Estoppel is a long-established principal in workers compensation cases that precludes a party to a proceeding denying to the contrary an issue of fact or law that was already established in the previous proceedings.

Introduction

Estoppel is a common law principle that prevents a party to bring previously determined issues re-agitated. The fundamental basis of estoppel is finality that is judicially resolved matters are not to be re-opened except in limited circumstances.

In workers compensation matters, its a consent order or an award gives rise to an estoppel in subsequent proceedings between the same parties. This has been considered in a number of proceedings in the Personal Injury Commission. Let’s look at the matter of Inner West Council v BFZ [2023] NSWPICPD 62

Inner West Council v BFZ [2023] NSWPICPD 62

The worker suffered a psychological injury during the course of the employment. On 27 May 2020, Consent Orders were issued. The appellant agreed to pay the worker:

1. A closed period of weekly benefits (18.03.2020 to 26.05.2020) with an award for the respondent thereafter; and
2. Section 60 Expenses up to $2,000 with an award for the respondent thereafter.

In 2022, the workers claimed lump sum compensation under section 66 of the 1987 Act, but the appellant disputed the claim. The worker argued that the appellant was estopped from denying liability because of the 2020 Consent Orders.

The Principal Member Bamber found that there was an estoppel, and she remitted the dispute to the President for referral to an AMS.

The respondent lodged an appeal and said that the Principal Member erred as follows:

1. In determining that it was estopped from disputing liability.
2. In referring the s66 dispute to the President for referral to an AMS

Leave was granted to appeal by Acting Deputy President Nomchong SC. She allowed the appeal and remitted the matter to another member for re-determination.

In this instance, the parties were not stopped to making a claim for s66 of the 1987 act because s66 is a completely different issue to what it was decided in the earlier proceedings of 2020.

The relevant principal take from the above matters are:

1. Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to  re-open that issue.
2. Estoppel is to be applied strictly.
3. Estoppel will only apply to prevent assertion in later proceedings of the precise matter of fact or law that has already been necessarily and directly decided in the earlier decisions.

There are three strict conditions for an issue of estoppel to be applied:

• The first decision was final
• The same question has been decided, and
• The matter involved the same parties, or at least parties with the same legal interest.

In this matter of BFZ, Principal member needed to satisfy what issues were determined in 2020, and what matters were in dispute now. Based on these factors the principal member recognised this and referred to the authorities.

However, the only crucial factor to determine in this matter was the nature of the injury whether it was work-related. Injury as per 1987 act means both the event that caused it and the pathology arising from it.

The fact that principal member found that there was an evolution over time into a different type of psychopathology necessarily meant that there can be no issue of estoppel.

Therefore, it is a matter for a merit consideration as to whether there were other causative incidents or events in workers’ life since the 2020 Determination.

In Seaib v Hays Personnel Services (2008), it was established that res judicata estoppel created by a consent award for an employer on a weekly benefits or medical expenses for section 60 the estoppel principal operates up to date it is made. It does not eliminate future rights.

Further, a consent award does not oblige Personal Injury Commission in subsequent proceedings to take into account factual position described in the consent award as a starting point in the fact of further process. When engaging in fresh fact-finding process, it is always appropriate to have regard to admissions flowing from the earlier consent award, and the presumption of continuation.

Anshun Estoppel

This type of estoppel is applicable in matters where an estoppel that prevents a party from making a claim which should have been pursued by that party in earlier proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).

We take you to the matter of One Steel Reinforcing Pty Ltd t/as Liberty OneSteel Reinstructing v Dang [2022] NSWPD 32 to explain the preposition of Anshun estoppel.

On 24 July 2019, Consent Orders were created as below:

• Amended the ARD to claim weekly benefits from 02 November 2016
• Awarded the worker a closed period of weekly payments from 25 November 2016 to 02 July 2019 with an award for the respondent thereafter;
• Awarded section 60 expenses with an award for the respondent thereafter.

This consent orders were created for weekly payments and medical expenses. Later, the worker’s injury aggravated and needed further treatment. The worker on 1 December 2020 sought approval from the appellant for an MRI scan.

The appellant refused the decided that the worker has not entitlement to section 60 of the 1987 because of the earlier consent order.

Further, the appellant disputed the claim and decided that the worker was prevented from making this claim “as it was based on medical evidence that existed at the time of the prior proceedings and was not disclosed”.

The worker then filed an ARD that claimed section 60 including the cost of the MRI scan and compensation under section 66 of the 1987 Act.

The Senior member Capel held that:

1. The worker was not estopped from brining this claim; and
2. The appellant was liable for the compensation claimed.

The appellant appeal and argued that the Senior member erred as follows:

1. In law, as to the nature of an Anshun estoppel.
2. In law, by failing to exercise his discretion to apply the Anshun principles to the case;
3. In fact, by accepting that the worker only decided not to proceed with surgery in 2021;
4. In law, by taking into account an irrelevant consideration.

The matter then went to the Deputy President Wood, who dismissed the appeal on the following grounds:

1. Making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceedings can constitute an abuse of process even where the earlier proceedings might not have given rise to estoppel.
2. The worker could only make one section 66 claim and in 2019 the evidence indicated that he had not made a final decision about potential surgery.
3. The Senior Member held that the worker only decided against having surgery in 2021 and this was consistent with the evidence.

This clarifies the concept of Anshun principal in a nutshell. The fact that the new proceedings bring new pleadings for the purposes of workers compensation act 1987 there is no relevance of earlier proceedings that could prevent the matter.

The decision in Dang is the proper proposition where the disputes relates to section 60 of the expenses, and Anshun estoppel will only be found if it was unreasonable that the disputed claim was made at an earlier time.

In other words, the mere fact that a claim could have been made at an earlier time does not mean that it should have been made at an earlier time.

If you are involved in an estoppel issue or your claim has been stuck because of the estoppel issue see no other than Sher Afgan at Sher legal who can assist you progressing your claim to the next stage.