Estoppel - Judgment in District Court deciding issue between parties - Issue as to workman's capacity for work - Effect on proceedings under Workers' Compensation and Rehabilitation Act 1981 for review of weekly payments

Workers' Compensation and Rehabilitation Act 1981, s 84ZM, s 145E(5), s 145F

Decision of the Compensation Magistrate's Court set aside

Application under s 62 Workers' Compensation and Rehabilitation Act 1981 granted

Appellant (Applicant) : McAuliffe Williams & Partners

Heat Containment Industries v Kimberley (1990) 2 WAR 47

McNair v Press Offshore Ltd (1997) 17 WAR 191

Summit Homes v Lucev (1996) 16 WAR 566

Tipper v Orbital Engine Co Pty Ltd, unreported; SCt of WA; Library No 930066; 15 February 1993

United Construction Pty Ltd v Gajic (1998) 19 SR(WA) 362

Weeks v Harbourworks Clough [1985] WAR 327

1 JUDGMENT OF THE COURT: This is an appeal by leave on a question of law pursuant to s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") from the dismissal of Applications to terminate weekly payments of compensation to the respondent by order made by the Compensation Magistrate's Court on 17 January 2002.

2 The respondent, Mr Maketic had been injured in a motor vehicle accident on 15 June 1995 when, as a passenger in a vehicle which hit the rear of another vehicle, he claimed to have suffered injuries in particular to the neck, shoulders, back, left eye and right wrist. Subsequently, on 2 February 1998 he was injured in the course of his then employment as a boilermaker/welder with the appellant, United Construction Pty Ltd. Mr Maketic was cutting off a section of steel pipe with a propane torch. The pipe fell upon two tyres, then bounced and struck him in the left knee injuring the knee. Mr Maketic also claimed that in this incident he fell, or was pushed by the pipe, backwards onto a steel table with consequential back and neck pain. He continued to work for a time after the work accident, but eventually ceased work in April 1998 due to increasing problems arising from the injury to his knee. On 28 April 1998 an arthroscopy was performed on the knee.

3 The appellant accepted that the respondent had suffered a compensable injury at work. Weekly compensation payments were made. On 13 September 1999, the appellant lodged an application pursuant to s 157 of the Act that the respondent undergo vocational rehabilitation further, or alternatively, that weekly compensation payments be discontinued or reduced pursuant to s 62 of the Act. It was the appellant's main contention that Mr Maketic had fully recovered his capacity for work as a boilermaker/welder.

4 In accordance with s 84ZH of the Act, following unsuccessful conciliation, that application was referred to a review officer. Finding there were conflicting claims and medical reports, the review officer referred to a medical assessment panel (the "panel") the question:

5 S84ZH(1) enables a review officer to refer to a panel for determination by the panel a question as to -

"(a) the nature or extent of a disability;

(b) whether a disability is permanent or temporary; or

(c) a worker's capacity for work."

The reference in this case was pursuant to par (c). There was no reference pursuant to par (a) or (b) of s 84ZH(1).

6 The panel is required to make a determination in writing and to give reasons for it: s 145E. There is a process by which a determination of a question may be reconsidered by a panel where there is new evidence. Section 145F provides :

"145F Review

(1) If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the panel and would be likely to affect the determination of the question if it were to be reconsidered by the panel the Director may again refer the question to the panel.

(2) The panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance.

(3) The panel may vary its previous determination or rescind it and make a new determination.

(4) ..."

7 Subject only to this process of review, s 145E(5) provides:

"Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."

8 The panel made its determination on 13 March 2000. In answer to the question, "What is the worker's capacity for work?", it said that -

"(The respondent's) disabilities include ongoing symptoms in the region of his left eye and his neck related to the motor vehicle crash which occurred around June 1995. He also has ongoing disabilities in his left knee and low back which are related to the February 1998 injury at work. We do grade all of these areas of injury as mild.

The patient does feel that he will be able to return to the work force in a supervisory and light duty capacity. He does suggest that he has further training using his previous skills and also training on computers.

We do assess him as being unsuitable to return to his pre-injury work as a boilermaker/welder in a part time or full time capacity.

It is difficult to support his view that he is unable to perform alternative lighter duties such as managing a coffee shop which he has done in the past between 1989 and 1992.

His disabilities should not preclude him from working full time in a suitable alternative occupation. We do assess him as being capable of returning to alternative lighter duties on a full time basis.

Some degree of restriction appears reasonable. We do assess a degree of restriction on heavy lifting. We recommend that he be required to lift less than 10 kilograms. We do recommend that he have duties where there is a capacity to change position from sitting and standing whenever he wishes."

Reasons for its determination, which are not presently material, were given by the panel.

9 In light of this report on 18 April 2000, the review officer ordered by consent that the respondent participate in a Vocational Rehabilitation Program. He did so. Weekly payments of compensation were continued.

10 Mr Maketic brought proceedings in the District Court claiming damages for personal injury resulting from both the 1995 motor vehicle accident and the 1998 work accident. The present appellant was the second defendant.

11 In these proceedings, as the decision of the District Court discloses, it was the pleaded case of the respondent that from the 1995 motor vehicle accident he suffered inter alia bruising and cuts to the head, neck pain with 25 per cent permanent disability to the cervical spine, discomfort to his back, shoulder pain, referred numbness in both arms, regular headaches, periodic trouble with blurred vision and pain in his left eye restricting his ability to drive and read newspapers and causing discomfort with exposure to sun, a fractured right wrist causing constant pain, and insomnia. It was his claim that by virtue of these injuries he had been totally incapacitated for some six months. It was the effect of his evidence that having then found work as a mechanic he had lost this employment after three months because his injuries prevented him from carrying out heavy aspects of the work. He was then unable to find employment until, in June 1997, he was employed by the present appellant as a boilermaker/welder. He was still in this job when he suffered the work accident on 2 February 1998. It was his evidence that he undertook this employment even though he continued to experience pain from the motor vehicle accident injuries.

12 In respect of the 1998 work accident the respondent's claim against the appellant was in negligence and pursuant to s 5 of the Occupiers' Liability Act 1985. It was his pleaded case that he suffered immediate and severe pain in the left knee, with continuing pain and instability as a permanent disability, as well as weakness in the whole left leg. It was also claimed that he suffered pain radiating through to his lower back, pain in the lower back where he (allegedly) struck the table, pain in the back exacerbated by the use of crutches, with a permanent disability of 25 per cent to the lower back, as well as depression, and stomach problems, diarrhoea and vomiting due to the ingestion of medication.

13 His claim included economic loss by virtue of his inability to earn income. In this respect it was his evidence that following the accident on 2 February 1998 he continued to work on a restricted basis until April 1998 when he underwent arthroscopic surgery to the left knee, and has not worked since then.

14 This action was tried by Charters DCJ in February 2001.

15 In particular evidence was led from general practitioners, orthopaedic surgeons, a neurosurgeon, a physician specialising in pain relief and control, specialists in occupational medicine and psychiatrists who had been consulted by the respondent. Generally the symptoms reported to these various practitioners, and in some instances to the one practitioner, varied significantly. Often physical examination and other investigations failed to reveal any physical reason for reported symptoms. The symptoms until trial included disabling pain and movement restriction in the neck and both upper and lower back, as well as the left knee and leg. Perhaps inevitably medical opinions differed. Some practitioners considered there had been a deliberate exaggeration of symptoms, others raised the question whether so called "psychiatric" factors, such as depression, were affecting the respondent's appreciation of his symptoms and their effect on his capacity for work. This issue was explored extensively in evidence at the trial, especially by the expert psychiatric witnesses.

16 In the course of the medical evidence surveillance videos of the respondent, taken over a considerable period, were viewed by the witnesses. Generally their effect was to disclose activities and conduct by the respondent which was quite inconsistent with reported symptoms and his presentation on examination. The evidence included opinions that the respondent had made a total recovery, or that the only disability remaining was a limited one in the left knee function, which would only be symptomatic on fast turning movements and the like. Given the evidence, what was referred to as the psychiatric issue was of considerable significance.

17 In the decision delivered on 28 March 2001, Maketic v Osmanbasic & Ors [2001] WADC 106, Charters DCJ having found the plaintiff to be "a most unsatisfactory witness" whose evidence he was "unable to accept", made findings which included -

"164. The injury at work on 2 February 1998 was not a severe blow to the knee. The plaintiff was able to continue working but the condition deteriorated to the extent that he required arthroscopy.

165. He continued to have instability in the left knee and wasting of the muscles at least to July 1998 (Dr Gillett's review on 6 July 1998). Certainly by February 1999 (Mr Edibam's consultation) he had recovered to the extent he could return to full employment.

166. I find he was incapacitated for work until August 1998. The plaintiff could certainly then work as storeman or courier driver. By now the plaintiff is able, both by reference to the knee, neck and back, to work as a boilermaker/welder.

167. The knee injury has substantially resolved. He now has a 5 per cent disability in the knee - which will become symptomatic only upon fast turning movements.

168. The plaintiff did not fall back upon a table or injure his back or neck on 2 February 1998.

168. The plaintiff untruthfully presented his symptoms to many doctors and rehabilitation specialists. He did so, not for any psychiatric reason, but fraudulently to enhance his claim."

18 In par 190 of his reasons for decision his Honour further found that the 5 per cent disability of the left leg was at or above the knee - cf par 167. His Honour further held:

"194. The plaintiff has been fit to return to his pre-accident occupation of boilermaker although he would be confined to some small degree - to avoid prolonged kneeling or squatting. He may be slightly disadvantaged in obtaining employment as the years go by and to compensate for this I would award $5,000."

19 In summary, Charters DCJ found that no back or neck injury had occurred at work and the knee injury had resolved so as to leave Mr Maketic with a 5 per cent disability of the knee which caused him no pain and would not in the future do so except on fast turning movements or prolonged kneeling or squatting; and this did not preclude him from returning to his pre-accident employment as a boilermaker/welder working full time.

20 On 28 March 2001, the day Charters DCJ delivered his decision, the appellant by Notice pursuant to s 61 of the Act sought to discontinue weekly payments of compensation. It relied on a fresh report of Dr Bowles that the respondent could perform his pre-accident duties in a full time capacity. This was formally disputed by the respondent.

21 On 17 April 2001 the appellant lodged a further application pursuant to s 62 of the Act seeking a review of the respondent's entitlement to receive ongoing payments of weekly compensation. Both the s 61 and s 62 applications subsequently went to conciliation without success, and were ultimately referred to a review officer on 16 August 2001.

22 At this stage there were on the face of it two conflicting decisions as to Mr Maketic's capacity for work. On the one hand the medical assessment panel had determined on 3 March 2000 that Mr Maketic was "unsuitable to return to his pre-injury work as a boilermaker/welder in a part-time or full-time capacity". On the other hand, in a judgment against which there was no appeal, the District Court had determined on 28 March 2001 that Mr Maketic was fit to return to full-time work as a boilermaker/welder. A question therefore arose as to how the review officer should approach the applications. On behalf of the appellant it was contended that the review officer was bound by the principles of issue estoppel to apply the District Court judgment and find that Mr Maketic was completely fit for his pre-accident work. Against this, it was contended by or on behalf of Mr Maketic that by force of the Act it was the medical assessment panel's determination by which the review officer was bound.

23 At a preliminary review hearing, the review officer decided to refer for decision by the compensation magistrate's court pursuant to s 84ZM, the question "Is the Medical Assessment Panel's determination made on 13 March 2000 final and binding in regard to the application before me now?" The learned Compensation Magistrate decided this question and also the s 61 and s 62 applications. This appeal is from that decision.

24 An issue is whether the jurisdiction of the compensation magistrate's court was confined to the question referred to it by the review officer or whether it could extend to the two substantive applications. Relevantly, s 84ZO of the Act stipulates that:

"On hearing a matter referred to it under s 84ZM, a compensation magistrate's court has jurisdiction to make such orders as it thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it."

25 And by s 115 of the Act a compensation magistrate's court has jurisdiction to -

"(a) hear and determine any case referred under s 84ZM."

"Where a question of law arises in the proceedings or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may elect not to make an order and, in accordance with the regulations, refer the matter to a compensation magistrate's court for determination."

Section 84ZM contemplates two situations in which there may be a referral to the compensation magistrate's court namely, where "a question of law arises in the proceedings" before the review officer, or, where the review officer believes it appropriate to refer because of the complexity of issues. The difficulty arises essentially from the words that the review officer may refer the "matter". It is possible to understand "matter" in two different ways in this context. It may mean in each situation that the whole of the proceedings before the review officer are referred. Alternatively, in the first situation it may mean that only the question of law is referred.

27 Relevantly, "matter" has no fixed meaning. Generally, it refers to the subject of litigation, a justiciable controversy involving rights and obligations: O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. The precise context will be material to understanding what the term comprehends in a particular provision. It is well capable of either of the meanings suggested.

28 It is to be noted that the use of the word "matter" in s 84ZM is in apparent distinction from "proceedings". Despite this, s 115(1)(a) provides that "the case" may be heard and determined by the compensation magistrate's court where there has been a referral under s 84ZM. This provision does not distinguish between a referral where a question of law arises and a referral by virtue of the complexity of the issues.

29 Further, the sections in question do not lay down a "case stated" procedure whereby a review officer may state questions of law in the form of a special case for the opinion of the Compensation Magistrate's Court. Section 84ZM is not cast in the language of a special case or case stated provision and is to be contrasted with s 84ZU of the Act which provides:

(1) When a question of law arises in any proceedings before a compensation magistrate's court under Division 4, the court may state a case for the decision of the Supreme Court on that question.

..."

30 And see for example, Rules of the Supreme Court O 31 r 1(1) and O 31 r 2(1).

31 In our opinion a reference under s 84ZM may only be a reference of the whole matter that is before the review officer whether it is by virtue of a question of law or complexity of issues.

32 In this case the Compensation Magistrate proceeded on the basis that only the question of law had been referred but she decided, nevertheless, to deal with the matter or case in its entirety. The end result was in order although the precise means may be questioned. In the circumstances it is appropriate to treat the referral by the review officer as effectively referring the whole matter.

33 The answer given by the Compensation Magistrate to the specific question actually referred to her was:

"The medical assessment panel determination made on 13 March 2000 remains final and binding on any court or tribunal hearing a relevant matter until that determination is rescinded or varied in accordance with s 145F or quashed by way of prerogative relief in the Supreme Court."

34 In the reasons for decision published by the Compensation Magistrate it is clear that she decided not only that the medical assessment panel's determination was "final and binding" but also that it was final and binding in the sense that it spoke forever as to Mr Maketic's capacity for work unless and until it was varied or set aside by the medical assessment panel itself. The Compensation Magistrate concluded that on a proper construction of s 145E(5) and s 145F:

"it is clear that a review officer and any other relevant court or tribunal remains bound by the determination. Should there be a change in circumstances, then the employer should make application pursuant to s 145F which is the only manner in which a medical assessment panel determination can be varied or rescinded (apart from prerogative writ)".

35 With respect to the decision of the District Court made by Charters DCJ the Compensation Magistrate said -

"51. It is the finding of the District Court that led to the application before this Court. Those findings are not evidence before this Court but simply, with respect, the view of a judge giving determination (sic) in a civil case between the relevant parties. That decision cannot, in my opinion, override the determination of the MAP which is final and binding upon me."

36 The appellant now appeals by leave from this decision to this Court under s 84ZW on the following grounds:

"Ground 1

The learned Compensation Magistrate erred in law in finding that the Medical Assessment Panel's determination on 13 March 2000, as to the respondent's capacity for work, was binding for all time unless varied or rescinded under s 145F of the Act or quashed by the Supreme Court. In particular, the Compensation Magistrate erred in law in:

(a) failing to find that the question the Review Officer had asked the Medical Assessment Panel was a question as to the respondent's capacity for work as at the date of assessment;

(b) failing to find that the Medical Assessment Panel's determination as to the respondent's capacity for work was binding insofar as it related to the date of the assessment.

Ground 2

The learned Compensation Magistrate erred in law in concluding that the findings of the District Court were not evidence before the Compensation Magistrate's Court but simply the view of a judge giving determination in a civil case between the relevant parties.

The learned Compensation Magistrate should have held that:

(a) the findings of the District Court created an issue estoppel binding upon the appellant and the respondent to the extent that those findings necessarily established the legal foundation or justification of the District Court's conclusion that the respondent's claim against the appellant in the District Court should be dismissed; and or

(b) in any event the Compensation Magistrate's Court should adopt the District Court's findings and reasons unless the respondent was able to show that the District Court was in error.

Ground 3

The learned Compensation Magistrate erred in law in concluding that it was not open the Compensation Magistrate's Court to find that the respondent's unsuitability, if any, for his pre-injury work was not caused by the work accident but by other factors including but not limited to fraud.

The learned Compensation Magistrate should have held that the Compensation Magistrate's Court:

(a) was not bound, whether by the Medical Assessment Panel's determination or otherwise, to find that the respondent's unsuitability, if any, for his pre-injury work was, or is, caused by the work accident;

(b) was therefore entitled to conclude that any such unsuitability was caused by one or more of the factors referred to by Dr Bowles in his report dated 5 January 2001, or alternatively, was caused by fraud as found by the trial Judge; and

(c) should have concluded that any incapacity caused by any such factors (including but not limited to fraud) was not compensable.

Ground 4

The learned Compensation Magistrate erred in law in finding that she was unable to make a determination as to a change in circumstances on the basis of the District Court decision, the surveillance and the medical evidence provided after the date of the Medical Assessment Panel's determination on the basis that she was bound by the Medical Assessment Panel's determination on 13 March 2000.

The learned Compensation Magistrate should have held that the Medical Assessment Panel's determination related only to the respondent's capacity for work as at 13 March 2000 and that she was therefore not prevented by the Medical Assessment Panel's determination from making a determination that the respondent's circumstances had changed since that date having regard to the past or present condition of the respondent as required by s 62 of the Worker's Compensation and Rehabilitation Act 1981 (as amended)."

37 Given the nature of the issues raised in this appeal it is more convenient to consider the issues generally, rather than to give specific attention in order to each of the grounds of appeal.

38 It is the actual question referred by the review officer pursuant to s 84ZH which determines the scope of the jurisdiction of a medical assessment panel to make a determination. In this case, the only question referred to the panel was "What is the worker's capacity for work?" This was clearly a referral pursuant to s 84ZH(1)(c). In the first paragraph of its determination the panel has purported to deal with issues of causation, distinguishing between disabilities which it attributed to the 1995 motor vehicle accident and disabilities which it attributed to the 1998 work accident. To the extent that the panel has purported to deal with causation, the determination exceeds the jurisdiction of the panel and is of no legal effect: Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395. In this particular determination, however, that does not appear to affect the balance of the determination. The findings on capacity for work appear distinct and quite severable: Ex parte Ansett Australia Ltd at 401 - 402.

39 The determination is therefore valid and effective insofar as it determined that:

"We do assess him as being unsuitable to return to his pre-injury work as a boilermaker/welder in a part-time or full time capacity.

...

His disabilities should not preclude him from working full time in a suitable alternative occupation. We do assess him as being capable of returning to alternative lighter duties on a full time basis."

40 Further, to the extent that the determination deals with the disabilities of the respondent, it does so only for the purpose of, or to explain the panel's reasons for, reaching its findings as to the respondent's capacity for work. No question as to the respondent's disabilities was referred to the panel by the review officer under either s 84ZH(1)(a) or (b). It is therefore the case that it is only those aspects of the determination which deal with the respondent's capacity for work which are "final and binding" and "conclusive evidence" by virtue of s 145E(5). In this respect in Ex parte Juras, unreported; FCt SCt of WA; Library No 960637B; 7 November 1996, Murray J, Franklyn and Owen JJ concurring, said at 6 of s 145E(5) that:

"It is clear, I think, that by the terms of that privative provision the finality of a determination is only secured in a court or tribunal hearing a matter in which the subject matter of the determination is substantively relevant. That view is, to my mind, confirmed by the provision that the determination provides conclusive evidence of the facts determined, so that one could certainly not go behind its terms in relation to any proceeding under the Act in which the terms of the determination were relevant."

41 As is apparent from the terms of s 145E(5) a determination of a panel is also final and binding on any court in which the determination is relevant. As will appear, however, it is necessary to have regard to the precise question which is validly determined by a panel and for that question to be relevant in the proceedings in the Court.

42 In the context of s 84ZH "disability" has been held not to be confined to the defined meaning of that term for which s 5 provides, but is used in the non-technical sense of "physical incapacity": Re Skirving; ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998. Both from the language of the determination and by virtue of that decision it is clear that the panel in this case was not purporting to confine its assessment of the respondent's capacity to work to the effects of the 1998 work accident. Hence, there remained, as unresolved issues, to what extent, if any, the various disabilities identified in the determination were attributable to the 1998 work accident rather than to the earlier 1995 motor vehicle accident and, the extent, if any, to which the limitation on the respondent's capacity to work, including his unsuitability to return to his work as a boilermaker/welder, was causally attributable to the 1998 work accident for the purposes of the Act. These were two issues which, to the extent that they required to be determined in 2000, were within the jurisdiction of the review officer. Neither issue was validly dealt with by the panel's determination.

43 For this purpose, the review officer not only might have had access to the relevant evidence and material before him but also, by s 84ZB(3), the review officer might:

"(a) receive in evidence any transcript of evidence in the proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

(b) adopt, as the review officer thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the review."

It is to be noted that irrespective of the arguments raised in this appeal concerning issue estoppel, this statutory provision would enable reference to, and reliance on, relevant aspects of the evidence led before Charters DCJ and the findings made by his Honour.

44 In April 2000, however, the review officer did not purport to determine these two issues. Instead, the need for him to do so at that time appears to have been averted because, by consent, participation in a vocational rehabilitation programme was ordered.

45 To the extent they remained live issues for the purposes of the present s 61 and s 62 applications in 2001, these two issues were originally in the jurisdiction of the review officer then dealing with these fresh applications. Following the referral to the compensation magistrate's court they became issues for determination by that court. This was correctly appreciated by the learned Compensation Magistrate. She determined that she could have regard to the findings of Charters DCJ, accepted that causation had not been determined by the determinations, but inferred that the "unsuitability for the respondent's pre-injury work relates to the injuries described in the reasons for decision given for the determination", ie injuries relating to the left knee and leg.

46 This process of reasoning led the Compensation Magistrate to identify, as the "real issue" on the s 61 application, "the conflict between the District Court's finding of fraud, and hence the respondent's suitability for his pre-accident employment, and the determination of the panel as to his unsuitability for that work". The Compensation Magistrate decided that the conflict was resolved by s 145E(5) which made the panel's determination "final and binding" unless rescinded or varied under s 145F.

47 On the s 62 application, the Compensation Magistrate concluded that a finding of changed circumstances could not be made while she was still bound by the determination, observing that if there were to be some new evidence likely to effect the determination of the question if it were to be reconsidered by the panel, then application should be made pursuant to s 145F.

48 As has been observed above the question of law referred to the Compensation Magistrate was answered on the basis that the determination of the panel on 13 March 2000 remained final and binding on any court or tribunal hearing a relevant matter until rescinded or varied in accordance with s 145F, or quashed by way of prerogative relief.

49 Hence, critical to the decision of the Compensation Magistrate in respect of the determination of both applications, and of the question referred by the review officer, was the force and effect of the panel determination of 13 March 2000 by virtue of s 145E(5).

50 In this respect we were invited to overturn the decision of the compensation magistrate's court in Rock Engineering v Pozun, unreported; CMCt, Packington CM; No 76/96; 28 January 1997, which was applied in determining this present case by the Compensation Magistrate. It was submitted we should hold that the panel determination was only as to the capacity for work of the respondent as at the date of the determination, 3 March 2000, so that it had no binding force for the present applications as they concern the capacity of the respondent for work at the time the applications were heard and determined on 17 January 2002, and not 3 March 2000.

51 It may be accepted that each of the questions which may be referred to a panel by a review officer under s 84ZH (similarly by a conciliation officer under s 84R and by a compensation magistrate's court under s 84ZR) is necessarily to be answered as at the date of the determination: cf Re Bannon; Ex parte Suleski [2001] WASCA 289 at [6] and [15]. In the present case the only question referred to the panel concerned Mr Maketic's "capacity for work". That particular subject matter does not suggest that any prognosis or prospective evaluation is involved, save as may be involved as a limited matter of practicality in a determination that a worker has the capacity to undertake work. Different considerations may arise in another case where, for example, a question "whether a disability is permanent or temporary" is referred pursuant to s 145A(1)(b).

52 Where, as in this case, the only question referred is that of the capacity for work, there is thus much to commend the view that the question, and therefore the determination made by the panel, is limited to the worker's capacity as at the date of the determination by the medical assessment panel. Against that view it can be said that there will be cases in which little purpose is served in determining only the question of the worker's capacity at the date of the determination by the panel, especially as that date will not normally be the date on which any decision of a review officer or the compensation magistrate's court, which takes into account the determination, is made. Even so, circumstances can readily be envisaged in which the answer to that single question will for practical purposes resolve all that is in dispute between the parties. For example, there are cases in which there is no dispute as to the nature and extent of the disability and no contest as to its permanency and no controversy on the issue of causation, leaving only the worker's capacity for work. The determination of the question of capacity might well be all that is required to produce a lasting result.

53 On the other hand, even though the determination is necessarily of the capacity for work of the worker as at the date of the panel's determination, there are indications in the scheme of the Act, and in particular in the provisions of s 145E(5) and s 145F, that a determination by a panel on any question referred to it is to be maintained as final and binding, and therefore in a sense current, unless and until the determination is rescinded or varied under s 145F. This, of course, allows for a determination to be reconsidered whenever there is new evidence, a concept which includes changed circumstances. The reasons in Rock Engineering v Pozun canvass a number of the considerations which offer some support for this view.

54 Regrettably the provisions of the Act are less than clear as to what is intended and there are difficulties and inconsistencies in the working of the Act on whichever view is taken. This issue has not previously been determined by this Court. In the present case the respondent appeared in person so that the Court has not had the advantage of full argument. For reasons which follow it has proved unnecessary to determine that issue to decide this appeal. For these reasons it is preferable the issue is not finally determined in this appeal.

55 In this present case it is critical to keep in mind that the respondent had suffered two disabling accidents, only one of which was compensable under the Act. Issues of causation, affecting both disabilities and incapacity for work, are therefore critical. Both compensable disabilities and non-compensable disabilities were taken into account by the panel in its determination. There has been no valid determination by the panel of the capacity or incapacity for work of the respondent by virtue of the 1998 work accident. That is the issue raised by both the s 61 and the s 62 applications. For this same reason, the view of Charters DCJ that he was not bound by the determination of the panel was also correct, even though the precise reasoning of his Honour may not have fully recognised the effect of s 145E(5).

56 In the District Court trial it was necessary for Charters DCJ to consider and distinguish inter alia the effects of the injuries suffered in each of the 1995 motor vehicle accident and the 1998 work accident on the capacity for work of the respondent. Those issues had not been determined by the panel, which looked only at the combined effect of the injuries or disabilities which it identified, whatever their cause. Indeed, this was fortunate for the respondent in the proceedings before the District Court. Had the determination been binding in respect of disabilities, that would have inhibited very considerably his ability to pursue the injuries which he claimed resulted from the 1998 work accident as many of these were not mentioned in the determination of the panel.

57 Relevant findings of Charters DCJ have been set out earlier in these reasons. In particular, they are that the respondent suffered an injury in respect of his left knee in the 1998 work accident, but did not injure either his back or neck in that accident, and that although the left knee injury has resulted in a small residual disability the respondent is not incapacitated for work in his occupation of boilermaker/welder. Further, insofar as the respondent had relied in the District Court trial on the "psychiatric" or psychosomatic effects of the two sets of injuries, whether separately or in combination, it was the effect of his Honour's finding that this significant aspect of the respondent's claim was not causally related either to the 1995 motor vehicle accident or the 1998 work accident, but had been fraudulently and untruthfully advanced to enhance his claim for damages.

58 As has been indicated the learned Compensation Magistrate considered that, while she could take notice of the findings of Charters DCJ in the action between the respondent and the appellant, she was precluded from giving effect to them because of what she understood to be the binding effect of the determination of the panel.

59 We would also note that when the Magistrate considered the critical questions of causation, she was prepared to draw an inference, from the reasons of the panel, that the disabilities resulting from the 1998 work accident were the sole cause of the incapacity for work determined by the panel. The passage in the reasons to which her Worship referred is one which identified the findings on examination by the panel of the respondent's left leg. There is nothing in that passage which purports to relate those findings to the incapacity for work which was determined, and the inference overlooks the express reference by the panel in the determination to disabilities affecting parts of the respondent's body other than the left leg.

60 It is at the point in her Worship's reasoning, however, when she turned to the issue of whether disabilities arising from the 1998 work accident were causative of the incapacity for work which the panel had determined and the respondent asserted, and which justified the continuation of the weekly payments of compensation he was receiving, that the question of issue estoppel became relevant. This was not appreciated by her Worship.

61 Issue estoppel was considered by Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531, where his Honour 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 ...

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. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter [1855] EngR 264; (1855) 4 E & B 780 at 794, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

... But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. ..."

62 In Waddington v Silver Chain Association [1998] WASCA 331; [1998] 20 WAR 269 this Court (Malcolm CJ, Kennedy and Owen JJ) said at 279:

The decision in [Weeks v Harbourworks Clough [1985] WAR 327] makes it clear that a review under s 62 of the Act will be subject to res judicata (or for that matter issue estoppel, although no distinction was made within the reasons for judgment) if and only if the circumstances at the time of the review are precisely the same as they were at the time of the original decision. Otherwise the original decision is open to review. Thus, unless the circumstances at the subsequent hearing are exactly the same no question of issue estoppel arises. It follows that in all other cases, if there is any other evidence which may lead to a different result, a decision on a review under s 62 of the Act is not a final decision and does not create an issue estoppel."

63 Those remarks were made in the context of the question whether the decision of a review officer gave rise to an issue estoppel. However, they appear to be equally applicable to a case in which a review of weekly payments is sought under s 62 after a court of competent jurisdiction has determined that the worker is suffering from a disability resulting from an injury by accident in the course of employment but that the disability is not presently incapacitating and is unlikely to worsen. If the situation of the worker on the review is exactly the same as at the time of the judgment there would be an issue estoppel but not otherwise. The earlier decision does not preclude a worker from contending on a review under s 62 that since the judgment was delivered the incapacity found to have existed has in fact worsened or that for some other reason the position is not the same as before.

64 In the action tried by Charters DCJ, the respondent inter alia sought damages at common law from the appellant for personal injuries suffered by the respondent by virtue of the February 1998 work accident. It was admitted by the appellant that the respondent was involved in an accident in the course of his employment by the appellant at the appellant's premises on 2 February 1998, but the circumstances of the accident and the injuries and loss as alleged by the respondent were not admitted. The issue became whether the respondent was entitled to recover an award of damages in respect of the 1998 work accident. To succeed the respondent had to overcome a statutory bar provided by s 93D of the Act. This required that the respondent establish that the disability was a "serious disability". This term is defined in s 93D(2). It required that the degree of disability, if assessed in a prescribed manner, was 30 per cent or more, or that the future pecuniary loss resulting from the disability is in an amount at least equal to the prescribed amount, which at that time was $122,139.

65 It was thus necessary, in the sense of legally indispensable to his decision on the respondent's claim against the appellant, that Charters DCJ both assess the degree of disability resulting from the work accident and what, if any, future pecuniary loss would result from it. By virtue of the statutory bar to an award of damages, the findings of his Honour that the 1998 work accident involved injury or disability to the left knee but not the back or neck, and had not given rise to any so called psychiatric symptoms or condition those manifestations being fraudulent, and that the respondent was able to work in the future as a boilermaker/welder, were therefore legally indispensable to the decision. They were matters which it was necessary to decide as the groundwork of the decision itself in this case, in the sense identified in Blair v Curran.

66 In respect of the 1998 work accident Charters DCJ assessed the damages that had been established by the respondent at $23,626, of which only $5,000 was in respect of future pecuniary loss. In addition to this sum an award for some past medical expenses remained to be quantified, but, these were not substantial and as his Honour held, the respondent could not be said to have suffered a "serious disability" within either limb of s 93D(2) of the Act. For that reason the respondent's claim against the appellant at common law in respect of the 1998 work accident was dismissed.

67 It was not the case for Mr Maketic before the Compensation Magistrate that there had been any change in the condition of his knee since the trial before Charters DCJ and the materials before the Magistrate did not open up that possibility.

68 For these reasons, in our view, at the point in her reasons for decision where the Compensation Magistrate turned to consider the question of causation, her Worship was obliged, by virtue of the doctrine of issue estoppel, to give effect to the critical findings of Charters DCJ in the District Court action. As a consequence, her Worship was bound to find that the respondent's disabilities from the 1998 work accident were not then productive of incapacity to work in his former occupation of boilermaker/welder, as the issue had been finally determined between the parties in the District Court action. By virtue of the doctrine of issue estoppel the respondent was estopped from asserting the contrary. In this respect, in our view, the doctrine of issue estoppel also precluded the respondent from asserting that there was any disability from the 1998 work accident other than to his left leg at or above the knee.

69 For these reasons, in our view, the question referred by the review officer to the Compensation Magistrate should not have been answered as it was and the s 62 application should not have been dismissed.

70 It must be appreciated that the respondent was not entitled to recover damages at common law from the respondent in respect of the 1998 work accident because of the statutory bar provided by s 93D of the Act. He is left with any entitlement that may exist from time to time under the Act. As far as appears on the papers before this Court, there would appear to be an unresolved possible entitlement under the second schedule in respect of the partial disability to the left leg. It is also the scheme of the Act that, should incapacity arise at some time in the future which is causally related to the disability suffered in the 1998 work accident, an entitlement to weekly payments may again arise, subject of course to the statutory ceiling on such payments. In these respects the decision of Charters DCJ was not that there was no longer any disability. He expressly found there was still a limited disability of the left leg, at or above the knee, which could become symptomatic. He found that "the knee injury has substantially resolved. He now has a 5 per cent disability in the knee - which will become symptomatic only upon fast turning movements".

71 Should Mr Maketic's left knee become symptomatic in the future the prospect of fresh incapacity exists. Further, there are a number of cases of respected authority in the context of workers' compensation legislation which serve to draw attention to the limitations in the way of the application of the doctrine of res judicata or issue estoppel to a decision as to the condition of a worker and the nature of the worker's injuries, because a decision based on the evidence then procurable might always be corrected at a future time in the light of future developments: Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685 per Fletcher Moulton LJ at 691; Ramsay v Gramophone Co Ltd [1936] 2 All ER 752 per Scott LJ at 761; Sharman v Holliday & Greenwood Ltd [1904] 1 KB 235; and see Waddington v Silver Chain Association (supra).

72 Whilst Mr Maketic would be estopped from claiming weekly payments based upon any incapacity arising from a back or neck injury, he would not be estopped from showing in any future review that the position with respect to his knee condition is not the same as it was when his common law damages action was tried by Charters DCJ.

73 See also Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 per McLure J at par 304.

74 There was no suggestion in the proceedings before the Compensation Magistrate's Court that Mr Maketic's condition had changed in any way since the trial before Charters DCJ and there is no material before us which could support a contention that it had. The decision of the Compensation Magistrate's Court should therefore be set aside and in lieu it should be ordered that Mr Maketic's application under s 61(3) should be dismissed, and the appellant's application under s 62 should be allowed to the extent that there should be an order that weekly payments should cease.