Don’t (E)stop ‘til You Get Enough

Dang v OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing [2021] NSWPIC 476

Worker Not Estopped from Relying upon IME Report Which was Available/ Not Disclosed in Previous Proceedings

The Applicant, Than Quoc Dang, sustained an injury to his back in the course of his employment with the Respondent, OneSteel Reinforcing Pty Ltd, deemed to have occurred on 25 September 2016. The Respondent was a self-insurer. Previous proceedings were commenced by the Applicant in 2019 for weekly compensation payments and medical expenses. In those proceedings, the Respondent consented to pay to the Applicant weekly benefits totalling $25,000.00 and medical expenses up to $5,500.00.  An Award was otherwise made for the Respondent.

On 1 December 2020 the Applicant sought approval to undergo an MRI scan to his back.  This was declined on the basis the Applicant had no further entitlement to medical expenses following the 2019 Consent Orders.  On 9 March 2020 the Applicant served a claim for lump sum compensation in respect of his back injury.  On 6 August 2021 a Section 78 Notice was served by the Respondent, disputing the claim for lump sum compensation noting that the Applicant relied on evidence that was available and not disclosed at the time of the previous proceedings.  It relied upon the principles in Port of Melbourne Authority v Anshun Pty Ltd and in Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 (“Anshun”).  The Applicant lodged an Application to Resolve a Dispute seeking medical expenses and lump sum compensation.

Issues for determination

The following issues were in dispute at Conciliation/Arbitration:

• Whether the Respondent was liable to pay for medical expenses claimed by the Applicant.
• Whether the Applicant was estopped from bringing a claim for lump sum compensation in respect of injury sustained to his back on 25 September 2016.
• Quantification of the Applicant’s entitlement to lump sum compensation.

Decision

The matter was heard by Member Glenn Capel who referred to Anshun noting that it considered whether the principles of res judicata and issue estoppel should be extended to matters that could and should have been determined in prior proceedings.  He noted it was stated in Anshun [at 37] “… that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”

Member Capel also referred to the case Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 in which it was stated that [at 24]:

“the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.”

He considered that these cases were Authorities for the proposition that where a matter relied upon in the subsequent proceedings is so relevant to the issues in the earlier proceedings, and it would have been unreasonable not to rely on it, then the offending party would be estopped from relying on the same matter in subsequent proceedings. He noted it was based on the principle of litigating the whole case at once and not in a piece-meal fashion, so as to avoid inconsistent outcomes and unnecessary costs.  He considered the question in the present case was whether the Applicant in refraining from making a claim for lump sum compensation at the same time as the claims for weekly compensation and medical expenses, constituted an abuse of process and was unreasonable.

Member Capel noted that at the time of the previous proceedings, the Applicant held two reports from Dr Giblin, one of which provided an assessment of 13% WPI “on the proviso that he is not having surgery within the next twelve months”.  At that stage the Applicant was still contemplating surgery which had been repeatedly recommended by one of her treating practitioners.  The Claimant was advised by his solicitors that he could only bring one claim for lump sum compensation, so he decided not to make a claim as he wanted to firstly consider his treatment options.  He had surgery in February 2021.

Member Capel noted that the decision to proceed with a claim for lump sum compensation is not one to be taken lightly.  He considered the Applicant had a valid reason for splitting his case, consistent with the principles of Anshun, noting his WPI may have increased following surgery.  Member Capel considered that the Respondent had made the forensic decision against qualifying an IME and as such, it could not be said that they were not afforded the opportunity to obtain medical evidence.  He stated that the Applicant’s reason for not litigating the lump sum claim in the previous proceedings was valid and outweighed any prejudice that the Respondent might have suffered.  As such, he was satisfied that the Applicant was not estopped from bringing his claim for lump sum compensation.

Member Capel ordered the Respondent to pay lump sum compensation in respect of 13% WPI in accordance with the Applicant’s evidence noting that it was not cost effective to refer the matter to a Medical Assessor and that, despite ample opportunity, the Respondent had not obtained a competing assessment of WPI.

Implications

The failure to disclose an IME report in previous proceedings, which is later relied on in further proceedings, is not necessarily an abuse of process.  Consideration should be given to whether the report was so relevant to the issues in the first proceedings that it would have been unreasonable to rely upon it in later proceedings. (The report relied on in this case related to an assessment of WPI and was not disclosed in previous proceedings relating to weekly compensation and medical evidence.)  At the time of these proceedings the Applicant was considering surgery and therefore chose not to pursue a claim for lump sum compensation as maximum medical improvement may not have been reached.  Member Capel found that this was reasonable; therefore, confirming that the Applicant bringing separate proceedings for weekly compensation and lump sum compensation for the same injury was not necessarily an abuse of process.

This case also serves as a reminder of the importance of obtaining a competing assessment of WPI where the assessment obtained by an opposing party is disputed.

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