Price v Workcover Corporation/Mmi

4 In respect of the first issue, whilst it is true that within the one hearing, if the issues of permanent disability and incapacity for work are in issue, a finding of permanent disability will in most cases lead to a finding of an incapacity for work, that is not particularly to the point here because they were not issues that arose within the one hearing. The hearing before the Arbitration Officer was confined to the issue of permanent disability. The only significance of his findings is whether they, as a result of a rule of law or rule of evidence (and there is some uncertainty as to which is the correct description: Trepic v ROH Industries Pty Ltd (unreported, judgment Supreme Court of South Australia No 2890 of 1991, 5 June 1991 at 8, per Cox J) and G K Sanford Pty Ltd v Jansen [1992] FCA 236; (1992) 36 FCR 83 at 97) made it permissible for the learned Deputy President to independently determine whether the compensable disabilities have resulted in any incapacity for work. In concluding that findings of the Arbitration Officer did not preclude his independent determination of the issue of incapacity, the learned Deputy President clearly formed the view that the existence or otherwise of an incapacity for work did not concern an issue of fact which was "legally indispensable" to the Arbitration Officer's decision in respect of permanent disability: see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 - 532 per Dixon J; Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603, per McHugh JA; and G K Sanford Pty Ltd v Jansen (supra) at 98 per Neaves, Beaumont and von Doussa JJ.

5 With respect, in reaching that conclusion, the learned Deputy President was undoubtedly correct. A consideration of the decision of the High Court of Australia in O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1937 - [1938] HCA 15; 1938) 59 CLR 744, makes that clear.

6 The learned Deputy President, in the course of his reasons, went on to say, that if his conclusion about issue estoppel was wrong, he was of the opinion that the principle of issue estoppel could never apply to the findings of an Arbitration Officer. This latter issue was the subject of extensive submissions before us. Given my conclusion that the learned Deputy President was correct in concluding that in the circumstances of this case issue estoppel did not arise, it is not strictly necessary for us to consider this issue.

7 This is not an easy issue to resolve. On the one hand, it might be thought surprising that a decision made by an Arbitration Officer within an abbreviated form of hearing in which expert evidence cannot be called, could create issue estoppel in respect of proceedings before a Presidential Member of the Tribunal which can take a much more extended form and in which expert evidence can be called.

8 On the other hand, given that decisions made by Arbitration Officers which are not challenged through a subsequent application for judicial determination of the dispute, create rights and liabilities between the parties and at least in respect of the issues that were the subject of the arbitration amount to a final decision, it might be thought to be inconsistent with the notion that "it is of the highest public interest that there should be some finality in litigation ...": Ventura v Sustek (1976) 14 SASR 395 at 401, per Bray CJ, for the parties in subsequent proceedings to be able to relitigate issues in dispute that had been previously determined. Moreover, independently of the principle of issue estoppel, there might be other legal principles that apply that would prevent a party from subsequently attempting to resile from an earlier finding of ultimate fact which formed an ingredient of the cause of action: Blair (supra) at 532. These might include estoppel by conduct and the doctrine of laches.

9 Although this is an important issue and we had the benefit of comprehensive submissions, as the issue does not arise in this case I think the matter is best left to another day.

10 The appellant worker, Douglas Price, has appealed against the decision dated 6 September 1999 of the learned Deputy President ("the learned Member"). The relevant issue before the learned Member was whether one or a combination of various disabilities that the worker allegedly sustained in the course of his employment with M J Sherrin Pty Ltd ("the employer") resulted in incapacity for work following the termination of his employment on about 10 March 1995.

11 By claim for compensation dated 23 November 1996 the worker claimed incapacity for work as a result of the following injuries:-

1. An injury to the right knee on 2 April 1991 suffered whilst jumping off a truck at the premises of BHP, Whyalla.

2. A sprain of the right thumb on 31 December 1991 whilst using a crane at BHP, Whyalla.

3. A laceration of the left hand on 2 September 1992 when tripping at BHP, Whyalla.

4. Neck, lower back and mental injuries sustained in a motor vehicle accident on 8 March 1995 at Lochiel.

12 The claim was rejected by determination of the respondent dated 19 February 1997. Summarising the determination, it was asserted that the right knee injury, which had earlier been accepted for a short closed period, and the left hand and right thumb injuries, which had been accepted for medical expenses only, were not incapacitating the worker for work, and that he had not sustained a disability to his neck and a stress reaction which were incapacitating him for work.

13 The worker filed a Notice of Dispute in the Tribunal which, following Arbitration, was the subject of judicial determination. The decision of the learned Member identifies that it was the injuries to the right knee, right thumb and neck which were the subject of the hearing which was confined, at least in relation to the injuries of 2 April 1991 and 31 December 1991, to "whether the worker suffered compensable disabilities on those dates and if so whether they have individually or collectively resulted in an incapacity for work" (AB 763).

14 It is relevant to the issue on appeal to indicate that by decision dated 12 March 1997 an Arbitration Officer determined certain Notices of Dispute lodged by the worker following the respondent's rejection of claims for compensation pursuant to s 43 of the Act. That decision dealt with a number of relevant disabilities. The Arbitration Officer confirmed a nil assessment concerning the disability to the left hand of 2 September 1992. He set aside a nil assessment concerning the right leg disability of 2 April 1991 and substituted an assessment of 20% loss of the full and efficient use of the whole leg. He set aside a nil assessment concerning the right thumb disability of 31 December 1991 and substituted an assessment of 10% loss of the full and efficient use of the whole of the arm.

15 In his brief reasons he stated that he was satisfied, on the evidence of the worker, that in respect of his knee and hand he was asymptomatic prior to the relevant compensable disabilities in 1991, and that the disabilities caused the presentation of which he then complained.

16 In the subsequent Judicial Determination concerning the issue of the worker's capacity for work the learned Member found that the worker suffered the incident complained of on 2 April 1991 but was unable to accept "that the disability of 2 April 1991 featured at 10 March 1995 or that it has featured thereafter" (AB 767). His Honour formed the view that the worker had problems with his right knee for some time and was unable to accept that beyond 1 April 1991 "the worker's knee disability progressed to a new level."(AB 767) He thought a more likely explanation was that the effects of the disability diminished in time and that the worker had been left with the same degenerate right leg as he had before the incident occurred. He therefore found that, as from 10 March 1995 to the date of the decision, the compensable disability that the worker had sustained on 2 April 1991 had not resulted in an incapacity for work. As to the right thumb injury, the learned Member found that the worker "may have had problems with his right thumb that pre-dated the injury of 31 December 1991 and which might have marginally become worse as a result thereof. ... But I do not think that the evidence supports a finding of an incapacity for work". (AB 768)

17 In putting submissions on this appeal Mr Kourakis QC, counsel for the worker, argued that the earlier decision of the Arbitration Officer concerning the worker's s 43 entitlements gave rise to an issue estoppel; that as the Arbitration Officer had determined that the relevant work-caused disabilities to the worker's right thumb and right knee were permanent, an issue estoppel arose that there was a compensable disability subsisting at the time relevant to the claim for income maintenance.

18 Mr Kourakis conceded that a determination that a worker is incapacitated for work for a specific earlier period does not create an issue estoppel in relation to incapacity for a later period. However, he drew a distinction between that scenario and the circumstances here where the Arbitration Officer's determination was that the worker had a permanent compensable disability.

19 The thrust of his argument was that, although he accepted that the ultimate question for the learned Member involved additional factors, the learned Member was bound to proceed to determine the issue of incapacity for work on an acceptance of the Arbitration Officer's earlier findings. It was submitted that "if part of the reasoning towards that additional factor involved the determination of an issue already decided and issue estoppel went to an Arbitrator's decision, His Honour was bound by it." (Appeal tr 4 - 5). Mr Kourakis went on to say:

"One doesn't even get to consider incapacity which was the question before Gilchrist DP, unless the worker first proves a compensable disability. If the worker proves a compensable disability then the question of incapacity or not will arise. The appellant's case before your Honours is simply that that base question, was there a compensable disability subsisting at the time covered by the claim for income maintenance, had been decided by Arbitrator LePoidevin because he had decided that those work-caused disabilities were permanent".

20 With respect this proposition is not consistent with authority. In the High Court decision of O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1937 - 38) [1938] HCA 15; 59 CLR 744 the facts were that the appellant suffered an injury to his right eye in the course of his employment when he was struck across the face by a palm leaf whilst collecting fares on the footboard of a tram. He became blind which he alleged resulted from this injury. He claimed that he was disabled and sought the salary he was receiving at the time of the injury. He obtained a judgment in the Supreme Court of New South Wales by which he was awarded salary for a specific period. Later, in an application for workers compensation, the appellant claimed a subsequent incapacity for work resulting from blindness. In those proceedings evidence was led and a finding made that although he continued to be blind, the blindness from which he suffered was not causally connected with the injury.

21 The appellant contended that the respondent was estopped from tendering evidence as to the cause of his incapacity viz the blindness, because it had already been determined in the earlier Supreme Court proceedings that the cause of the blindness was the incident with the palm leaf. The appellant argued that issue estoppel applied, that although the cause of action was different, this particular issue had already been decided between the parties so as to preclude either of them from contending to the contrary of that matter.

22 Latham CJ identified the issue determined by the earlier proceedings and said that it had been "conclusively determined as between the parties that the total blindness existing on or prior to the date mentioned was an incapacity due to personal injury arising out of and in the course of his employment" (supra 758). This, he said, was the determination of a past fact, namely the cause of the then existing blindness. He proceeded, however, to say that an estoppel cannot operate by inference and that although the judgment created an estoppel as to one proposition "... but that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption" (supra 758 - 759).

23 His Honour then identified the relevant propositions to be determined in the subsequent proceedings, and concluded that it was necessary to add propositions to those actually decided by the Supreme Court "before it is possible to reach the desired conclusion as to the cause of the blindness which is the foundation of the plaintiff's present claim. Therefore the Supreme Court did not decide the very question which is now raised" (supra 759).

24 It is also helpful to quote the relevant passage from the judgment of Evatt J. After setting out that the earlier proceedings determined that the disablement or incapacity from which the worker was suffering on, and for some time prior, to February 1935, was blindness which was caused by personal injury arising out of and in the course of his employment, His Honour summarised the appellant's argument that those matters having already been determined, the employer was precluded from attempting to establish anything to the contrary, and furthermore that commencing with both issues established in his favour the worker could establish a further estoppel by proving one additional fact, viz, that the incapacity caused by blindness did not terminate in February 1935 but continued thereafter. Of this approach His Honour said:

"Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorise the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence no matter how strong such evidence may be" (supra 763).

25 It is to be noted that O'Donel's case has also been applied in Telstra Corporation Limited v Lynette Mary Arden (1994) 20 AAR 285 and Re: Marr (Contracting) Pty Limited and: White Constructions (ACT) Pty Limited [1991] FCA 552; (1991) 32 FCR 425.

26 The issue in relation to the Arbitration Officer's decision was whether the worker had a permanent disability. That required proof that the worker had sustained a compensable disability which was permanent. The issue in relation to the judicial determination was whether the worker had an incapacity for work from about March 1995 and continuing. That required proof that the worker suffered a compensable disability resulting in incapacity for work at the relevant time. Incapacity can be present whether there is a permanent disability or not. As the issue in the subsequent proceedings at judicial determination involved a separate and independent issue requiring proof by evidence of matters not determined by the earlier Arbitration Officer's determination, it is not permissible for the worker to proceed by relying on that determination or alternatively by relying on that determination and then proving additional facts.

27 No issue estoppel arose from the Arbitration Officer's determination in relation to the subsequent judicial determination and therefore it is not necessary to determine the further issue raised on this appeal, namely whether the determination of an Arbitration Officer can support a plea of issue estoppel. That matter can be left to another day.

28 The remaining ground of appeal was that in reaching his decision the learned Member did not apply the correct legal test as to causation. S 35 entitles a worker to weekly payments of income maintenance if a compensable disability results in incapacity for work.

29 The learned Member found that the worker was not incapacitated by the disability to the right knee or the right thumb. As to the right knee the learned Member said "I am unable to accept that the disability of 2 April 1991 featured at 10 March 1995, or that it has featured thereafter" (AB 767). In reaching this conclusion, he noted the worker's evidence as to various complaints of pain and restriction of movement in the right knee since the incident in question, and he also noted the evidence of the worker's general practitioner, Dr Pershad, that he had recorded no complaints regarding the worker's right knee between 22 April 1991 and 6 May 1996. In the light of that evidence the learned Member drew the inference that, if the worker had been troubled with his right knee to the extent he described in his evidence, he would have mentioned it to Dr Pershad. He was therefore unable to accept the accuracy of the worker's evidence as to the extent and nature of his ongoing complaints. He was unable to accept that the worker's knee disability progressed to a new level following 2 April 1991 but found that the effects of the injury diminished in time leaving him with only pre-existing degeneration. (AB 767)

30 As to the right thumb injury he concluded that the worker's pre-exisiting right thumb problem may have become marginally worse following the injury of 31 December 1991, but he noted the absence of complaints to Dr Pershad and found that the worker had been untroubled by the legacies of the right thumb injury whilst carrying out the normal duties of his employment with the employer.

31 The causal test for determining whether a disability results in incapacity can be taken by analogy from WorkCover Corporation v Sherriff (Unreported judgment Supreme Court of South Australia S5831). Although that decision concerned whether a disability arose from employment, the essential test and the process of determination is similar. What is required is a commonsense evaluation of the chain of events. What is to be determined is not whether the employment disability was a material, proximate, real or effective cause of the incapacity, but whether on the facts found, the employment disability was significant enough to still be able to say that it resulted in incapacity.

32 Mr Kourakis submitted that the use of the word "featured" by the learned Member disclosed an error of law as it is not the application of any known test. With respect this is just a matter of words. It is clear from the learned Member's decision that he was applying the causal test specified in s 35 to the facts which he found. It is also clear that he found no persuasive evidence which provided the necessary link between the disabilities of 2 April 1991 and 31 December 1991 and the alleged incapacity for work. There is no appeal against those factual findings and in the absence of any error of law the learned Member's decision is upheld and the appeal dismissed.