Total Steel of Australia Pty Limited v Waretini

[2007] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION

CONSTITUTED BY AN ARBITRATOR

CITATION:Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33

APPELLANT:  Total Steel of Australia Pty Limited

RESPONDENT:  Allen Waretini

INSURER:Employers Mutual NSW Limited

FILE NUMBER:  WCC2895-06

DATE OF ARBITRATOR’S DECISION:          4 August 2006

DATE OF APPEAL DECISION:  2 February 2007

SUBJECT MATTER OF DECISION:                Issue estoppel; respective roles of approved medical specialist and arbitrator.

PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell

HEARING:On the papers

REPRESENTATION:  Appellant:      Stephen Lee Legal

Respondent:   Ron Kramer Associates

ORDERS MADE ON APPEAL:  The decision of the arbitrator dated 4 August 2006 is revoked, and the following decision is made in its place:

“1.      The Respondent Worker is precluded, by the decision of 29 May 2006, from pursuing his claim for non-economic loss for permanent impairment.

2. Award in favour of the Appellant Employer on the Respondent Worker’s claim pursuant to sections 66 and 67 of the Workers Compensation Act 1987.”

No order as to costs of the appeal

BACKGROUND TO THE APPEAL

1. On 22 August 2006 Total Steel of Australia Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 August 2006.

1. The Respondent to the Appeal is Allen Waretini (‘the Respondent Worker’).

1. The Respondent Worker, in his Application to Resolve a Dispute, alleged injury to his lower back occurring on 19 August 2004. The Appellant Employer had voluntarily accepted liability for payment of weekly compensation and medical expenses, up to 6 January 2006, at which point it declined liability. The relief sought by the Respondent Worker was weekly compensation from 6 January 2006 on a continuing basis, the payment of medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act, in respect of 20% whole person impairment, and pain and suffering representing 50% of a most extreme case.

1. The matter was initially listed for arbitration hearing on 23 May 2006. Both parties were legally represented. The Respondent Worker gave oral evidence, and the legal representatives addressed. The Certificate of Determination is dated 29 May 2006, and is accompanied by a statement of the Arbitrator’s reasons. Under the heading ‘Issues in Dispute’ the Arbitrator set out the issues before him, in respect of the weekly benefits claim, and the claim pursuant to section 60. The issues he identified as requiring determination in respect of the weekly benefits claim included:

“Was the Applicant partially incapacitated for work as a result of his injuries? (the 1987 Act s 33) (my emphasis)
For what period was the Applicant partially incapacitated? (the 1987 Act s 40)”

1. The issue the Arbitrator identified as requiring decision on the “Medical Expenses Claim” was:

“Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was reasonably necessary for the compensable injury? (s 60) (my emphasis)”

1. In respect of the claim pursuant to sections 66 and 67, the Arbitrator said:

“10. Under s 65(3) of the 1987 Act, I may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist (‘AMS’).
 11. This matter not (sic) been referred to an AMS and this decision therefore relates only to liability on the threshold questions of injury and section 9A of the 1987 Act.”

1. The Arbitrator, in his Statement of Reasons, proceeded to deal with the evidence before him, both documentary and oral, and with the submissions of the parties. His ‘Findings and Reasons’ are then to be found at paragraphs [41] to [60] of his Statement of Reasons. He dealt with video evidence tendered by the Appellant Employer, which he regarded as significant, and with the competing medical cases. On what he had described as the “threshold questions” the Arbitrator found in the Respondent Worker’s favour on the questions of ‘injury’ and section 9A (‘substantial contributing factor’). In dealing with the claims for weekly compensation and section 60 expenses the Arbitrator found as follows:

“57. I find on the evidence that the Applicant’s back condition arising out of injury with the Respondent on 19 August 2004 resolved before January 2006 and that any symptoms that he now has are not work related. He is now not incapacitated for work as at all (or with restrictions which would not restrict a return to pre-injury duties) on the Respondent’s medical evidence, which I accept.
58. Whatever the Applicant’s back condition is, it is not now related to his injury at work on 19 August 2004.
59. There is insufficient medical evidence to support a finding for payment of past medical expenses, nor is there justification for such a claim. The Applicant’s report from Dr Weisz refers to a need for analgesics and anti-inflammatory medications and muscle strengthening exercises. I find that these treatments are related to a non-work related condition.”

1. Following from these findings, the Arbitrator’s decision, at paragraph [62] of his Statement of Reasons, comprises awards in favour of the Appellant Employer on the claims for weekly compensation and section 60 expenses. As regards the claim pursuant to sections 66 and 67, it is ordered “Permanent impairment assessment will take place by referral to an AMS selected by the Registrar.”

1. This decision of 29 May 2006 was not the subject of appeal by either party.

1. The matter was listed for teleconference on 30 June 2006, to deal with the appropriateness of the order referring the lump sum claim to an AMS, given the findings on causation already made in the decision of 29 May 2006. The Arbitrator’s email memorandum of 3 August 2006, describing what transpired at the teleconference, states:

“Teleconference revealed threshold issues arising out of my decision on partial incapacity relative to permanent impairment entitlement. Parties agree that I decide the matter on the papers, involving considerable legal argument made by written submissions.” 

1. The parties made written submissions to the arbitrator, on the question of whether, having regard to the findings made by the arbitrator in dealing with the weekly compensation claim and the claim pursuant to section 60, it was appropriate for the referral to an approved medical specialist to proceed.

1. The Appellant Employer’s submissions were lodged under cover of letter dated 10 July 2006. The Appellant Employer submitted that, on the findings already made on ‘causation’, it was an impossibility the Respondent Worker could have a permanent impairment resulting from the employment injury which had been found. Reference was made to a line of authority in Presidential decisions of the Commission, dealing with the respective roles of the Commission and an AMS. It was submitted that, although a medical assessment certificate (‘MAC’) issued by an AMS is binding as regards quantum of a claim pursuant to section 66, threshold issues (including ‘causation’) are matters for the Commission to decide. As the ‘causation’ issue had already been decided in a manner adverse to the position of the Respondent Worker, any contrary decision by an AMS (if it resulted in an award in the Respondent Worker’s favour), would lead to two inconsistent decisions in the one case. It was submitted the finding on ‘causation’ made on 29 May 2006 gave rise to an issue estoppel, which now bound the parties. Consequently it was submitted there was no longer any ‘dispute’ between the parties to be referred to an AMS.

1. The Respondent Worker’s submissions were lodged under cover of letter dated 17 July 2006. It was submitted the issue of lump sum entitlement was separate to the issue of entitlement to weekly compensation and section 60 expenses, already dealt with. It was submitted that, the arbitrator having decided certain threshold questions in the Respondent Worker’s favour (‘injury’ and ‘substantial contributing factor’), there was an issue to appropriately be put to an AMS to determine quantum pursuant to section 66. It was submitted there was no issue estoppel which prevented this, and indeed the only relevant issue estoppel arising from the decision of 29 May 2006, going to lump sum entitlement, was that in the Respondent Worker’s favour on ‘injury’ and ‘substantial contributing factor’.

THE DECISION UNDER REVIEW

1. The Arbitrator delivered a further decision on 4 August 2006, dealing with the question of whether the Respondent Worker was entitled to pursue his claim for lump sum compensation, notwithstanding the findings on causation contained in the decision of 29 May 2006. This is the decision from which the current appeal is brought. The Certificate of Determination records the arbitrator’s orders as follows:

“1. The Applicant is entitled to pursue his claim for non-economic loss for permanent impairment.

2. Permanent impairment is to be assessed by an AMS appointed by the Registrar.”

1. The Arbitrator referred to the competing medical cases, and said “There is clearly a medical dispute on the medical evidence referred to above, as to whether the Applicant in fact is found to have no permanent impairment or a quantifiable permanent impairment as assessed by the statutorily prescribed assessor of that issue, the AMS.” (at [22]). He also stated “To suggest that in every case where a worker’s incapacity ceases, whether partial or total, there is therefore a denial of entitlement to claim permanent impairment is contrary to the broad entitlement provided in the 1987 and 1988 (sic) Acts.” (at [25]). Dealing with the Appellant Employer’s argument based on issue estoppel, the Arbitrator said:

“28. My decision on incapacity addressed completely different issues, particularly whether the original injury continued to give rise to work related injury.
29. Injury on 19 August 2004 was found in favour of the Applicant.
30. No decision was given on the Applicant’s permanent impairment, because I have no jurisdiction to do so, nor did I make any finding in relation to the issue of permanent impairment related to injury in January 2006.
31. Therefore there can be no issue estoppel, as the issue was not dealt with or decided.
32. Acceptance of the Respondent’s medical evidence was related only to the issue of incapacity, not on permanent impairment.
33. There is no conflict in my view due to the incapacity finding.
34. A finding by the AMS on permanent impairment will be an independent finding based on his statutory obligations arising out of a finding by me, and the existence of a medical dispute between the parties.”

ISSUES IN DISPUTE

1. The Appellant Employer, in this appeal, largely raises the same arguments originally agitated by it prior to the decision of 4 August 2006:

(i)It is said any result favourable to the Respondent Worker on the lump sum claim, flowing from a MAC, would be inconsistent with the arbitrator’s findings on causation in the decision of 29 May 2006. There would be two inconsistent decisions on the same factual issue in the same case.

(ii)It is said that, having found there was no causal relationship between any ongoing symptoms in the Respondent Worker’s back and the employment injury, there was no longer any dispute to require referral to an AMS; there was a positive finding which precluded the existence of any permanent impairment caused by the employment injury.

(iii)It is submitted the finding made by the arbitrator on ‘causation’, in dealing with the ‘incapacity’ question, was legally indispensable to the decision of 29 May 2006, and created an issue estoppel binding on the parties, and fatal to the Respondent Worker’s claim for lump sum compensation.

1. The Respondent Worker’s opposition to the appeal is based upon the following propositions:

(i)The decision of 29 May 2006 was not appealed by any party. The   arbitrator, having made that decision, was functus officio, “his jurisdiction (to that point in time) had been fully exercised”. Accordingly it was “not open to him to proceed and give a further decision as set out in the August determination”. There is no indication the arbitrator was exercising the Commission’s reconsideration power under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. Effectively it is argued the decision of 4 August 2006 was a nullity, and the decision of 29 May 2006, which was never appealed, remains in force, including its order for referral of the lump sum claim to an AMS.

(ii)Entitlement to permanent impairment compensation arises at date of injury (Lourdes House Hospital v Wheeler [1993] 13 NSWCCR 495). The arbitrator having found ‘injury’ and ‘substantial contributing factor’, there remained an issue of quantum requiring referral to an AMS, notwithstanding the finding on ‘causation’ on the incapacity question.

(iii)The original decision of 29 May 2006 did not contain a final decision which created an issue estoppel for the purposes of the lump sum claim. This was because the lump sum claim  had not been finally determined, as the arbitrator had no power to determine it, in the absence of the matter being referred to an AMS. The 29 May 2006 decision could not be final until the permanent impairment had been determined by an AMS.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The amount of compensation in issue, representing the Respondent Worker’s claim pursuant to sections 66 and 67, significantly exceeds the sum of $5,000.00 prescribed in section 352(2). Whilst no sum of compensation has actually been awarded, the decision appealed against is one which has the potential to put in issue the amount of compensation claimed: Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7; Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5. The threshold test in section 352(2) is satisfied.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

DISCUSSION AND FINDINGS

Was the Arbitrator functus officio?

1. It is convenient initially to deal with the argument of the Respondent Worker that the arbitrator was functus officio after giving his decision of 29 May 2006, and accordingly the decision the subject of this appeal (that of 4 August 2006) is a nullity. This argument, if correct, would dispose of the appeal.

1. The Application to Resolve a Dispute was one seeking weekly compensation, expenses pursuant to section 60, and lump sum compensation. The decision of 29 May 2006 dealt with the first two of these heads of claim, but not the third. Whatever may arguably have flowed from the finding on causation in that decision, the arbitrator had not entered any award on the lump sum claim. Thus the proceedings before the arbitrator remained alive, in that part of the relief claimed by the Respondent Worker had not been the subject of an award as at 4 August 2006.

1. If an AMS had examined the Respondent Worker pursuant to the referral in the decision of 29 May 2006, and a MAC had issued as a consequence, it would still have been necessary for the arbitrator to enter an appropriate award, consistent with the evidence overall, including the MAC. The Appellant Employer has referred in its submissions to a line of authority in Presidential decisions, dealing with the respective functions of the Commission, constituted by an arbitrator, and an AMS which issues a binding MAC. In Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131 I reviewed a number of these decisions. These decisions conclude that, although a MAC may be binding as regards the quantum of a permanent impairment or loss pursuant to section 66, threshold questions such as ‘injury’, ‘substantial contributing factor’, and whether there is a causal link between the impairment or loss, and the employment injury, remain questions for the Commission, rather than questions on which the MAC is conclusive: Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) at [48]. In Joppa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 Fleming DP said:

“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of a matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural evidence, the filing of evidence, and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.” (at [27])

1. Accordingly, the arbitrator cannot be regarded as functus following issue of the Certificate of Determination dated 29 May 2006. The matter remained properly before the arbitrator, until he had made orders and awards disposing of the subject matter of the proceedings. The decision of 4 August 2006 revisited that part of the subject matter which had not been the subject of an award in the decision of 29 May 2006.

1. In addition, the Commission has a reconsideration power pursuant to section 350(3) of the 1998 Act. On the arbitration hearing on 23 May 2006, the Respondent Worker’s counsel submitted there should be an ongoing award in favour of the Respondent Worker, on the basis there was ongoing incapacity resulting from the relevant employment injury. The Appellant Employer’s counsel submitted the consequences of the employment injury had ceased prior to the termination of voluntary liability on 6 January 2006 (see T18 to 19). Both parties confined their submissions to the questions of ‘injury’, ‘substantial continuing factor’, the causal link (or lack of it) between the employment injury and ongoing symptoms, and quantum of any weekly entitlement. Neither party addressed the Arbitrator on the consequences, for the lump sum claim, of a finding that the causal link between the employment injury and the Respondent Worker’s back symptoms had ceased, prior to 6 January 2006.

1. Against this background, the Arbitrator entertained written submissions by both parties, on the further conduct of the lump sum claim, prior to delivering his decision of 4 August 2006. This may reasonably be regarded as an exercise of the reconsideration power pursuant to section 350(3) of the 1998 Act. There is no specific form or procedure to be utilised in the Commission, when the reconsideration power is engaged. There is a helpful review of the authorities, relevant to the nature of the reconsideration power, in the decision of Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (‘Samuel’) at [38] to [58]. The power typically is used when further evidence becomes available subsequent to a decision, which could not, with reasonable diligence, have been available at the time of the original decision. However the reconsideration power is not necessarily restricted to such circumstances. It has been noted it is a broad power, and one which may be used to do justice between the parties according to the substantial merits and justice of a case: Hardaker v Wright & Bruce Pty Limited [1962] SR (NSW) 244; Hilliger v Hilliger (1952) 52 SR (NSW) 105; Samuel. In the current matter, no objection was raised at the time, to the parties having a right to make further written submissions, prior to the arbitrator dealing with the appropriateness of his original referral to an AMS, and considering the effect of his earlier fact finding on the status of the lump sum claim. Thus, while the revisiting of orders in the absence of further evidence is not a practice to be encouraged, the further decision of 4 August 2006 can properly be understood as an exercise by the Commission of its power of reconsideration, in circumstances where the parties had not previously addressed on the relevant point, and no objection to the course was raised by either party. 

1. A further matter to be noted is that the argument now raised by the Respondent Worker, that the decision of 4 August 2006 was a nullity, as the arbitrator was functus when it was made, was not raised in the Respondent Worker’s written submissions to the arbitrator, prior to the decision of 4 August 2006. It would be inappropriate to permit the Respondent Worker to rely upon this argument on appeal, when it is a point which was not raised by the Respondent Worker in his submissions to the arbitrator, prior to the decision of 4 August 2006: Department of Corrective Services v Evans [2005] NSWWCCPD 58; K-Mart Australia Limited v Duggan [2006] NSWWCCPD 137.   

1. Accordingly, I do not accept the Respondent Worker’s argument that the decision of 4 August 2006 was a nullity, on the basis the Arbitrator was functus at the time it was made.

Issue Estoppel

1. Clearly (and correctly) the Arbitrator, in his decision of 29 May 2006, regarded the causal link between the pleaded work injury, and the Respondent Worker’s back symptoms subsequent to 6 January 2006, as a relevant issue. This was an issue raised on the pleadings, and an issue on which the parties had competing medical cases. The arbitrator stated, at [8] and [9] of his reasons, the issues requiring determination by him, in considering the Respondent Worker’s entitlement to weekly compensation and section 60 expenses. Necessarily causation was one of the issues he described as requiring decision. Quite obviously, the Respondent Worker could only have an entitlement to such compensation if the back symptoms from which he suffered were caused by the relevant work injury.

1. The Arbitrator made unequivocal findings on this causation issue, contrary to the position of the Respondent Worker, which I have quoted at [7] above.

1. In Blair v Curran [1939] 62 CLR 464 Dixon J said:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.” (at 531-532).

1. The findings of fact made by the arbitrator on the causation issue were clearly legally indispensable to the conclusion he reached, in determining the Respondent Worker’s claims for weekly payments and section 60 expenses. There is a positive finding the Respondent Worker’s “back condition arising out of injury with the (Appellant Employer) on 19 August 2004 resolved before January 2006 and that any symptoms that he now has are not work related”. There is a finding “Whatever the (Respondent Worker’s) back condition is, it is not now related to his injury at work on 19 August 2004”. In dealing with the claim for medical and related treatment expenses pursuant to section 60, there is a finding his need for treatment is “related to a non-work related condition”.

1. In his decision of 4 August 2006 the Arbitrator, in passages of his reasons quoted at [15] above, has sought to quarantine the finding on causation he has made in relation to the weekly claim and the claim pursuant to section 60, from the issue of causation in respect of the claim for lump sum compensation. The finding is not susceptible to being quarantined in this fashion. The Appellant Employer is correct that, if the referral to an AMS proceeded, and a MAC issued with a conclusion on causation favourable to the Respondent Worker, and an award pursuant to section 66 consistent with the MAC was made, this would result in two inconsistent findings of the Commission on the same issue, in the one case.

1. In Bruce v Grocon Limited (1995) 11 NSWCCR 247 at 257 Neilson J quotes from the judgment of Gibbs CJ, Mason & Aicken JJ in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 (‘Anshun’):

“It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.”

And:

“By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”

1. The argument in the current matter involves issue estoppel, rather than Anshun estoppel. However clearly, as a matter of general principle, it would be inappropriate for a single set of proceedings to produce two competing factual findings, blatantly inconsistent with each other, on the same issue.

1. The Arbitrator, in his Statement of Reasons for the 4 August 2006 decision, dealing with the Appellant Employer’s argument there was an issue estoppel flowing from the decision of 29 May 2006, which precluded the Respondent Worker succeeding on the lump sum claim, said:

“25. To suggest that in every case where a worker’s incapacity ceases, whether partial or total, there is therefore a denial of entitlement to claim permanent impairment is contrary to the broad entitlement provided in the 1987 and 1988 (sic) Acts.
26. The only decision for an arbitrator in a claim for permanent impairment is whether the applicant satisfies the statutory criteria for a claim to be made, namely, injury (and that is satisfied) and a medical dispute (which is also satisfied on the facts recited above).
27. Injury in an incapacity argument can have a long history, as in this case. Permanent impairment is about the ‘loss of a thing’ (to use the old Table of Disabilities analogy). There is either a loss or there isn’t, and only an AMS can assess that, notwithstanding any incapacity finding. They are not related for assessment purposes. The Commission has determined the incapacity issue, and there are no disentitling factors which should deny this Applicant his entitlement to be assessed for permanent impairment.
28. My decision on incapacity addressed completely different issues, particularly whether the original injury continued to give rise to work related injury.
29. Injury on 19 August 2004 was found in favour of the Applicant.
30. No decision was given on the Applicant’s permanent impairment, because I have no jurisdiction to do so, nor did I make any finding in relation to the issue of permanent impairment related to injury in January 2006.
31. Therefore there can be no issue estoppel, as the issue was not dealt with or decided.”

1. To say that a worker can fail in a claim for weekly compensation, and yet still potentially have an entitlement to lump sum compensation for permanent impairment, is clearly true. It will depend on the basis for the worker’s failure in his weekly claim. A worker may be found to have no entitlement to weekly compensation as there is no economic incapacity, and yet still have a compensable permanent impairment. However if, for example, a worker fails in his weekly claim because there is a finding he has not suffered an injury, or the effects of employment injury have ceased, such a finding is inconsistent with the existence of a compensable permanent impairment caused by the alleged employment injury.

1. The finding made by the arbitrator on causation, in dealing with the weekly claim, was open to him on the evidence, and was an issue he was obliged to deal with in deciding whether the Respondent Worker had an entitlement to weekly compensation and section 60 expenses. A decision on the whether employment injury caused, in the relevant sense, the back symptoms of which the Respondent Worker complained, was a matter for decision by the Commission constituted by the arbitrator, rather than being a matter purely for an AMS to decide: Connor. This finding having been made, it is clearly impossible, consistent with the finding, for the Respondent Worker to have a permanent impairment which results from the pleaded employment injury. There has already been a finding that the effects of the employment injury had ceased by the time voluntary liability was withdrawn by the Appellant Employer on 6 January 2006. The Appellant Employer’s contention on this point is sound. After the finding on causation was made, there was no ‘dispute’ to be referred to an AMS. The ‘dispute’ had been resolved by the finding on causation.

Conclusion

1. Whether the Respondent Worker’s back symptoms were caused by the employment injury was a matter for determination by the Arbitrator, not an AMS. Indeed the arbitrator dealt with the issue before the matter had been referred to an AMS.

1. The Arbitrator’s finding on causation resolved, amongst other things, the question of whether there was any permanent impairment resulting from the employment injury he had found. Accordingly, after the finding on causation was made, there was no dispute to be referred to an AMS.

1. The finding on causation made by the arbitrator was a legally indispensable to the conclusion he reached, in entering an award in the Appellant Employer’s favour on the claims for weekly compensation and section 60 expenses. It gave rise to an issue estoppel between the parties, which binds them in relation to the claim for lump sum compensation, pursuant to sections 66 and 67.

DECISION

1. The decision of the arbitrator dated 4 August 2006 is revoked, and the following decision is made in its place:

“1.The Respondent Worker is precluded, by the decision of 29 May 2006, from pursuing his claim for non-economic loss for permanent impairment.

2.Award in favour of the Appellant Employer on the Respondent Worker’s claim pursuant to sections 66 and 67 of the Workers Compensation Act 1987.”

COSTS

1. No order as to costs of the appeal.

Michael Snell

Acting Deputy President  

2 February 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE