DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Gimis v Tweed Shire Council [2023] NSWPICPD 44	
		
APPELLANT:	Andrew Gimis	
		
RESPONDENT:	Tweed Shire Council	
		
INSURER:	StateCover Mutual Limited	
		
FILE NUMBER:	A1-W2144/22	
		
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood	
		
DATE OF APPEAL DECISION:	1 August 2023	
		
ORDERS MADE ON APPEAL:	1.	The Senior Member’s Certificate of Determination dated 21 July 2022 is confirmed.	
		
CATCHWORDS:	WORKERS COMPENSATION – issue estoppel and res judicata – Blair v Curran [1939] HCA 23 discussed and applied; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 discussed and distinguished – where the relief sought is different from that sought in the earlier proceedings – Cassegrain v Gerard Cassegrain & Co Pty Limited [2013] NSWCA 454 applied – jurisdiction of the Personal Injury Commission to determine “injury” pursuant to s 4 of the Workers Compensation Act 1987– Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 applied	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr D Steiner, counsel	
	Main Lawyers	
		
	Respondent:	
	Mr J Catsanos SC, counsel with Mr D Saul, counsel	
	Kemp & Co Lawyers	
		
DECISION UNDER APPEAL		
		
SENIOR MEMBER:	Ms E Beilby	
		
DATE OF SENIOR Member’s DECISION:	21 July 2022	

INTRODUCTION AND BACKGROUND
1.	Mr Andrew Gimis (the appellant) suffered an injury in the course of his employment with Tweed Shire Council (the respondent). The injury was said to be as a result of his employment driving a lawn mower in the period between 1 March 2019 and 30 September 2020. He alleged injury to his back, neck and left shoulder as well as psychological injury. He made a claim for weekly payments which was denied by the respondent. The respondent asserted that the alleged injuries did not arise out of or in the course of the appellant’s employment.
2.	The appellant commenced proceedings in the Personal Injury Commission (the Commission) in March 2021, seeking weekly compensation entitlements and treatment expenses. 
3.	The dispute came to arbitration before a non-presidential member of the Commission on 1 July 2021. The matter resolved by agreement between the parties and Member Peacock issued a Certificate of Determination as follows:
“CERTIFICATE OF DETERMINATION – CONSENT ORDERS
Matter Number:	W562/21	
[Appellant]:	Andrew Gimis	
Respondent:	Tweed Shire Council	
Date of Determination:	1 July 2021	
Member:	Jane Peacock	
By and with the consent of the parties, the Commission determines:
1.	The [appellant] has leave to amend the Application to Resolve a Dispute to claim primary psychological injury as a result of the nature and conditions of employment.
2.	Award for the respondent in respect of primary psychological injury.
3.	Award for the respondent in respect of allegation of secondary psychological injury.
4.	Award for the respondent in respect of allegation of injury to the neck/cervical spine.
5.	Award for the respondent in respect of allegation of injury to the left shoulder.
6.	The balance of the proceedings be discontinued.
NOTATIONS
1.	Respondent to pay voluntary weekly compensation of $400 per week from 4 February 2021 to date and continuing.
2.	Respondent to pay voluntary s 60 expenses in respect of treatment to the back/lumbar spine upon production of accounts, receipts or Medicare charge.
3.	Upon receipt of above compensation the [appellant] will have received all his past weekly compensation entitlements and s 60 entitlements to date.”
4.	On or about 21 October 2021, the appellant made a claim for 28% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), initially in respect of the permanent impairment of his lumbar spine. The assessment of 28% whole person impairment upon which his claim was based, however, comprised of 10% of the lumbar spine, 18% of the cervical spine and 6% of the left upper extremity (left shoulder). The respondent denied liability on the basis that the assessment of the lumbar spine was 10%, which was below the necessary threshold prescribed by s 66(1) of the 1987 Act. In addition, the respondent denied liability on the basis that the Certificate of Determination dated 1 July 2021 recorded awards for the respondent in respect of the cervical spine and the left shoulder.
5.	The appellant commenced further proceedings in the Commission, in April 2022, relying on the assessments of the whole person impairment of the cervical spine and left upper extremity, in addition to the assessment of impairment of the lumbar spine. 
6.	The dispute came before a non-presidential senior member of the Commission, Senior Member Beilby, who in a Certificate of Determination dated 21 July 2022, declined to refer the cervical spine and left upper extremity for assessment by a Medical Assessor because of the previous awards for the respondent in respect of those body parts. The Senior Member also declined to refer the lumbar spine for assessment because the claim for whole person impairment was below the threshold required by s 66(1) of the 1987 Act. The Senior Member dismissed the claim.
7.	The appellant appeals that decision.
ON THE PAPERS
8.	Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
9.	Both parties have indicated that they are content to have the appeal determined on the basis of the documents and their submissions and that an oral hearing is not required.
10.	I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
11.	There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. 
THE SENIOR MEMBER’S REASONS
12.	The Senior Member provided a detailed summary of the history of the appellant’s claims and reproduced the consent orders entered in the previous proceedings. She identified that the issue in dispute was whether the appellant could make a claim in respect of his whole person impairment despite the terms of the agreement in the previous proceedings.
13.	The Senior Member noted that the respondent submitted that the current allegations of injury were identical to those made in the prior proceedings, save for the prior allegation of psychological injury, and that the appellant was estopped from bringing a claim for permanent impairment because of the orders made in the prior proceedings. 
14.	The Senior Member further noted that the appellant submitted that no issue estoppel or res judicata arose because:
(a)	the current proceedings were in respect of a claim for lump sum compensation, which is different to the prior claim for weekly payments of compensation;
(b)	the issue of the aetiology of the appellant’s cervical spine and left shoulder injuries was a medical dispute within the meaning of s 319 of the 1987 Act, and
(c)	therefore, the resolution of the earlier proceedings about weekly payments and medical expenses could not bind the parties, or the Medical Assessor in a medical dispute.
15.	The Senior Member referred to the Court of Appeal decision in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine, relied upon by the appellant, which the appellant asserted was authority to say that an estoppel did not apply in the current case. The Senior Member referred to the circumstances in Hine, which involved earlier consent findings that the worker had recovered from the effects of the psychological injury, following which the worker made a claim in respect of her whole person impairment. The Senior Member observed that the issue in Hine was in relation to a “medical dispute” about the degree of whole person impairment that results from an injury, which she said was a matter “wholly within the jurisdiction of the approved medical specialist” or the Appeal Panel on appeal. The Senior Member further observed that, in the circumstances of that case, an issue estoppel did arise. 
16.	The Senior Member considered that the decision in Hine was factually different to the present matter and was therefore not directly relevant. She pointed out that, in the present matter, there was no referral to a Medical Assessor because there was in place an agreement in the form of the Consent Orders that there was no “injury” within the meaning of s 4 of the 1987 Act. The Senior Member observed that a finding of injury pursuant to s 4 of the 1987 Act was not a medical dispute as provided for in s 319 of the 1998 Act, which was confirmed by s 65 of the 1987 Act. She was of the view that s 65 of the 1987 Act made it clear that the degree of impairment which is to be assessed is one that “results from the injury.” She reasoned that it was the domain of the Medical Assessor to assess the impairment once an injury was established. The Senior Member said that a determination of “injury” was a matter for a Commission member, and not a Medical Assessor. 
17.	The Senior Member noted that the appellant also submitted that it was entirely reasonable for him to have resolved his earlier claim in the most financially advantageous manner possible. The Senior Member referred to the appellant’s assertion that, at the time of resolving the earlier claim, he was faced with a complicated paradox. That is, in the event that he had succeeded in that claim:
(a)	payments of weekly compensation at the rate of $400 per week from 21 February 2021 were within the range the Commission would order, regardless of whether the injuries claimed were work-related, and
(b)	even if he established all his injuries were work-related, the Commission may have awarded him less than the $400 per week. 
18.	The Senior Member further noted that the appellant submitted that it was understandable for him to accept the offer because even if he proceeded to arbitration hearing on all injuries and succeeded, he may have been financially disadvantaged. The Senior Member observed that such a situation frequently occurs in the Commission and the amount of $400 per week must have been of some benefit to the respondent in the proceedings. The Senior Member said that the difficulty in her mind was the awards for the respondent which offset the attraction of the offer of $400 per week. The Senior Member said that she did not consider that it was relevant, or there was any merit to the submission, that the appellant acted reasonably in resolving his prior claim on a compromise basis. 
19.	The Senior Member noted the appellant’s claim for the lumbar spine was 9% whole person impairment, based on an assessment of 10% less 1% deduction in respect of a pre-existing condition pursuant to s 323 of the 1998 Act. She further noted that there had been agreement between the parties that if the appellant’s argument against an estoppel arising was unsuccessful, there would be no jurisdiction to refer the claim to the Medical Assessor. The Senior Member concluded that there was no work for the Commission to do and she consequently dismissed the claim. 
20.	The Certificate of Determination issued on 21 July 2022 records:
“The Commission determines:
1.	The claim is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020.” 
GROUNDS OF APPEAL
21.	The appellant brings three grounds of appeal, alleging error of law on the part of the Senior Member as follows:
(a)	Ground One: 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 because of the orders recorded in the Certificate of Determination dated 1 July 2021;
(b)	Ground Two: by failing to understand, consider and determine the appellant’s submissions, either properly or at all, and
(c)	Ground Three: by failing to give any or any adequate reasons in support of her Certificate of Determination. 
LEGISLATION 
22.	Section 319 defines a “medical dispute” as follows:
“319 	Definitions
In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a) 	the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) 	the worker’s fitness for employment,
(c) 	the degree of permanent impairment of the worker as a result of an injury,
(d) 	whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) 	the nature and extent of loss of hearing suffered by a worker,
(f) 	whether impairment is permanent,
(g) 	whether the degree of permanent impairment of the injured worker is fully ascertainable.”
23.	Section 65 of the 1987 Act relevantly provides:
“65 	Determination of degree of permanent impairment
(1) 	For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
…”.
SUBMISSIONS
As to Ground One
The appellant’s submissions
24.	The appellant submits that no issue arises in this case in respect of res judicata or issue estoppel and he should be entitled to pursue his claim for permanent impairment because:
(a)	the 2021 Certificate of Determination related to proceedings for weekly payments of compensation and medical expenses and no claim for lump sum compensation was made at the time;
(b)	in accordance with Hine, issue estoppel only applies to “ultimate facts” and not to “mere evidentiary facts” and an ultimate fact can be determined by a court or tribunal or by admission or agreement for the purpose of determining the matter directly in issue;
(c)	the relevant findings recorded in the 2021 Certificate of Determination were not ultimate facts, so that no estoppel arises;
(d)	in any event, not all final decisions of the ultimate issues by a subordinate tribunal are binding, citing Cachia v Isaacs, and
(e)	issue estoppel only arises in respect of matters determined where the court or tribunal has jurisdiction to determine those matters at issue between the parties for all purposes, which is not necessarily the case in inferior courts or tribunals.
25.	The appellant submits that the Commission did not have jurisdiction to determine the permanent impairment dispute in the earlier proceedings because no s 78 Notice had been issued disputing the claim and it was not pleaded in the Application to Resolve a Dispute. The appellant asserts that the Commission’s jurisdiction in those proceedings was limited to a determination of the claim for weekly payments and treatment expenses, so issue estoppel does not arise.
26.	The appellant submits that, in any event, an estoppel does not arise in the present matter. The appellant refers to McColl JA’s observations (with Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd, namely that:
(a)	an Anshun estoppel is based upon an evaluative assessment of what a litigant could reasonably be expected to do in the prior proceedings;
(b)	it requires a strict approach to the inquiry as to whether there exists the identity between the proceedings;
(c)	it requires more than that the proceedings are closely related;
(d)	a technical approach is not helpful;
(e)	the doctrine is concerned with substance and not form, and
(f)	shutting out a claim on the basis that it ought to have been brought with an earlier claim is a serious step and should not be exercised unless there has been a scrupulous examination of all the circumstances. 
27.	The appellant refers to the decision of Geary v UPS Pty Ltd, in which Phillips P concluded that a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded his cause in earlier proceedings. The appellant further refers to Tomlinson v Ramsey Food Processing Pty Ltd, which the appellant says is authority to say that the test is one of reasonableness, and a party cannot assert a claim or issue that is so connected with the subject matter of the prior proceedings that it was unreasonable for the party not to have raised the issue in those earlier proceedings. 
28.	The appellant repeats his submissions made to the Senior Member (recorded by the Senior Member and summarised by me at [14] above) and asserts that it was utterly reasonable and sensible at the time for him to resolve his claim because of the “complex paradox” that he faced. The appellant submits that the claim he now seeks to agitate is for a different statutory entitlement, that is, a claim for permanent impairment, and thus this case can be distinguished from Geary. The appellant submits that, in the circumstances, no Anshun estoppel arises in this case.
The respondent’s submissions
29.	The respondent asserts that the appellant’s submissions are simply a repetition of the submissions made to the Senior Member at arbitration. The respondent says that there is no issue that an estoppel can arise from orders made in the Commission even if they were consent orders. The respondent refers to the observations of McColl JA in Habib that orders made by consent between the parties can create an estoppel and could be considered in order to determine whether subsequent proceedings could lead to conflicting judgments. The respondent also refers to Dixon J’s observations in Blair v Curran, discussed below.
30.	The respondent submits that, in this case, the starting point is that the consent orders expressly recorded an award for the respondent in respect of the allegation of injury to the cervical spine and left shoulder. That is, the indispensable conclusion was that the appellant failed to establish that the workplace events relied upon caused such injuries. The respondent disputes that those findings constituted “evidentiary facts” and says they were unarguably ultimate facts that formed part of the cause of action being pursued. The appellant points out that the injuries relied upon in these proceedings are identical to the injuries that were determined in the respondent’s favour in the prior proceedings, and it is irrelevant that the former claim was for weekly payments and treatment expenses and the current one is for lump sum compensation. The respondent submits that establishing the injuries is a fundamental ingredient to both causes of action.
31.	The respondent again refers to Blair v Curran, in which Dixon J observed:
“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.”
32.	The respondent asserts that to allow the appellant to now litigate the injuries to his cervical spine and left shoulder would be contrary to the principles enunciated in Habib and Blair v Curran, would be contrary to the finality of litigation and would leave open the possibility of competing judgments. The respondent says that:
“As the authorities make clear, the enquiry is directed towards ultimate facts forming ingredients in the cause of action. Clearly the cause of action, namely relief under the 1987 Act, is the same in both the earlier and the present proceedings. Thus, estoppel applies to preclude re-litigation of those facts previously determined.” (emphasis in original)
33.	The respondent submits that on the appellant’s case, none of the fundamental ingredients of a cause of action, such as questions of “injury”, “worker’, or “journey” claims in respect of different benefits, would be estopped once determined by consent or otherwise. The respondent describes as “misplaced” the appellant’s submission that an estoppel is not available because the lump sum claim was not justiciable at the time of the earlier proceedings.
34.	The respondent submits that consideration of an Anshun estoppel does not arise and was not an issue requiring the Senior Member’s determination. The respondent says that it relied upon the doctrines of issue estoppel and res judicata, or cause of action estoppel, and, in accordance with the reasoning in Habib, Dow Jones & Co Inc v Gutnick and Jackson v Goldsmith, the appellant is precluded from re-litigating the same cause of action in these proceedings. The respondent further refers to Roche DP’s conclusions in Manpower Pty Ltd v Harris that the legal effect of orders made by consent is not diminished and they have the same effect as a determination reached by the Commission after a contested hearing.
35.	The respondent says that the appellant’s submissions about his motivation in resolving his earlier claim are not relevant or appropriate. 
As to Ground Two
The appellant’s submissions
36.	The appellant asserts that, while the Senior Member referred to his submissions, she erred in law by failing to give proper, or any considerations to his submissions. He submits that it is clear from her reasons that there was no consideration, evaluation or analysis of those submissions, or the authorities relied upon, with the exception that the Senior Member did comment that she did not understand the merit or the relevance of whether the appellant acted reasonably in resolving his claim for weekly payments. The appellant asserts that it is relevant to a determination of whether an Anshun estoppel arises, that it was apparent that the Senior Member failed to understand the submissions and that she had failed to consider them.
The respondent’s submissions
37.	The respondent submits that it is clear that the Senior Member succinctly addressed the appellant’s submission, which the respondent says was that, because the earlier proceedings were in respect of a claim for weekly payments and treatment expenses, an estoppel did not arise in the present lump sum claim. The respondent submits that the Senior Member considered and rejected that claim on the basis that there were consent orders in the earlier proceedings making awards for the respondent in respect of the allegations of injury. Further, the respondent says that the Senior Member referred to the appellant’s reliance on Hine and distinguished that case because it did not involve a previous finding as to injury. 
As to Ground Three
The appellant’s submissions
38.	The appellant asserts that the Senior Member failed to give any or any adequate reasons for her determination because she failed to consider, analyse, and either accept or reject his submissions. The appellant refers to s 294(2) of the 1998 Act, which requires a member to give a brief statement of reasons for his or her decision. The appellant says that r 78 of the Personal Injury Commission Rules 2021 provides that the reasons should include the findings of material facts, and the material relied upon to make those findings, an understanding of the applicable law, and the reasoning process that led to those conclusions. Further, the reasons must be sufficient to make the parties aware of the Commission’s view about each party’s case. 
39.	The appellant relies upon the reasoning of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd that the reasons do not have to be lengthy or elaborate but it is necessary that the essential grounds upon which the decision rests are articulated. The appellant also refers to the observations of Roche DP in Singh v FTW Products Pty Ltd, and submits that the Senior Member’s failure to consider and analyse his submissions and insufficiency of her reasons indicates that she has failed to fulfil her statutory duty to lawfully and fairly determine the matter. 
The respondent’s submissions
40.	The respondent contends that the appellant’s complaint simply quotes authority and then asserts that the Senior Member failed to deal with his submissions, without pointing to error. The respondent refers to McColl JA’s observations in Pollard v RRR Corporation Pty Ltd that a judge is not expected to spell out in detail the reasoning process that leads to a conclusion but is required to disclose the reasoning critical to the issues between the parties. That is, the reasons must provide the parties with an understanding of the decision and why one case was preferred over the other. 
41.	The respondent asserts that the Senior Member’s reasons were clearly adequate and the reasons for her preference of one case over the other was apparent. The respondent submits that, in any event, even if the Senior Member did fail to provide adequate reasons (which the respondent denies), the Senior Member’s decision would be affirmed in any event because it is manifestly correct and discloses no error. 
THE RELIEF SOUGHT 
42.	The appellant submits that the Commission has never made a determination in respect of the issue of injury to his cervical spine and the left shoulder. The appellant submits that if the matter is remitted to a non-presidential member for determination, the respondent will have an opportunity to dispute those injuries so that it is in the interests of justice to allow the appeal and for a remittal to occur. 
43.	The respondent submits that the appeal should be dismissed.
CONSIDERATION 
Ground One: 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 because of the orders recorded in the Certificate of Determination dated 1 July 2021
44.	The appellant submits that, for the following reasons, he ought to be entitled to bring a claim for permanent impairment:
(a)	no claim for a lump sum had been made in the earlier proceedings;
(b)	issue estoppel only applies to ultimate facts and not to “mere evidentiary facts”;
(c)	the orders in the Certificate of Determination issued in 2021 were not ultimate facts, so no estoppel arises;
(d)	not all final decisions made by a tribunal are binding or create issue estoppels, and
(e)	issue estoppel extends to matters that are determined only if the tribunal has jurisdiction to determine those matters. 
45.	The fact that the relief sought in these proceedings is different from that sought in the earlier proceedings does not operate to prevent an estoppel arising. The relevant facts determined in the earlier proceedings were the awards for the respondent in relation to the allegations of injury to the appellant’s cervical spine and left shoulder. A determination of whether the appellant suffered an injury to one or both of those body parts is an indispensable factual foundation necessary to entitle the appellant to his relief sought, whether it is a claim for weekly payments or a lump sum claim, or some other benefit attached to an injury.
46.	In Blair v Curran, Dixon J 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. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
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.”
And:
“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”. 
47.	There is no issue raised as to whether consent orders in the Commission can create an estoppel or that not all decisions made in the Commission are final and binding. However, in the prior proceedings, the appellant relied upon allegations of injury to the cervical spine and left shoulder as the threshold foundation that, if found in his favour, would lead him to an entitlement for compensation. The present proceedings concern identical injuries as the foundations for further entitlements. Those foundations are legally indispensable and are undoubtedly determinations of ultimate facts. Noting Dixon J’s observations, to agitate the issue of those injuries having occurred amounts to an assertion that the former findings of the Commission were wrong.
48.	The appellant asserts that, in the earlier proceedings, the Commission did not have jurisdiction to determine the permanent impairment claim. That is undoubtedly correct, however that fact is irrelevant. The Commission clearly had jurisdiction to determine the question of injury in circumstances where injury was a justiciable issue for determination in those proceedings. The determinations referrable to injury to the cervical spine and left shoulder are the impediments that the appellant now faces.
49.	The appellant submits that an Anshun estoppel does not arise in the present matter because the appellant acted reasonably in resolving the earlier proceedings. The appellant reproduces a parade of authority in support of that assertion. A review of the notice issued pursuant to s 78 of the 1998 Act, the parties’ written submissions to the Senior Member and the transcript of oral submissions discloses that the respondent never raised or relied upon the doctrine of Anshun estoppel as a defence in this claim. Additionally, the Senior Member did not find that an Anshun estoppel applied, so that she could not have fallen into error. 
50.	I note also that the appellant relies upon Tomlinson as authority to say that the test in relation to estoppel is one of reasonableness, and a party cannot assert a claim or issue that is so connected with the subject matter of the prior proceedings that it was unreasonable for the party not to have raised the issue in those earlier proceedings. Tomlinson, which involved an issue as to whether the parties in both proceedings were privy in interest, is not authority for the proposition put forward by the appellant. 
51.	The appellant challenges the Senior Member’s finding that the question for determination was not a “medical dispute” within the meaning of s 319 of the 1998 Act. The appellant submits that the issue of the aetiology of his cervical spine and left shoulder is a medical dispute and thus the Commission does not have jurisdiction to determine the issue. 
52.	In Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd, Emmett JA said:
“It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987 Act]. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury.” 
53.	There are also a number of Presidential decisions in the Commission, holding that questions of ‘injury’, ‘substantial contributing factor’ and causation are matters for a decision by a member of the Commission.
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. 
55.	The Senior Member reasoned:
“The decision of Hine is not directly relevant to this dispute. In the present factual matrix, there is no referral as there has [been] an agreement or Consent Order that there is no ‘injury’. It must be observed that the consent orders use the words ‘injury’. The ordinary meaning of this must refer to an injury pursuant to s 4 of the 1987 Act. 
Having considered that definition, a finding of injury, in the sense of s 4 of the 1987 Act, is not one which is covered by the definition of a medical dispute as provided by [s 319] of the [1998 Act].
This is also confirmed by s 65 of the 1987 Act which provides: 
‘(1) 	For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.’
I therefore cannot agree with the [appellant’s] submission. Whilst the Commission has exclusive jurisdiction to determine the [appellant’s] disputed claims, the question of primary injury is one which is reserved for Members of the Commission to make [a] determination. Once a Member has made a finding that there has been in fact an injury pursuant to s 4 (or there has been agreement) then the matter is referred to a Medical Assessor for assessment. Unless a finding or agreement is made that an injury has occurred there is no referral to a Medical Assessor.
It is quite clear by the language used in s 65 of the 1987 Act, that the degree [of] permanent impairment … to be assessed is one that ‘results from an injury’. That is, it is the domain of the Medical Assessor to assess impairment, once it has been established that an injury has occurred. Simply put, the determination of ‘injury’ pursuant to s 4, is the domain of the Member not a Medical Assessor.” 
56.	The Senior Member was correct in her observations and determination. 
57.	The appellant relies on Hine to submit that issue estoppel only applies to “ultimate” facts and does not extend to “mere evidentiary facts”. Hine concerned a claim for permanent impairment, which was brought after prior proceedings in which an arbitrator of the former Workers Compensation Commission had made a finding that the worker had recovered from the effects of the injury. The Court determined that an estoppel did not arise because the later claim was in respect of a claim for permanent impairment (a medical dispute within the meaning of s 319(c) of the 1998 Act). The Court determined that the Commission did not have jurisdiction in the earlier proceedings to make a finding that bound the then Approved Medical Specialist in the assessment of whole person impairment.
58.	In the current matter, the Commission clearly had jurisdiction in the earlier proceedings to make the findings in respect of the question of injury. An entitlement to a lump sum pursuant to s 66 of the 1987 Act rested on whether the appellant suffered injury. The decision in Hine is plainly distinguishable. 
59.	It is clear from the passage quoted at [55] above that the Senior Member dealt with this issue. The Senior Member’s determination that the dispute before her was not a “medical dispute” was well reasoned and accurate.
60.	The appellant has failed to establish that the Senior Member erred in her determination that the appellant was estopped from bringing a lump sum claim because of the earlier consent orders. This ground of appeal fails.
Ground Two: Error of law by failing to understand, consider and determine the appellant’s submissions, either properly or at all
61.	The appellant asserts that the Senior Member failed to consider and deal with his submissions. The submissions to which he refers are identified by him as those set out in [3.1.1] to [3.1.5] and [3.2] of his written submissions to the Senior Member. The submissions made in [3.1] to [3.1.5] are summarised by me at [44(a)] to [44(e)] above. 
62.	The Senior Member referred to the appellant’s submission that the claim before the Commission is for lump sum compensation, which is a different claim to the former proceedings. She noted the appellant’s reliance on Hine. The Senior Member proceeded to distinguish Hine, determined that the issue before the Commission was not a “medical dispute” and discussed the Commission’s jurisdiction to make orders in relation to whether there was an injury within the meaning of s 4 of the 1987 Act. It cannot be said that the Senior Member failed to consider and deal with the appellant’s submissions as to why an issue estoppel did not apply. 
63.	The Senior Member summarised the appellant’s submissions in relation to the law applicable to an Anshun estoppel and provided reasons as to why she did not accept those submissions as relevant. The Senior Member did not fail to consider those submissions or fail to determine their relevance. Her perplexity as to their relevance is understandable. As mentioned earlier, there was no issue raised before the Senior Member that an Anshun estoppel applied.
64.	The appellant’s written submissions at [3.2] that his actions in accepting the prior settlement were reasonable (in this context, a test relevant only to an Anshun estoppel) have no relevance whatsoever and whether his actions were reasonable has no bearing on consideration of the establishment of an issue estoppel or res judicata. A member’s obligation to give reasons has to be considered in the context of the issues raised by the parties. If a matter is not raised, it is not an error not to refer to it. 
65.	I have dealt with the allegations relating to the application of an Anshun estoppel in Ground One. The Senior Member summarised the appellant’s submissions and provided reasons as to why she did not accept those submissions as relevant. As mentioned earlier, there was no issue raised before the Senior Member that an Anshun estoppel applied. 
66.	It follows that Ground Two of the appeal fails.
Ground Three: Error of law by failing to give any or any adequate reasons in support of her Certificate of Determination
67.	The appellant asserts that the Senior Member failed to give any or any adequate reasons for her determination because she failed to consider, analyse, and either accept or reject his submissions. I have discussed the appellant’s submissions that the Senior Member failed to consider and analyse his submissions under Ground Two above. I rejected the appellant’s assertion of error. Given that this ground is dependent upon the Senior Member’s purported failure to “consider” and “analyse” his submissions, this ground of appeal must also fail. In any event, the Senior Member’s reasons, partly reproduced at [55] above and summarised by me at [13] to [19] above, 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. 
68.	Ground Three of the appeal fails.
CONCLUSION
69.	The appellant has failed to establish error on the part of the Senior Member and the Senior Member’s Certificate of Determination is confirmed.
DECISION
70.	The Senior Member’s Certificate of Determination dated 21 July 2022 is confirmed.

Elizabeth Wood
Deputy President
1 August 2023