Certificate of Determination Creates Estoppel in the PIC

Gimis v Tweed Shire Council [2023] NSWPICPD 44

The Appellant suffered an injury as a result of driving a lawn mower in the course of his duties. He alleged injuries to his back, neck and left shoulder in addition to a psychological injury.

The Respondent disputed the injuries and the matter was brought before a non-presidential Member on 1 July 2021. The parties were able to resolve the matter, which was reflected in a Certificate of Determination (COD) made by the Commission. Among other things, there was an Award for the Respondent with respect to the neck / cervical spine and left shoulder.

On 21 October 2021, the Appellant made a claim for lump sum compensation, inclusive of assessments for the cervical spine and left shoulder. The Respondent denied liability based on the Awards in the previous COD dated 1 July 2021. The dispute came before Senior Member Beilby who determined in a COD dated 21 July 2022 that the cervical spine and left shoulder could not be referred to a Medical Assessor due to the previous Awards. The Appellant appealed this decision.

Grounds of Appeal

The Appellant brought the following grounds of appeal:

1. Error of law by determining that the Appellant was estopped by either res judicata or issue estoppel from claiming lump sum compensation in respect of the cervical spine and left shoulder due to the COD dated 1 July 2021;
2. Error of law by failing to understand, consider and determine the Appellant’s submissions, either properly or at all, and\
3. Error of law by failing to give any or any adequate reasons in support of her COD.

Decision

In regard to the first ground, Deputy President Elizabeth Wood (DP Wood) stated the fact that the relief sought was different from that in the earlier proceedings did not prevent an estoppel arising. Whether or not the Appellant suffered an injury to the cervical spine or left shoulder was a foundational necessity to an entitlement to which the Appellant was seeking.

The Appellant submitted that Anshun estoppel did not arise as the Appellant acted reasonably in the earlier proceedings. However, DP Wood highlights that the Respondent did not raise or rely upon Anshun estoppel as a defence. As Senior Member Beilby did not consider Anshun estoppel to apply, she could not have fallen into error.

Under this ground of appeal, the Appellant also challenged Senior Member Beilby’s decision that the question was not a medical dispute under 319 of the Workplace Injury Management and Workers Compensation Act 1998. DP Wood did not agree with the Appellant’s submissions, stating at [54]

“Whether the appellant suffered injuries to his cervical spine and left shoulder were issues for determination wholly within the jurisdiction of the Member when the 2021 consent orders were made, and whether those consent orders created an estoppel disentitling the appellant to compensation was an issue well within the jurisdiction of the Senior Member in these proceedings.”

In both proceedings, the Appellant relied upon the case of Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine) to submit that issue estoppel only applies to ‘ultimate’ facts and not ‘mere evidentiary facts’. DP Woods notes that in her decision, Senior Member Beilby considered this issue and found that Hine was not relevant to the current dispute. DP Wood agreed that the Hine could be distinguished from the current matter. DP Wood considered that the Senior Member did not fall into error in her determination. Ground One of the appeal failed.

In dealing with Ground Two, DP Wood highlights that the Senior Member distinguished Hine from the current matter, discussed the Commission’s jurisdiction and adequately considered the Appellant’s submission regarding issue estoppel. DP Wood determined that the Appellant’s submissions regarding Anshun estoppel had no relevance as the issue was not raised. DP Wood also found that Ground Two fails.

Ground Three was intrinsically linked to the previous grounds of appeal. DP Wood was satisfied that the Senior Member’s reasons were “more than adequate to discharge her obligation to articulate the essential grounds upon which the decision rests and to fulfil her statutory duty to lawfully and fairly determine the matter.” Ground Three also failed.

Having found that all three of the appeal grounds failed, DP Wood confirmed the COD dated 21 July 2022.

Implications

This matter highlights an interesting set of facts in which estoppel, an issue not commonly litigated in workers compensation, was found to apply. This case indicates that the finality of proceedings will be a significant factor in workers compensation matters. It is also an important reminder to pay close attention when Awards are given or injuries determined in prior proceedings as this may preclude future compensation.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 8297 5900 or (02) 4929 9333.