WorkCover New South Wales v Evans
[2009] NSWWCCPD 95
•11 August 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: WorkCover New South Wales v Evans (2009) 7 DDCR 231 | |||||
| CITATION: | WorkCover New South Wales v Evans [2009] NSWWCCPD 95 | ||||
| APPELLANT: | WorkCover New South Wales | ||||
| RESPONDENT: | Craig Anthony Evans | ||||
| INSURER: | WorkCover New South Wales | ||||
| FILE NUMBER: | A1-9527/08 | ||||
| ARBITRATOR: | Ms E Grotte | ||||
| DATE OF ARBITRATOR’S DECISION: | 9 March 2009 | ||||
| DATE OF APPEAL DECISION: | 11 August 2009 | ||||
| SUBJECT MATTER OF DECISION: | Review of weekly payment pursuant to section 55 of the Workers Compensation Act 1987 – change in financial circumstances; issue estoppel and referral of lump sum claims to Approved Medical Specialist – application of Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192 where causation decided by Arbitrator in determining claims other than lump sum claims. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Taylor & Scott | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 9 March 2009 is varied, by revoking paragraph two, and substituting in its place: “2. The following is remitted to the Registrar for referral to an AMS for assessment of the degree of permanent loss: - permanent loss of efficient use of the right leg at or above the knee resulting from the date of injury of 5 October 2001.” | ||||
| The balance of the decision dated 9 March 2009 is confirmed. | |||||
| The Appellant is to pay the Respondent’s costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 8 April 2009 WorkCover New South Wales (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 March 2009.
The Respondent to the Appeal is Craig Anthony Evans (‘the Respondent’).
The Respondent, who is now 34 years of age, commenced working with Jeremy Adams trading as JWA Furniture Restorations on about 1 January 2000, as an apprentice cabinet maker. He suffered injuries in the course of such employment on 26 September 2001 and 5 October 2001.
His statement dated 22 May 2008 indicates that in the first of these incidents a gust of wind caught a sheet of material he was carrying, forcing him against a wall. He said he felt pain in his lower and mid back, right shoulder and neck. He did not actually take time off after this incident, although said he carried out lighter work and reported the injury. On 5 October 2001 he was assisting in carrying a large television cabinet into a residence, when he tripped and fell. He said he felt pain in the whole of his spine from the lower back to the neck, together with the right leg and right shoulder. He ceased working from 12 October 2001.
His employer was uninsured, and his claim for compensation was met by the Appellant. The Appellant declined liability for weekly compensation from 6 August 2002. The Respondent instituted proceedings (matter number 4626-02), which were determined by an Arbitrator on 11 July 2003.
The Arbitrator found the “incident alleged by the Applicant on 26th September 2001 did occur”, but that “any injury sustained by Mr Evans on 26 September 2001 was minor and of a transient nature”. Additionally the Arbitrator found the Respondent suffered injury on 5 October 2001, involving aggravation of “a pre-existing spondylolisthesis and a pre-existing pars defect of the L5/S1”. She found the effects of that aggravation had ceased by 1 July 2002. She found the same incident constituted “a minor incident in respect of the (right) knee”. She did not accept that incident had caused “a shoulder injury of any consequence. If he did have shoulder pain it is more likely to be related to the back injury.”
The Arbitrator found the Respondent had been totally incapacitated up to 30 June 2002, and partially incapacitated thereafter. She found the Respondent’s probable earnings if not for injury were $450.00 per week (slightly in excess of the award rate for a fourth year apprentice furniture maker). She found his ability to earn in some suitable employment was in a sum of $225.00 per week. An award was entered pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $225.00 per week from 7 August 2002, on a continuing basis. It appears her finding of ongoing partial incapacity was based upon “the level of medication and fear avoidance behaviour coupled with a poor pain response”. This would be generally consistent with her findings (described in the preceding paragraph) regarding the minor or temporary nature of the orthopaedic injuries. It would also be consistent with the Arbitrator’s order that the Respondent “would not be entitled to an ongoing award of section 60 expenses”, after which she said “further treatment with Mr Mangioni (a psychologist) or a similar therapist in consultation with his treating General Practitioner is reasonable”.
Neither party appealed the decision dated 11 July 2003.
Subsequent to the original award, the Respondent completed a Certificate in Architectural Drafting, and a Diploma of Architectural Technology. He said the Appellant paid for these studies. The Certificate course commenced on 20 July 2004 and was of one year duration. It was followed by the Diploma course, also of one year duration. The Respondent worked with Media Tree Australia Pty Ltd from 11 February 2005, earning $4,046.00 in the year ending 30 June 2006, and $6,082.00 in the year ending 30 June 2006. A history recorded by Dr Hitchen on 3 June 2008 indicates this was part-time office work two hours per day, while the Respondent was retraining as a draftsman, from 2004 to 2006.
The Respondent obtained employment with Balustrades Sales and Management Pty Ltd from 27 September 2006 to 28 January 2007, and with Harvey Blinds Pty Ltd thereafter. These employments yielded income that has been calculated as averaging $997.07 per week from 27 September 2006 to 28 January 2007, and $1,397.57 per week from 5 February 2007 to 30 June 2007. The work as at 2008 was that of a project manager, according to the history obtained by Dr Katelaris on 29 May 2008.
The Respondent consented to termination of the award. The Appellant instituted proceedings seeking an order pursuant to section 58 of the 1987 Act, for repayment by the Respondent of weekly benefits paid subsequent to 6 January 2007. Those proceedings were determined on 17 July 2008. It was ordered the Respondent refund all weekly compensation payments made to him from 6 January 2007 to 17 December 2007 (the date when the Respondent submitted a declaration to the Appellant setting out his earnings). The Arbitrator’s reasons indicate the Respondent sought to include in those proceedings a claim for additional weekly compensation from 11 July 2004 to 26 September 2006, and a claim for lump sums pursuant to sections 66 and 67. The Arbitrator declined to permit these additional heads of claim to be raised in those proceedings, applying section 289A of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as they were previously unnotified claims.
An Application to Resolve a Dispute in the current proceedings was registered on 28 November 2008. It claimed an increase in the Respondent’s weekly entitlement from 31 July 2004 to 26 September 2006, pursuant to section 55 of the 1987 Act. It also claimed lump sum compensation pursuant to sections 66 and 67 in respect of the back, neck, right shoulder, right leg, sexual function, and psychological injury. The claim for lump sums in respect of psychological injury was not pressed, as there was no such entitlement available at the time of the injuries relied upon.
An arbitration hearing was held on 13 February 2009. Both parties were represented by counsel. No oral evidence was adduced. The Arbitrator heard addresses, and reserved her decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 March 2009 records the Arbitrator’s orders as follows:
“1. Award in favour of the Applicant as follows pursuant to section 40 of the 1987 Act:
$323 per week for the period 31 July 2004 to 30 September 2004,
$328.90 per week for the period 1 October 2004 to 31 March 2005,
$334.10 per week for the period 1 April 2005 to30 September 2005,
$340.90 per week for the period 1 October 2005 to 31 March 2006,
$347.90 per week for the period 1 April 2006 to 26 September 2006.
Credit to be given to (sic) payments already made.
2. The following is remitted to the Registrar for referral to an AMS for assessment of the degree of permanent impairment:
(i)permanent impairment of the back and loss of sexual organs resulting from the date of injury of 26 September 2001; and
(ii)permanent impairment of the back, loss of sexual organs and permanent loss of efficient use of the right leg at or above the knee resulting from the date of injury of 5 October 2001.
3. The Respondent to pay the Applicant’s costs as agreed or assessed. I am satisfied that this matter should be certified as complex as the matter included two prior decisions, estoppel, injury, comparables and change of circumstances. A significant amount of extra work was required by both parties. I am satisfied that an uplift of 30% is justified applicable to both parties.”
The Certificate of Determination was accompanied by eight pages of reasons (‘the reasons’).
ISSUES IN DISPUTE
The following issues are raised by the Appellant in this appeal:
(i)Whether the Arbitrator erred in her assessment of the lower limb of the section 40 equation (section 40(2)(b)), in that the Respondent’s ability to earn in some suitable employment would have increased from the figure found by the original Arbitrator in the decision dated 11 July 2003.
(ii)Whether the Arbitrator erred in referring the lump sum claims in respect of the back and sexual organs to an AMS for assessment, given the finding made by the original Arbitrator regarding the consequences of the back injuries.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The quantum of the weekly award appealed against significantly exceeds the sum of $5,000.00 prescribed in s 352(2)(a), and the whole of that sum is appealed against. The Respondent concedes that s 352(2) is satisfied.
I grant leave to appeal.
DISCUSSION AND FINDINGS
The Nature of the Review Process
A number of appellate decisions, going to the nature of the process of ‘review’ pursuant to section 352 of the 1998 Act, were reviewed in Sapina v Coles Myer Limited [2009] NSWCA 71. It is necessary that I apply the principles described in those decisions, in conducting this appeal. It is necessary that I conduct a merits based review, in deciding whether the original decision is wrong, and what is the true and correct view: State Transit Authority of NSW v Chemler (2007) 5 DDCR 286 (‘Chemler’).
The Respondent’s Ability to Earn (Section 40(2)(b) of the 1987 Act)
The basis on which the Respondent’s application for review of his weekly compensation was brought, was that his probable earnings if not for injury (section 40(2)(a)) would have increased from time to time, beyond the figure of $450.00 per week found by the original Arbitrator in 2003 (see T 8.35). It was submitted his apprenticeship would have concluded by 2004, and his probable earnings would then have been as a qualified tradesman (T10). This is generally consistent with the history recorded by Dr Patrick on 26 July 2002, that the Respondent had been 15 months away from finishing his apprenticeship.
The Arbitrator accepted this argument, and her findings of probable earnings if not for injury are set out at [9] of the reasons, ranging from $616.00 per week as at 31 July 2004, increasing to $653.51 by 26 September 2006. This approach is consistent with authority (see Johnston v Commissioner for Railways (1973) 128 CLR 632; Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530). No challenge is made, on this appeal, to the Arbitrator’s determination of probable earnings if not for injury. It is clear that this change, in the level of probable earnings, constituted a change of circumstances, providing a basis for “review” pursuant to section 55 of the 1987 Act. It is not suggested otherwise.
At the arbitration hearing the Appellant submitted that, if the Respondent sought that the award be increased, it was necessary that the Arbitrator consider not only the changed circumstance of the probable earnings, but arrive at an award pursuant to section 40 during the relevant period, applying the steps set out in Mitchell v Central West Health Service(1997) 14 NSWCCR 526 (‘Mitchell’). That is, it was necessary inter alia that the Arbitrator also assess the lower limb of the section 40 equation (section 40(2)(b)). She could not simply apply the figure of $225.00, found by the original Arbitrator to represent ability to earn as at 11 July 2003.
Counsel for the Appellant made submissions going to the Respondent’s ability to earn, between 31 July 2004 and 26 September 2006, based upon various aspects of the Respondent’s employment and work history that predated the relevant injuries (and the original decision). These matters were referred to in a Vocational Assessment report dated 22 September 2003, that post-dated the original decision. The Appellant submitted the Respondent’s ability to earn should be assessed at a figure higher than the sum of $225.00 per week found by the original Arbitrator.
The Respondent’s counsel submitted none of the matters relevant to ability to earn had changed, between the decision on 11 July 2003, and July 2004 (when the claim for an increased weekly payment commenced).
The Arbitrator accepted the submission of the Appellant, that it was necessary that she apply the steps in Mitchell, in determining an award between 31 July 2004 and 26 September 2006. She noted those steps, and noted the provisions of section 40(3) and section 43A(1) dealing with ‘ability to earn’ and ‘suitable employment’. She noted the matters considered by the original Arbitrator, when she determined the Respondent’s ability to earn, at 11 July 2003. She then concluded:
“I agree with the submissions made on behalf of the applicant that as at July 2004 none of these factors had changed except that he was one year older, still without qualifications and still partially restricted. I am satisfied that as at July 2004 until September 2006 Mr Evans’ ability to earn in some suitable employment was as found by Arbitrator Doyle who had properly considered all relevant factors in accordance with the requirements of the legislation, that is $225 per week.”
On this appeal, the Appellant submits it was “unrealistic” that the original assessment of ability to earn was “consistently applied through to 26 September 2006”. It is submitted the Respondent was “a willing and capable individual who put himself through retraining and education”. It is submitted the Respondent “had significant capacity to earn during the period of claim”. It is said “The Arbitrator omitted to give any reasoning for not finding the Applicant’s capacity to have changed within the period of claim.” It is a factual argument, that the evidence overall supported a higher assessment of the Respondent’s ability to earn than was made by the Arbitrator.
Section 55 of the 1987 Act provides:
“55. Review of weekly payments
Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.
(2) On any such review:
(a) the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment), and
(b) the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.
(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.
On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such an amount as would have been awarded if the worker had, at the time of the injury, been earning the wage or salary which the worker would probably have been earning, at the date of the review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
A review under this section shall be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.”
The nature of a review pursuant to section 55 was considered by the Court of Appeal in George Weston Foods Limited v Goldsmith (1998) 17 NSWCCR 253. Sheller JA (with whom Giles JA and Fitzgerald A-JA agreed) at [11] said:
“Judge Davidson had made findings about the relevant circumstances at the time of his award and nothing in s 55 allowed those findings to be questioned. The matter for the Commissioner was the straightforward one of whether there had been any change in those circumstances and, if there had, whether that change justified a review of the weekly payment of compensation.”
And at [13]:
“The starting point was an unqualified acceptance of Judge Davidson’s findings about the capacity of the Respondent at the time he gave his decision, followed by consideration of whether at the time the Commissioner was dealing with the matter the evidence showed that the circumstances, in this case the Respondent’s incapacity, had changed.”
Although the Vocational Assessment report of 22 September 2003 post-dated the original decision, the matters in it, about which the Appellant addressed at the arbitration hearing, went to what constituted “suitable employment” for the Respondent. Matters going to the Respondent’s education, skills and work experience were raised. These were relevant to identifying “suitable employment” as defined in section 43A(1), which in turn was relevant to identifying “suitable employment” for the purposes of section 40(2)(b), applying section 40(3).
When addressing on this material, the Appellant’s counsel referred inter alia to the Respondent having previously completed an apprenticeship as an electrician, and then having worked in that field. He referred to the Respondent having worked at one point of his career as a supervisor in charge of 24 people. He said “This, of course, wasn’t available to the Arbitrator at the time, but we now know that this is the history that he has provided…” (at T27.25). When he commenced to address on ‘ability to earn’ (at T26.50) the Appellant’s counsel said:
“This is a matter, with great respect to the learned Arbitrator previously, to properly consider the Central West v Mitchell test, as she was required to do, and as you will be required to do in due course, because what you need to do is make a determination of the applicant’s capacity to earn in the open labour market for jobs readily available or reasonably available to him that would have been in this period of time from 2004 to 2006, and historically the applicant has demonstrated himself to be a man with some significant capacity.”
As the submission was developed, the Appellant’s counsel at T28.15 said:
“Now, as I say, with great respect to the former Arbitrator, and perhaps she didn’t know how to deal with that material before her, but you do, and when you come to make an assessment of an applicant who was working part-time and attending TAFE full-time to pass these courses in ’04, ’05 and ’06, I would submit to you that his capacity to work compared with the open labour market would have exceeded $500 a week over that period of time…”
The Appellant’s counsel, quite properly, did not submit the original finding on this aspect was wrong. He confined his submissions to the period of the current claim, which of course post-dated the original finding. However it was inherent in the submissions, that the Arbitrator in the current proceedings should engage in a fresh determination of the Respondent’s ability to earn, including by reference to aspects of the Respondent’s educational and work history that pre-dated the original determination, notwithstanding they are described in a report that post-dates the original decision. The submissions did not confine themselves to the extent to which the evidence established a change in ability to earn, since the earlier finding.
The submissions on the appeal are more restricted. They refer to the Respondent’s attendance at his TAFE courses, his stated interest in 2003 in becoming a valuer, and his commencement of a physical condition program. It is submitted these matters demonstrated an “increasing earning capacity throughout his period of claim”.
In my view the Arbitrator’s approach to this issue was correct. She accepted, as she was obliged to, the finding of the original Arbitrator on the issue. She then considered whether the evidence established there had been an increase in ability to earn during the period of claim, subsequent to the earlier decision. She decided there had not. I also agree with the Arbitrator’s factual conclusion, on this issue.
The vocational assessment report of Access Integrated Health dated 22 September 2003 basically concerned itself with possible avenues of retraining. It stated the Respondent’s first preference was to become a draftsman, his second was the real estate field (as a valuer or in real estate sales). It said he had recently commenced a physical conditioning program, that he said he enjoyed, and that was making physical improvements. The report said it was “appropriate that Mr Evans rehabilitation support his entry into suitable training”. The report identified courses in architectural technology (that provide architectural drafting skills) as being appropriate. The next rehabilitation report is dated 13 February 2004. It reported the Respondent had failed to gain entry to the architectural drafting course he applied for, but would reapply in second semester. The next report (21 May 2004) said the matter had been discussed with a representative of WorkCover, and it was agreed the Respondent should “continue with the goal of Architectural Drafting”. It was noted the Respondent had reapplied for a suitable course, and also requested continuation of gym membership to help maintain fitness.
The next rehabilitation report is that of 29 June 2004. It stated the Respondent had been offered a place in a Certificate IV Architectural Drafting course, that would last one year, commencing in second semester 2004. The report dated 29 July 2004 confirmed the Respondent had commenced his course on 20 July 2004, was “very happy” with it, and was “managing with his injury”. This was confirmed in a report dated 29 July 2004. That was two days before commencement of the period the subject of the current claim. The rehabilitation reports in evidence cease at that point.
These rehabilitation reports did not suggest there had been any significant change in the Respondent’s ability to earn at that point in time. He was attending a full-time TAFE course that was being paid for by the Appellant, that the Appellant’s rehabilitation provider regarded as appropriate. The evidence at that stage did not establish there had been any change in the Respondent’s ability to earn, since the arbitral decision of 11 July 2003.
The Respondent’s statement indicates it took him two years, from July 2004, to complete his Certificate course, and his Diploma of Architectural Technology. His costs of these were paid for by the Appellant. At the conclusion of these, the Respondent was sufficiently qualified that he was able to obtain employment by September 2006 that paid an income greater than he would have probably received in his previous occupation as a cabinet maker. This resulted in cessation of the Respondent’s entitlement to weekly compensation.
There is nothing in the evidence that would lead to the conclusion that the Respondent’s ability to earn, prior to September 2006, was greater than the sum found at the original arbitration. He was actually earning some modest sums from part-time work whilst a full-time student (see [9] above). It would be difficult to conclude he could have earned more than this, in circumstances where he was attending TAFE full-time, in co-operation with a rehabilitation plan put in place by the Appellant (see generally Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 62 WN (NSW) 233). Section 43A of the 1987 Act provides one of the factors to be taken into account, in determining ‘suitable employment’, is “the provisions of any injury management plan for the worker”. It would be unrealistic, in assessing ability to earn in some suitable employment, not to consider the fact that for the period the subject of the current claim, subsequent to 20 July 2004, the Respondent was engaged in full-time study at TAFE, in an attempt to retrain, in a course approved of by both WorkCover, and its rehabilitation provider. Within a period of about two months of finishing his TAFE courses, the Respondent had obtained employment utilising his new qualifications, paying more than he would probably have earned if not for injury, in his previous occupation as a cabinetmaker.
An additional matter is that the Appellant’s notice pursuant to section 74 of the 1998 Act, dated 19 November 2008, did not raise an allegation that there had been an increase in the Respondent’s earnings or ability to earn (section 40(2)(b)), as a basis for disputing the claim for additional weekly compensation. Accordingly, that was an unnotified matter, requiring leave pursuant to section 289A of the 1998 Act, if it were to be pursued. The transcript does not indicate the Appellant ever sought such leave pursuant to s 289A. The Respondent did not take this point at the arbitration, and it was not relied upon by the Arbitrator as a basis for her decision. Accordingly, I also do not rely on it as a basis for the conclusion I have reached in respect of the weekly award. It would, however, have potentially represented a basis to prevent the Appellant pursuing that particular argument in defending the weekly claim.
It follows I have concluded the Arbitrator’s decision on this aspect was true and correct (Chemler). The Appellant’s challenge to the weekly award fails.
Referral of the Section 66 Claim to an Approved Medical Specialist (‘AMS’)
The Respondent sought lump sum compensation pursuant to sections 66 and 67, as set out at [12] above. The Arbitrator noted the allegation of loss of sexual organs was secondary to the allegation of back injury. The Arbitrator noted that, in the original arbitral determination on 11 July 2003, there had been findings that the Respondent injured his back on 26 September 2001, and his back and right knee on 5 October 2001. She referred to Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 (‘Wikaira’) as authority for the proposition that determining whether an injury occurred, and whether it was causally related to work, was a matter to be determined by an Arbitrator, not an AMS. She then referred to Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192 (‘Haroun’) as authority that determination of the degree of permanent impairment resulting from a work caused injury is a task for an AMS. The Arbitrator reasoned that, the occurrence of the injuries having been found by the original Arbitrator, it then became a matter for an AMS to determine whether permanent impairment resulted from those injuries. This was notwithstanding the original Arbitrator’s findings, that the back injury on 26 September 2001 was “minor and of a transient nature” (at [60] of the original decision), and that the effect of the back injury on 5 October 2001 was to aggravate a pre-existing condition, and that the effect of such aggravation ceased by 1 July 2002 (at [98] of the original decision).
The Appellant challenges the referral of the section 66 claims, in respect of the back and sexual organs, to an AMS. The Appellant submits the effect of the original Arbitrator’s findings is that there was no ongoing impairment of the back (and therefore no loss of the sexual organs) resulting from the injuries on 26 September 2001 and 5 October 2001. The Appellant refers to a decision of mine in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (‘Waretini’). In supplementary submissions dated 8 May 2009 the Appellant also relied on a decision of O’Grady DP in Peric v Lee & Ran t/as Pure and Delicious Healthy & Anor [2009] NSWWCCPD 47 (‘Peric’).
In Waretini an Arbitrator, who was dealing with claims for weekly compensation, medical expenses and lump sums pursuant to sections 66 and 67, made a finding that whatever back symptoms the worker suffered from did not result from his employment injury. This was an essential finding of fact, in his decision that the worker fail in his claim for weekly compensation and medical expenses. He then referred the matter to an AMS to assess permanent impairment. I concluded this was an error, at [40]:
“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 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.”
In reaching this conclusion, I cited the following passage from the judgment of Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 – 532:
“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.”
I concluded the Arbitrator’s finding, that the effects of work injury had ceased, gave rise to an issue estoppel that bound the parties. In such circumstances there could not be a finding, inconsistent with this, that there was a permanent impairment resulting from the work injury. Additionally, the referral to an AMS left open the possibility that there could be two inconsistent results in the same case, if a binding medical assessment certificate certified there was a permanent impairment, resulting from the same injury the Arbitrator had found to no longer be a cause of the worker’s symptoms.
There are a number of Presidential decisions in the Commission, holding that questions of ‘injury’, ‘substantial contributing factor’ and causation are matters for decision by an Arbitrator, rather than an AMS: Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50, (2004) 5 DDCR 321; Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38; Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home [2006] NSWWCCPD 103; Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124, (2006) 5 DDCR 337; Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131, (2006) 5 DDCR 461; Gane v Dubbo City Council [2007] NSWWCCPD 140. At least in respect of the question of ‘injury’, the decision of Malpass AJ in Wikaira is consistent with this proposition:
“29.It seems to me, whether or not regard is had to what was done by the Arbitrator, that the medical assessment certificate contained a demonstrable error. The contents of the certificate show that Dr Matheson had come to the view that there was no permanent impairment because of his view there was no evidence of an injury. Not only was there evidence of injury, the fact of injury had been established. It was referred to him to make an assessment on the basis of agreement between the parties that the medical evidence showed that the plaintiff’s orthopaedic injuries arose from the incident of 22 August 2000. The task he had to perform was to determine whether that injury gave rise to permanent impairment.”
Practice Direction Number 11 also is relevant. It provides inter alia “Any dispute in respect of liability in relation to a claim for permanent impairment must be resolved or determined by the Commission constituted by an Arbitrator, prior to the Registrar referring the dispute in relation to degree of permanent impairment for medical assessment.” The Practice Direction must, of course, be read subject to the Acts.
My decision in Waretini predated the decision of the Court of Appeal in Haroun, relied upon by the Arbitrator in the current appeal. In Haroun the Arbitrator, by consent, made findings of ‘injury’, and a finding “The effects of those injuries continue to contribute to any impairment suffered by the applicant”. The Arbitrator by consent referred the matter to an AMS, to assess the degree of permanent impairment resulting from the injuries, and whether any proportion of it resulted from pre-existing condition or abnormality. The AMS found the whole of the assessed impairment resulted from previous injury or pre-existing condition. The worker challenged the AMS finding in the Supreme Court, arguing the AMS was bound to take the consent finding by the Arbitrator into consideration. In the Court of Appeal Handley AJA (with whom McColl JA and McDougall J agreed) said at [19] – [21]:
“19.The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.
20.If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but “may refer it for assessment” by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244.
21.Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.”
In Matar & Anor v Zeineddine [2008] NSWWCCPD 51 Roche DP at [46] said:
“Once it is established, on the balance of probabilities, that Mr Zeineddine’s complaints of sexual dysfunction resulted from the established work injury, he is entitled to have the assessment of any loss resulting from that assault determined by an AMS.” (emphasis added)
This passage was quoted by Price J without criticism in Zeineddine v Matar [2009] NSWSC 646. His Honour described the passage as recognising “that the tasks of the Arbitrator and the AMS were different”. It was not suggested the passage was inconsistent with Haroun.
In Peric an Arbitrator found injury to have occurred, but found it was “a minor injury” from which the worker had fully recovered. On this basis the Arbitrator entered an award in favour of the employer, in respect of the claims for lump sum compensation pursuant to section 66, and also on the claim for weekly payments. He made an award in the worker’s favour in respect of her claim for medical expenses, but only for a limited closed period, up to when he concluded the effects of the injury ceased. The worker appealed, on the basis that, having found the injury occurred, the Arbitrator should have referred assessment of the degree of permanent impairment resulting from the injury to an AMS, rather than entering an award in the employer’s favour on the claim for lump sum compensation. O’Grady DP reviewed the legislation and a number of the authorities, including Haroun. The Deputy President at [77] concluded:
“I am of the opinion that a question as whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an Arbitrator) to decide. Such questions arise for determination in various circumstances on a regular basis before the Commission (for example whether aggravation of a disease is permanent or otherwise; whether incapacity results from one or more identified injuries; whether apportionment among employers pursuant to section 22 of the 1987 Act is appropriate in case of multiple proven injuries). The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not, in my view, deprive an Arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury.”
And at [80]:
“The Arbitrator’s finding made at [23] of Reasons may also, in my view, be readily distinguished from the “consent” finding purportedly made by the Arbitrator in Haroun being that “ (the subject injuries)...continue to contribute to any impairment...”. There the AMS found, as it was entitled, no impairment. Here the finding resolved not only the dispute as to the true nature of the injuries suffered by the Appellant but also determined the dispute concerning the pathological consequences of such injury. Such finding, being one within the exclusive jurisdiction of the Commission, resolved the dispute.”
I agree with the analysis of O’Grady DP, that a finding that the effects of injury have ceased, can be distinguished from the consent finding in Haroun. The consent finding in Haroun, even if accepted, did not establish the existence of a permanent impairment. It remained a matter for the AMS to assess the degree of permanent impairment, and this had to occur, before an Arbitrator could enter an award pursuant to section 66 (section 65(3) of the 1987 Act). Clearly an AMS, in those circumstances, was at liberty to find that there was no permanent impairment, or that the whole of the impairment resulted from a pre-existing condition or abnormality.
In Haroun, the only claim that came before the Arbitrator was one for lump sum compensation. Questions going to ‘injury’ were resolved by consent. In those circumstances Handley AJA concluded that what remained in issue was ‘a medical dispute’, as defined in section 319 of the 1998 Act. The scheme of the 1987 and 1998 Acts was that the medical dispute be determined by an AMS, the Arbitrator lacked jurisdiction to do so.
This may be contrasted with the situations in Peric and Waretini, where the Arbitrator was required to decide what the consequences of injury were, for the purpose of determining disputes going to entitlement to weekly compensation and medical expenses. There can be no room for the suggestion, in such circumstances, that an Arbitrator does not have jurisdiction to determine questions such as causation. The Arbitrator clearly had jurisdiction to do this, pursuant to section 105(1) of the 1998 Act. It was necessary that an Arbitrator determine causation, amongst other issues, for the purpose of determining the claims for weekly compensation and medical expenses. Having decided, as part of this fact finding exercise, that the effects of injury subsisted for a closed period only, such finding also disposed of the dispute between the parties regarding whether there was a permanent impairment resulting from the injury. There could not be, consistent with the finding on causation. The finding created an issue estoppel that bound the parties. The result was that there could no longer be a dispute, about the degree of permanent impairment resulting from the injury, to be referred to an AMS.
In the current appeal, the original Arbitrator’s findings, on 11 July 2003, could have been expressed with greater clarity. Be that as it may, the findings described at [45] above, regarding the consequences of the back injuries the Arbitrator found to have occurred on 26 September 2001 and 5 October 2001, are that the first was “minor and of a transient nature” (emphasis added), and the effects of the second ceased by 31 July 2002. These findings were legally indispensable to the Arbitrator’s decision, regarding the Respondent’s entitlement to weekly compensation and medical expenses. It was consistent with those findings, that the Arbitrator found there was not an ongoing entitlement to medical expenses, other than those of a psychological nature. The Respondent’s submissions, on this appeal, do not argue the decision of the original Arbitrator, and the findings contained in it, do not as a matter of construction support the estoppel contended for by the Appellant. Rather, the Respondent’s submissions rely on the decision in Haroun, and contend the Arbitrator’s decision was consistent with that authority.
The findings regarding the injury to the back created an issue estoppel, binding both parties. Consistent with that estoppel, there is not a dispute regarding the degree of permanent impairment of the Respondent’s back, to be referred to an AMS. As the claim for loss of sexual organs is secondary to the claim in respect of the back (see T19), this conclusion also extends to the claim pursuant to section 66 for the sexual organs.
It follows from the above that I have concluded, after conducting a merits based review, that the decision of the Arbitrator, remitting the matter to the registrar for referral to an AMS, should be varied.
DECISION
Paragraph two of the Arbitrator’s decision dated 9 March 2009 is revoked, and the following is substituted in its place:
“2.The following is remitted to the Registrar for referral to an AMS for assessment of the degree of permanent loss:
- permanent loss of efficient use of the right leg at or above the knee resulting from the date of injury of 5 October 2001.”
The balance of the decision is confirmed.
COSTS
The Appellant’s challenge to the weekly award failed. The appeal succeeded in part, to the extent the orders remitting the matter to the Registrar, for referral to an AMS, were varied. It is appropriate the Appellant pay the costs of the Respondent on this appeal.
Michael Snell
Acting Deputy President
11 August 2009
I, TUYET WALLIS, 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
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