and circumstances of the case itself.

13. On close analysis, Mathie provides no support for RTW’s contentions.  The dispute before the conciliation officer in Mathie was a determination made pursuant to s 36 of the WRC Act to discontinue weekly payments. At a conciliation conference, Mr Mathie’s claim that he was entitled to a higher weekly rate and WorkCover Corporation’s discontinuation notice (s 36 notice) were negotiated.

14. The outcome of the conciliation conference appears in the reasons of the Full Bench in Mathie as follows:[13]

    [6]The consent orders set aside the Corporation’s s 36 determination. They recorded that the worker suffered a compensable disability with his employer on or about 14 September 2001, that he suffered an incapacity for work as a consequence thereof and was entitled to weekly payments from 24 October 2001 to 13 January 2003, that the relevant date for the purposes of quantifying those payments was 24 October 2001, and importantly, in the context of this case, they recorded “The worker ceased to be incapacitated as at 13/1/03 and has no entitlement to income maintenance after that date.”

    [13]   WorkCover/Vero Workers Compensation (SA) Ltd (Nursing Agency of Australia Pty Ltd) v Mathie [2005] SAWCT 2 at [6].

15. It is important to appreciate that if the Corporation’s s 36 notice was dismissed on an adjudication, Mr Mathie’s weekly compensation would have continued, indefinitely into the future, until a further s 36 notice supported on proper grounds was served. On the other hand, if the Corporation had been successful, the payments of weekly compensation would have been discontinued well before 13 January 2003. The consent determination was premised on all applications by Mr Mathie and the Corporation necessary to finally determine all existing entitlements to compensation being before the Tribunal. On that premise, Mr Mathie and the Corporation agreed that he had been incapacitated for work and was entitled to weekly payments when the s 36 notice was issued, but became fit for work on 14 January 2003.

16. The Full Bench explained:[14]

    [24]It is true that an adjudication upon the merits of the worker’s dispute would not have required the making of a finding that the worker had no entitlement to income maintenance after 13 January 2003 on account of any compensable disability. However, it does not follow that the consent orders do not define the rights and liabilities of the parties in the terms specified or that they cannot create issue estoppel in connection with matters outside of the issues raised by the initial claim, the determination and the Notice of Dispute.

    [14]   WorkCover/Vero Workers Compensation (SA) Ltd (Nursing Agency of Australia Pty Ltd) v Mathie  [2005] SAWCT 2 at [24].

17. I observe here that even though the Full Bench did not refer to s 88DA of the WRC Act, that section is the express statutory basis for the premise on which the consent determination was made.

18. The ‘creative solution’ in Mathie was therefore no more than the determination of Mr Mathie’s existing entitlement by an enlargement of the proceedings beyond the s 36 notice. Importantly, the Full Bench in Mathie accepted that the consent order could only operate to preclude a claim which was inconsistent with the agreed fact on which the order was made so that Mr Mathie suffered no incapacity on 14 January 2003.  Mr Mathie’s subsequent claim was brought on the factual contention that some months after his recovery on 14 January 2003 there was a deterioration of his condition which left him incapacitated for work.  The Full Bench therefore remitted Mr Mathie’s subsequent claim to another presidential member for determination of the application in conformity with its reasons.[15]  Whether or not Mr Mathie’s subsequent claim was, in substance, inconsistent with the determination that he had no incapacity on 14 January 2003 would be the critical question in the application of cause of action estoppel to that claim.

    [15]   WorkCover/Vero Workers Compensation (SA) Ltd (Nursing Agency of Australia Pty Ltd) v Mathie [2005] SAWCT 2 at [19]-[20], [43]-[44].

19. Mr Stephenson contends that

    … the Tribunal had power or jurisdiction to make a determination or order as to entitlement on a claim for lump sum compensation at the time the determination or order was made, but did not have power or jurisdiction to order or determine that there could never be such an entitlement in the future.

20. That contention should be accepted.  I only add, by way of observation, that there is no statutory obstacle to an agreement which confers benefits on a worker of a kind or amount which could not be the subject of an award of compensation in exchange for the worker consenting to a particular determination of his claims for compensation for identified injuries alleged to have been suffered.  In that aspect of the negotiations there is room for ‘creativity’, but the room does not extend to the framing of the Tribunal’s orders.  Those orders are limited by the text and structure of the WRC Act.

21. Mr Stephenson’s claim has proceeded on the premise that he was not suffering the digestive system and mastication and deglutition impairments when the consent order was made.  It follows that there can be no cause of action estoppel. 

22. I observe, however, that on the other hand, if, as a matter of fact, Mr Stephenson did have an impairment, it would not matter that the procedures by which an assessment of that impairment is undertaken for the purposes of s 43 of the WRC Act had not yet been undertaken. Mr Stephenson’s contention and submissions to that effect conflates the existence of an underlying entitlement with the procedure necessary to prove the impairment and justify an award pursuant to s 43.

    Construction of the consent order

23. Mr Stephenson submits that the question answered, and the matter determined by the consent orders, was that he had no present entitlement to compensation pursuant to s 43 of the WRC Act, other than that awarded by consent pursuant to paragraph [2.1] of the consent order. Mr Stephenson submits that so much follows from the use of the present tense in [3.2].

24. The respondent’s response to the appellant’s reliance on the use of the present tense was that the order was drafted (as statutes are), so to speak, ‘continuously in the present’.  I reject the analogy.  Consent orders (generally) resolve an inter partes legal controversy arising out of past or existing conduct and circumstances.  Statutes confer rights and impose obligations (generally) prospectively on all persons to whom they apply.  The former has no need to be always speaking, and the latter must, if it is to be effective. 

25. The respondent also contends that, unless consent orders are taken to speak continuously in the present tense, they have no utility.  That submission too must be rejected.  The consent orders may not give RTW the future immunity from action it hoped to gain, but they nonetheless have the same utility which adjudicative orders made in the same terms in the adjudicative jurisdiction of the Tribunal would have had.  And so it must be, because just as consent orders are assimilated with orders of the Tribunal, so too must they operate as orders of the Tribunal would, if a claim had been made by Mr Stephenson on 21 February 2013 for digestive system, mastication and degluitition, and skin impairment.  The Tribunal could do no more than find that he did, or did not, at that time suffer an impairment, and make or refuse an award accordingly.  Any subsequent claim based on a compensable disability, whether from an injury other than the injuries specified in paragraph [1], or from a sequel of those injuries which he alleged existed when the orders were made, is precluded.  Claims based on subsequently incurred impairments are not.

26. I observe that the injury sustained on 19 January 2009, identified in paragraph [1.1] of the consent order, is low back strain with left and right sided sciatic injury. Paragraph [1.1] also refers to the left shoulder injury and the thoracic spine injuries as sequels of the low back strain and right sided sciatica, and, in respect of them, accepts the worker’s claim, pursuant to s 32 of the WRC Act, for medical expenses compensation.

27. Paragraph [2.1] of the consent order awards a sum pursuant to s 43 for the same sequelae, even though they are not referred to as such in paragraph [2.1].

28. The phrase in paragraph [3.2] ‘compensable injuries sustained on 19 January 2009 mentioned in paragraph 1.1’ refers to both the low back strain with sciatica and the thoracic spine and shoulder injuries, even though they were contracted later as sequalae.  So much seems to follow from the use of the plural ‘injuries’.  It follows that paragraph [3.2] provides that the worker ‘has no further or other entitlement’ arising from all of the mentioned injuries.  The use of the conjunctive and disjunctive ‘and/or’ appears to be unnecessary, the intent being that the worker has ‘no further or other entitlement’ for any of those injuries.

29. Paragraph [3.2] is unnecessary insofar as it precludes a further claim for the low back strain and sciatica, the left shoulder injury and the thoracic spine injury. The worker can have ‘no further’ entitlement because the consent determination is final adjudication of the compensation to which he is entitled pursuant to s 43 of the WRC Act. So much follows expressly from s 88I of the WRC Act. It follows also by necessary implication from ss 43 and 43A and the ‘WorkCover Guidelines’ published pursuant to s 43A of the WRC Act. Of course, if there were special reasons to do so, the order could be set aside and theoretically a higher award made for those injuries. However, that would not be a further entitlement because the original award would be set aside and any new award made would simply be Mr Stephenson’s entitlement. True it is that Mr Stephenson could claim s 43 compensation if those impairments were aggravated or exacerbated in compensable circumstances, but that compensation is for a new injury, the aggravation or exacerbation, and is not further or additional compensation for the impairment compensated by the consent orders of 13 January 2011 and 21 February 2013. Be that as it may, matters of that kind are not in issue in these proceedings. It is the effect of paragraph [3.2] of the consent order on the claim for s 43 compensation for different sequelae, namely impairments to Mr Stephenson’s upper digestive system, lower digestive system, mastication, deglutition and skin, which is disputed.

30. By declaring that Mr Stephenson had ‘no other entitlement’ for any sequel of the identified spinal sciatica and shoulder injuries, paragraph [3.2] of the consent order can do no more than declare that there was no sequel of those injuries producing an impairment which would entitle Mr Stephenson to an award pursuant to s 43 of the WRC Act for those conditions as of that date. By reason of the enlargement of the issues by paragraph [2] of the consent order, it is as if Mr Stephenson had made a claim pursuant to s 43 of the WRC Act for an award for all impairments causing sequels, and it was agreed that he had no other impairment. That is the natural meaning of the order. It is also the construction it must bear, because the enlargement permitted by s 88DA of the WRC Act is limited to matters which may be the subject of a claim. If Mr Stephenson had made such an omnibus claim in fact, and it had been dismissed by the Tribunal, he would not have been precluded from bringing a further claim in the future, when, and if, he came to suffer another impairment attributable to the compensable injuries. Only a subsequent claim which required, or implied, a finding of fact that Mr Stephenson was suffering that impairment on 21 February 2013, is precluded by cause of action estoppel. However, that is not the finding made by Hannon DJP.

    Conclusion

1. I would allow the appeal.  I would set aside the orders of the Full Bench.  I would order instead that the appeal from the orders of Hannon DPJ be dismissed and reinstate the orders of Hannon DPJ.

2. NICHOLSON J:        I agree with the orders proposed by the Chief Justice for the reasons he has given.

3. PARKER J:          I would allow the appeal.  I agree with the reasons of the Chief Justice and the order he proposes.