Sun v State of New South Wales (Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sun v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 572
APPLICANT:	Yun Sun
RESPONDENT:	State of New South Wales (Sydney Local Health District)
MEMBER:	Cameron Burge
DATE OF DECISION:	30 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury claim for permanent impairment compensation; whether prior award by Workers Compensation Commission of a secondary psychological injury gives rise to an estoppel of any kind or a res judicata such as to prevent the applicant bringing a claim for primary psychological injury; Held – the previous findings of the Commission do not give rise to any estoppel or res judicata; the applicant did not have the necessary evidence to enable him to bring a claim for primary psychological injury until such time as he had an opinion from an expert which assessed his impairment from such injury at 15% or more; as a result there is no Anshun estoppel; the estoppel defences are the only ones raised by the respondent against the applicant’s claim; This being so, and given the only medical evidence in the matter assesses the applicant as suffering a 15% whole person impairment, the Commission will move to assess the applicant’s impairment in accordance with the medical evidence; respondent ordered to pay the applicant permanent impairment compensation for a 15% whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a primary psychological injury in the course of his employment with the respondent, with a deemed date of injury of 24 November 2021. 2. As a result of the injury referred to in [1] above, the applicant suffered a 15% whole person impairment. 3. The respondent is to pay the applicant the sum of $37,770 in respect of a 15% whole person impairment for his psychological injury with a deemed date of injury of 24 November 2021.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Yun Sun, brings proceedings seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to an alleged primary psychological injury with a deemed date of 24 November 2021, being the date of the lump sum compensation claim.
The applicant’s claim has a regrettably lengthy history. The applicant had previously brought proceedings in the then Workers Compensation Commission in which he made a claim for weekly compensation together with medical expenses which were the subject of an ex tempore oral determination by Arbitrator Stanton on 20 June 2014.
A Certificate of Determination was issued on that date and relevantly found the applicant developed a psychological injury by way of anxiety and depressive disorder as a consequence of personal injury to his low back, left hip and right knee in the course of his employment with State of New South Wales (Sydney Local Health District), the respondent. The arbitrator then made orders for the payment of weekly compensation and medical expenses consistent with his findings.
On 11 March 2021, a Medical Assessment Certificate (MAC) of Medical Assessor Crane was issued in relation to the applicant’s physical injuries. The Medical Assessor found the applicant suffered from a 5% whole person impairment. The applicant appealed, and on
21 June 2021, a Medical Appeal Panel of the Commission upheld the applicant’s appeal and assessed him as suffering from an 11% whole person impairment for the injuries to his lumbar spine, right lower extremity and upper digestive tract suffered on 2 August 2011.
On 24 November 2021, the applicant’s solicitors served on the respondent’s insurer a claim for permanent impairment compensation in respect of a 15% whole person impairment said to have arisen as a result of a primary psychological injury claimed to have a deemed date of 12 March 2012.
On 24 December 2021, the respondent’s insurer issued a Dispute Notice in which it denied liability on the basis the applicant’s permanent impairment resulted from a secondary psychological injury. Additionally, the respondent alleged that the applicant was estopped from claiming a primary psychological injury owing to the findings of the arbitrator in the previous proceedings, which it asserted was a clear finding of secondary psychological injury for which the applicant is not entitled to any lump sum compensation.
The respondent also alleges the decision in the previous proceedings gives rise to a res judicata and an issue estoppel which prevent the applicant from alleging the psychological injury sustained by him on 12 March 2012 is a primary injury.
In the alternative, the respondent also alleges the applicant is estopped from bringing the current proceedings and relies on the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun), on the basis it was unreasonable for the applicant not to have pleaded a primary psychological injury in the earlier proceedings, meaning he is not entitled to now make that alternative allegation.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the findings of the arbitrator in the previous proceedings gave rise to a res judicata estoppel;
(b)    whether the arbitrator’s findings in the previous proceedings gave rise to an issue estoppel;
(c)    whether the manner in which the applicant brought the previous proceedings gave rise to an estoppel by conduct, and
(d)    whether the applicant is estopped from bringing those proceedings by virtue of an Anshun estoppel.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 4 July 2023. At the hearing, the applicant was represented by Mr Adhikary of counsel instructed by Mr Lehmann. The respondent was represented by Mr Gaitanis of counsel instructed by Mr Krieg.
At the hearing, the Commission determined, and the parties agreed, that the matter would best be dealt with by way of written submissions. The applicant’s submissions were lodged on 7 July 2023. The respondent’s submissions were lodged on 18 July 2023 and the applicant’s submissions in reply on 27 July 2023.
After the parties had lodged their submissions, the Presidential decision in Gimis v Tweed Shire Council [2023] NSWPICPD (Gimis) was delivered. The parties contacted the Commission following that matter being decided, and on 21 August 2023, further directions were issued requesting the parties make further submissions addressing the effect of the Decision in Gimis on this matter. The respondent’s submissions in response to that direction were lodged on 25 August 2023, and the applicant’s on 30 August 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply and attachments, and
(c)    Respondent’s Application to Admit Late Documents (AALD) dated 5 July 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Issue estoppel and res judicata

The respondent alleged the applicant was estopped from making a claim for primary psychological injury by virtue of the findings and orders made by the arbitrator in the previous proceedings. The respondent bears the onus of proving the existence of an estoppel or res judicata. The doctrine of res judicata (also known as “cause of action” estoppel) provides that a cause of action which has been determined by a Court of competent jurisdiction, or by a lawfully constituted Tribunal, may not be re-litigated.
In the previous proceedings, following submissions by the parties, the arbitrator proceeded to determine the matter on an ex tempore basis. The arbitrator defined the dispute before him as follows:
“This is an application which seeks weekly compensation benefits… in relation to the two assertions of injury as detailed at part 4 of the Application. As was noted earlier… the injury on 2 August 2011 is said to have brought about the physical injuries described and is also seeking… involved a consequential psychiatric-type disorder… what can be called a nature and conditions-type allegation… as particularized to harassment-type matters and is also said to have brought about a psychiatric-type injury.”
The arbitrator then made various findings, including those relating to the psychological injury. At approximately [56.41] of the recording, the arbitrator found:
“The applicant is describing the onset of the anxiety-type problem as occurring in the context of practical problems with endeavouring to return to work on suitable duties after the physical injuries he has sustained so in that sense, there is a causal chain of events which commences with the physical injury on 20 August 2011… [The facts of this matter have] some parallels for instance with the factual matters before Deputy President Roche in Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 in which the physical injury set in chain a series of events which included the worker reacting badly to the communications from the scheme agent with respect to injury management plans and it was found by the arbitrator in the first instance and confirmed by the Deputy President on appeal that those psychiatric symptoms were resulting from the original physical injury… all of this is just an application of what Justice Kirby said in the well-known case of appellants Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.”
Following the arbitrator’s reasons, a Certificate of Determination was issued by the Workers Compensation Commission on 20 June 2014, in which a specific finding to the following effect was made:
“(b). The applicant has consequentially developed an anxiety state and depressive disorder as a result of the injury on 2 August 2011.”
The parties agree that as a result of the arbitrator’s decision, the applicant was subsequently awarded ongoing payments of weekly compensation arising from both physical and psychological injuries as found by the arbitrator.
The applicant did not make a claim for permanent impairment compensation with respect to his psychological injury until a letter of claim from his solicitors was served on
24 November 2021. Liability for that claim was disputed on 24 December 2021 on the basis the applicant was estopped from alleging a primary psychological injury in respect of the earlier Certificate of Determination and the arbitrator’s oral reasons.
It is trite to say that an injured worker may suffer from both a primary and psychological injury. In this matter, it is noteworthy the arbitrator made no finding or order which decided whether the applicant did or did not sustain a primary psychological injury. Whilst the arbitrator decided the applicant sustained a consequential psychological condition, in my view, the issue of whether the applicant has sustained a primary psychological injury remained extant.
An examination of the recording of the previous matter reveals the arbitrator did not explicitly state the applicant was not suffering from a primary psychological injury, nor did he determine an award for the respondent with respect to such an allegation. Given the nature of the compensation sought in the earlier proceedings, once the Arbitrator was satisfied of the presence of a secondary psychological condition, it was not necessary for him to make findings either in favour or against the presence of a primary psychological injury.
In making his findings, the arbitrator considered whether s 11A operated as a defence to the applicant’s psychological injury and did so in the context of the matters in dispute before him. Given the arbitrator made a finding of secondary psychological injury, he did not have to determine whether s 11A applied as a defence, because that section only applies to an injury pursuant to s 4 of the 1987 Act and does not apply to secondary or consequential conditions. The fact the arbitrator left that the defence pursuant to s 11A unresolved in its substance is consistent with his not having determined the question of whether the applicant suffered a primary psychological injury, because the arbitrator would have needed to determine that issue had such a finding been made.
There was no claim for permanent impairment compensation before the arbitrator in the previous proceedings. As such, it was not necessary for the arbitrator to decide for the purposes of the claim which was before him, whether a primary psychological injury had been sustained. Once the arbitrator determined the applicant had sustained a psychological issue, that was sufficient for him to then consider the incapacity which resulted from that secondary injury together with those resulting from the physical incapacity.
As Dixon J (as he then was) noted in Blair v Curran (1939) 62 CLR 464, “Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion”.
The parties addressed the Commission in relation to the recent presidential decision of Gimis v Tweed Shire Council [2023] NSWPICPD 44 (Gimis). In that matter, Deputy President Wood noted [45]:
“The fact that the relief sought in these proceedings is different from that sought in the earlier proceedings does not operate to prevent an estoppel arising. The relevant facts determined in the earlier proceedings were the awards for the respondent in relation to the allegation of injury to the applicant’s cervical spine and left shoulder. A determination of whether the appellant suffered an injury to one or both of those body parts is an indispensable factual foundation necessary to entitle the appellant to his relief sought, whether it is a claim for weekly payments or a lump sum claim, or some other benefit attached to an injury.”
The respondent submitted that by analogy to the present matter, the fact that compensation under s 66 of the 1987 Act was not sought in the earlier proceedings is not a barrier to the operation of estoppel principles.
The applicant submitted the circumstances of this matter are materially different to those in Gimis because the present matter does not pertain to consent findings. Of itself, that is with respect to material, as the case law makes it clear that a consent award can be binding for the purposes of issue estoppel. Nevertheless, the applicant submitted, and I accept that at no point did the arbitrator in the previous matter decide, nor has the applicant ever conceded, that there is no primary psychological injury in the present case.
In this matter, the applicant is not seeking a finding of injury in circumstances where the arbitrator in the previous proceedings had determined against him in relation to that injury. There was no finding in the previous proceedings that there be an award for the respondent with respect to any allegation of primary psychological injury.
In this matter, I am of the view that the finding by the arbitrator in the previous proceedings that the applicant suffered from a secondary psychological injury does not preclude the presence of a primary psychological injury being litigated in the present matter. I am, on balance, not persuaded of the presence of a res judicata estoppel.
I am of the view that neither res judicata nor issue estoppel apply in this matter, as the arbitrator’s determinations in the previous matter relating to the nature of the psychological issues and the compensation awarded in the previous matter was not predicated upon the applicant having sustained, or not sustained, a primary psychological injury.

Anshun estoppel and estoppel by conduct

I am not satisfied that an Anshun estoppel or an estoppel by conduct arises in these proceedings.
The applicant did not have the necessary evidence to bring a claim for permanent impairment compensation until such time as a medicolegal opinion existed as to the degree of his whole person impairment. Such a report did not exist at the time of the 2014 proceedings.
Likewise, I am not minded to accept the respondent’s submission that an issue estoppel applies. The applicant in this matter relies upon the respondent’s own independent medical examiner (IME) Dr Ingram in asserting the presence of a primary psychological injury. In my view, it cannot be said that the respondent relied upon the applicant bringing only a secondary psychological injury case in the previous proceedings or is prejudiced by the primary psychological condition now being pressed.
For these reasons, the respondent’s defences in relation to estoppel, res judicata, Anshun estoppel and estoppel by conduct must fail.

FUTURE CONDUCT OF THE MATTER

The estoppels relied upon by the respondent formed the only basis for its defence.
The respondent put forward no medical evidence in support of its position aside from that of A/Prof Robertson whose reports were in evidence in the prior proceedings and relied upon in relation to the issue of secondary psychological injury.
For his part, the applicant has relied upon the medicolegal reports of the respondent’s IME, Dr Ingram, dated 14 June 2018 and 5 July 2018 respectively. Those reports find the applicant suffering a primary psychological injury and a whole person impairment of 15%.
Given the respondent has not lodged any evidence to contradict Dr Ingram’s opinion, I am minded in the circumstances of this case to find that the applicant has sustained a primary psychological injury and as a result of that injury, suffered a whole person impairment of 15%, with a deemed date of injury of 24 November 2021, being the date upon which the applicant’s claim for permanent impairment compensation was made.
In regard to the date of injury, the respondent does not take issue with the date of injury in the proceedings being amended to 24 November 2021.

SUMMARY

For the above reasons, the Commission will make the findings and order set out on page one of the Certificate of Determination.

[2023] NSWPIC 572

30 October 2023