Woolworths Limited v Van Der Mast

[2005] NSWWCCPD 108

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Woolworths Limited v Van Der Mast [2005]

NSWWCCPD 108

APPELLANT:  Woolworths Limited

RESPONDENT:  Dennis Cornelius Van Der Mast

INSURER:Woolworths Limited

FILE NUMBER:  WCC11255-04

DATE OF ARBITRATOR’S DECISION:          15 March 2005

DATE OF APPEAL DECISION:  12 September 2005

SUBJECT MATTER OF DECISION:                Res Judicata & estoppel – relevance of “admissions” in prior proceedings.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant: Bartier Perry

Respondent: PK Simpson & Co

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is

revoked and the following decision substituted:

(1)Award in favour of the Appellant in respect of the claim by the Respondent for loss of use of sexual organs.

(2)No order as to costs of the original proceedings and no order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 22 December 2003, Dennis Cornelius Van Der Mast (“the Respondent”) filed an Application to Resolve a Dispute in the Workers Compensation Commission in Matter No. WCC19931–03 seeking weekly compensation and medical expenses as a result of injuries allegedly sustained to his back, left leg and sexual organs in a fall at work on 5 August 2001 whilst employed by Woolworths Limited (“the Appellant”).

1. That claim, WCC19931–03, proceeded to conciliation/arbitration hearing on 24 May 2004. The matter resolved on that day, with the Respondent agreeing to discontinue proceedings on terms, and a section 66A Agreement reflecting an award in favour of the Respondent in respect of 25% permanent impairment of the back ($15,000.00), 10% permanent loss of efficient use of the left leg at or above the knee ($7,500.00) and section 67 pain and suffering totalling $15,000.00.

1. The claim for lump sum compensation in respect of the back and left leg, whilst not included in the Application, had been made by letter dated 13 October 2003.

1. On 24 February 2004, the Respondent made a claim for lump sum compensation in respect of 20% permanent loss of efficient use of sexual organs.

1. The terms upon which the Respondent resolved his dispute with the Appellant on 24 May 2004 included the following admissions:-

“1.The Applicant [Respondent to the Appeal] admits that the compensation paid to him as settlement of these proceedings represents the extent of his entitlement to compensation as against the First Respondent [the Appellant to the Appeal] to date.

3.The Applicant admits that other than the injuries, the subject of these proceedings, he sustained no other injuries of which he is aware whilst in the employ of the First Respondent.”

1. On 23 July 2004, the Respondent filed an Application to Resolve a Dispute seeking permanent impairment compensation pursuant to section 66 of the Workers Compensation Act, 1987 (“the 1987 Act”) in respect of 20% permanent loss of use of sexual organs ($9,400.00) and further pain and suffering compensation pursuant to section 67 in the sum of $10,000.00.

1. On 13 August 2004, the Appellant filed a reply with lengthy submissions. Briefly, the Appellant claimed that the Respondent’s claim could not be sustained since it involved a loss arising out of the same incident pleaded in Matter No. 19931–03 which had already been settled, and the Respondent’s admissions precluded him from proceeding with this claim.

1. These proceedings (WCC11255–04) were listed for a teleconference before an Arbitrator on 21 February 2005. At the teleconference, the Arbitrator advised the parties that he would determine the matter ‘on the papers’.

1. A Certificate of Determination with reasons issued on 15 March 2005. The Arbitrator determined that the proceedings could be sustained notwithstanding the admissions made by the Respondent in the earlier proceedings. The Arbitrator referred the claim for loss of use of sexual organs to an Approved Medical Specialist, but stayed this order for 28 days to enable any appeal to be filed.

1. On 6 April 2005 the Appellant filed its appeal against the decision of the Arbitrator. Lengthy submissions were included. The grounds of appeal are as follows:

“1.After having found the broad wording of the admissions made by the Respondent may appear to have applied to all his claims to that date, including loss of sexual organs [the] Arbitrator … erred in then finding that the Respondent’s claim for the loss of sexual organs did not form part of the settlement number in Matter No. WCC19931–2003.

2.That [the] Arbitrator … erred in not providing any reasons as to why he applied the objective bystander test to find in accordance with the Respondent’s submissions that the loss of sexual organs was not intended to form part of the prior proceedings.

3.That [the] Arbitrator … erred in finding for the Respondent that his claim for the loss of sexual organs did not form part of a settlement in Matter No. WCC19931–2003 in the absence of a statement from him as to how he construed the admissions in Matter No. WCC19931–2003.

4.In the alternative, that [the Arbitrator’s] … findings were not supported by the evidence or the weight of the evidence”.

1. A ‘Notice of Opposition to Appeal’ was filed by the Respondent on 21 April 2005. In essence, the Respondent submitted that the Arbitrator’s decision to allow the Respondent to proceed with his lump sum claim for loss of use of sexual organs was correct, for a number of reasons set out in its submissions. The Respondent further noted that the Arbitrator’s decision to refer the claim to an AMS may have been incorrect as there was no “medical dispute” as defined in section 319 of the Work Place Injury Management and Workers Compensation Act, 1998 (“the 1998 Act”).

1. The Appellant filed submissions in reply on 2 May 2005 noting that no issue had been taken on that  point in its appeal, and responding to the other issues raised by the Respondent it is Notice of Opposition to Appeal.

LEAVE TO APPEAL

1. The appeal was filed in time, and the amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act. Leave to appeal is granted.

ON THE PAPERS REVIEW

1. By letter to the Registrar of the Commission dated 4 May 2004, the Respondent submitted that “as the employer has raised so many issues in submissions and has made numerous inaccurate assertions, the Worker seeks that a proper hearing of the appeal take place”.  The Appellant has made no submissions on this point.

1. Both parties have provided detailed written submissions including copies of authorities upon which they seek to rely. My task on appeal is concerned with claimed error, of law, fact and/or discretion, not with the hearing of evidence and determination of the matter at first instance.

1. Having carefully read the Arbitrator’s reasons, all of the evidence before him, and the submissions both before the Arbitrator and on appeal, I am satisfied that I have sufficient information within the meaning of the section 354 of the 1998 Act to proceed ‘on the papers’, and that this is the appropriate, and indeed “proper” course in the circumstances.

THE ARBITRATOR’S DETERMINATION

1. The Arbitrator found that (paragraph 22 of the Statement of Reasons):

“The broad wording of the admissions made by the Applicant, that the compensation paid to him represented the extent of his compensation entitlements against the Respondent at the date of his signing on 24 May 2004, and that he sustained no other injuries of which he was aware, may appear to have applied to all his claims to that date including loss of sexual organs … However, the absence from the Agreement to Discontinue Proceedings and Application for Registration of Agreement Under s.66A (section 66A agreement) of any specific mention of the loss of sexual organs, is in stark contrast to the specific mention in the section 66A agreement of the injuries to the back and left leg”.

1. In paragraph 23, the Arbitrator noted the similarities between the present and prior proceedings, i.e., both relied on the date of injury as 5 August 2001, and both included an allegation of loss of sexual organs. He then said:

“The Commission considers that if loss of use of sexual organs had been intended to have formed part of the parties’ agreement to discontinue the proceedings a prudent Respondent’s insurer would have specifically ensured that there was provision for an award in favour of the Respondent in respect of loss of use of sexual organs, rather than rely on the general words of admission. Therefore, applying an objective bystander test, the Commission finds … that the loss of sexual organs was not intended to form part of the prior proceedings”.

1. In paragraph 24, he said: “… the section 66A Agreement in the prior proceedings specifically only referred to injury to the back and left leg. Therefore the Commission finds that the express terms of the section 66A Agreement do not support the Respondent’s submission that the loss of efficient use of the Applicant’s sexual organs was intended by the parties to be part and parcel of that agreement.

1. The Arbitrator concluded that the Respondent was not prevented by his admissions from maintaining the present proceedings.

EVIDENCE, SUBMISSONS AND FINDINGS

The Appellant’s Submissions

1. The real issue from the Appellant’s perspective in this case is whether or not the admissions made by the Respondent on 24 May 2004 preclude him from proceeding with his claim for lump sum compensation for loss of use of sexual organs. The Appellant says that they do. The Respondent admitted that, as at 24 May 2004, the settlement monies he received represented “… the extent of his entitlement to compensation …”

1. The Application in proceedings number WCC19931–03 sought weekly benefits and medical expenses. The date of injury was listed as 5 August 2001. The injury description read “back and left leg, loss of sexual organs and anxiety and/or depression.” No claim for lump sum compensation was made in those proceedings. The medical evidence relied upon by the Respondent in those proceedings, aside from radiological reports, included medico-legal reports from Doctors Stenning and Horsley. Both those doctors, the former a GP in “musculo skeletal medicine”, the latter an “Occupational Physician”, made reference to the Respondent’s difficulties with intercourse and libido. Both doctors made assessments under section 66 of the 1987 Act in respect of impairment of the back and loss of use of the left leg at or above the knee. Neither made an assessment of loss of use of sexual organs.

1. The assessment relied upon by the Respondent was made by Dr Michael Lowy, Sexual Health Physician, in a report dated 9 February 2004, which formed the basis of the Respondent’s claim before the Arbitrator.

1. The parties were nonetheless able to resolve their dispute in proceedings number WCC19931 – 03 at arbitration on 24 May 2004, despite the fact that those proceedings did not include a lump sum claim for either the back or the left leg. Notice had been given of those claims in October 2003, and of the loss of sexual organs in February 2004, well prior to the arbitration on 24 May 2004. As I have said, evidence of sexual ‘difficulties’ had been included in the reports relied upon in October 2003. This is of some significance given the submission by the Respondent that the loss of sexual organs claim was not intended to form part of the prior proceedings.

The Respondent’s Submissions

1. The Respondent submits that because there was no discussion and no agreement on the claim for loss of sexual organs, that claim accordingly did not form part of the earlier proceedings. There is no evidence whether there was discussion or agreement on that aspect of the claim. It was clearly a matter for the Respondent to raise if, in signing the admissions, he failed to discuss or purport to include the claim for loss of use of sexual organs, or alternatively, specifically exclude it from any agreement. It was an ‘injury’ described in the Application. The Respondent submits (paragraph 8(f)) that:

“The admission as to the adequacy of the compensation only related to those heads of compensation that had been agreed ‘to date’ that is, the closed period weekly benefits, section 60 expenses and the section 66 and 67 sums relating to the back and left leg. There was simply no admission to the effect that the Worker’s entitlements under section 66 and 67 had been satisfied in relation to the loss of the efficient use of sexual organs. Even if there had been a relevant admission, it would not have any prohibitive [sic] value and would not have carried any weight whatsoever in the absence of a relevant payment being made by the Appellant. There has been none.”

1. This submission is simply not borne out by any evidence. The parties were on notice of the claim at the date of the arbitration. There is no evidence as to what had been agreed ‘to date’ other than what is contained in the documents before the Arbitrator. The ‘payment’ of any award is irrelevant to the terms of the agreement.

1. The Respondent’s submission that “the admissions are simply statements and constitute one piece of evidence. The statements are not conclusive evidence” flies in the face of the decision of Burke J (as he then was) in Almario v Carrington Constructions Pty Limited [1996] NSW CCR 37 “Almario” to which I will refer later. True, the statement is not necessarily conclusive, but in the absence of any other evidence, the statement is prima facie evidence of the matters contained therein.

The Arbitrator’s Findings and Reasons

1. The Arbitrator, whilst apparently agreeing “the broad wording of the admissions … may appear to have applied to all his claims to that date including loss of sexual organs …” appears to conclude that because no specific mention of that claim was made in either the section 66A Agreement or the agreement to discontinue proceedings it “… was not intended to form part of the prior proceedings”. This he concludes after applying “an objective bystander test.”

1. The interpretation of the admissions was the most crucial aspect of the Arbitrator’s determination, rather than reliance upon or inferences drawn from what was or was not included in the section 66A Agreement or the Agreement to Discontinue. The Arbitrator’s determination suggests that he found in favour of the Respondent on the basis of what he thought the section 66A Agreement should have contained, rather than an examination of what did occur and what agreement was recorded.

1. A section 66A Agreement is simply an agreement by a Worker to receive an amount of compensation pursuant to section 66 and/or section 67 of the 1987 Act. Importantly, sub-section 4A provides that “The Registrar must refuse to register an agreement unless satisfied that the worker received independent legal advice …” In the present case, it seems clear that the parties’ legal representatives went into considerable detail as to the agreement reached on 24 May 2004, and that agreement was signed by the Respondent and his legal representative.

1. There was no statement from the Respondent as to how he construed his admissions in light of the matters raised in the reply filed  by the Appellant. In these circumstances, the Arbitrator was left to interpret the intention of those admissions based on submissions by both parties and what he described as “an objective bystander test”.

1. Such a course is inherently flawed where alternative interpretations are available. As the Appellant pointed out (paragraph 4.12 of submission on appeal), the Arbitrator:

“… provided no reason as to why he applied the objective bystander test to find in accordance with the respondent’s submissions the loss of sexual organs was not intended to form part of the prior proceedings, or, in other words, to why he proceeded to determine this matter on the basis of what he thought the agreement between the parties should have contained … The appellant submits this is of great significance in this matter in circumstances where he also found that on a broad reading of the admissions they may have applied to stop the respondent from bringing the current claim. Put simply, the appellant’s submits that based on this latter finding an objective bystander could have found that the admissions meant the respondent had no entitlement to bring the current claim and, in these circumstances, adequate reasons should have been provided”.

1. I agree that an “objective bystander” could have recorded either conclusion. The Arbitrator must provide sufficient reasons to enable the parties to understand why a particular decision has been made, and particularly so in a situation such as the present case where, in the absence of any statement from the Respondent as to his interpretation or understanding of his admissions, the Arbitrator was faced with competing interpretations.

1. The Appellant has referred to the decision of “Almario” which looked at issues of estoppel and res judicata in light of ‘admissions’ made. His Honour said this (page 41):

“The representations of the worker … are representations voluntarily made. They speak as at the time at which they were made. They are evidentiary of the facts stated therein … such representations are to be accorded proper weight when considering the issues now posed”.

1. His Honour had previously referred to a number of authorities on the issue of res judicata, noting “where a party could and should have litigated a particular matter in a prior action and forbore to do so, then the judgment in that prior matter will, effectively, constitute an adverse finding on that issue and preclude further litigation of it.”

1. In proceedings number WCC1993 - 03, the Respondent had given notice to the Appellant of lump sum claims for the back and legs and, somewhat later, loss of sexual organs. Nothing had been referred to in AMS, and no claim was made in the application before the Arbitrator. However, the “injuries” referred to in the Application specifically included “back and left leg, loss of sexual organs and anxiety and/or depression.”

1. It was open to both parties to resolve the claim in these circumstances on whatever basis they deemed appropriate. As Burke J said in Almario “A worker can be, and almost invariably is, bound by the acts of his lawyers acting within their ostensible authority … similarly, a worker can be, and almost invariably is, bound by his own acts, particularly those done on the advice of his lawyers”.

1. In this case, in my opinion, there can be no clearer statement than “the Applicant admits that the compensation paid to him as settlement of these proceedings (my emphasis) represents the extent of his entitlement to compensation as against the First Respondent to date” and further “Applicant admits that other than the injuries, the subject of these proceedings, he sustained no other injuries of which he is aware whilst in the employ of the First Respondent”. “These proceedings” included claims in respect of injuries to the back, left leg and sexual organs.

1. There is no suggestion that there has been any deterioration or alteration in the Respondent’s condition such as to warrant a fresh appraisal of the Terms of Settlement. Both parties’ legal representatives are experienced practitioners in the Commission and in this case, I regard the Respondent bound by the clear admissions he made. The parties were on notice at the time of the arbitration on 24 May 2004 of a claim for loss of sexual organs. The fact that no settlement amount was agreed upon (unlike the back and the left leg), does not necessarily mean the claim was not considered. There is simply no evidence on this point. What is clear is that the Respondent accepted a settlement on specific terms. The document was signed by the Respondent and his solicitor, in circumstances where both would have been well aware, as at 24 May 2004, of the claim for loss of sexual organs.

1. The admissions in my opinion, are prima facie evidence at the time that the compensation paid to him represented the extent of his entitlement, and that he had suffered no other injuries.

1. Finally, the Respondent’s submission that “the Appellant has simply tried to use legal technicalities and sophistry to deny the Worker his entitlement” is spurious and without proper justification. It is true that proceedings in the Commission are governed by section 354 of the 1998 Act which requires the Commission “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form.” The determination as to the proper interpretation of an agreement signed by the Respondent does involve consideration of legal issues, but the grounds of appeal raised by the Appellant in my view are quite justified and do not rate the description “legal technicalities” nor “sophistry”.

CONCLUSION

1. In my opinion, the Arbitrator has erred in law in finding that the admissions in the prior proceedings did not prevent the Respondent from proceeding with his current claim. There was insufficient evidence to support this finding: the admission document was on the face of it prima facie evidence of fact. If an alternative interpretation of that document was to be applied, there needed to be evidence to support that interpretation.

1. The omission of any reference to the loss of use of sexual organs in the section 66A Agreement does not imply that it was not intended to form part of the proceedings. A section 66A Agreement simply records an agreement between the parties as to the amount of compensation payable to a worker pursuant to section 66 and section 67 of the 1987 Act. It is not appropriate to infer that an exclusion of an item under section 66 leaves a claim open and available to a Worker in circumstances where admissions have been made.

DECISION

1. The decision of the Arbitrator is revoked and the following decision substituted.

(1)Award in favour of the Appellant in respect of the claim by the Respondent for loss of use of sexual organs.

(2)No order as to costs of the original proceedings and no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

12 September 2005

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

ASSOCIATE