Bi-Lo Pty Ltd v Brown

[2013] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66
APPELLANT:	Bi-Lo Pty Ltd
RESPONDENT:	Michelle Ellen Brown
INSURER:	Self-insured
FILE NUMBER:	A1-12578/12
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	27 August 2013
DATE OF APPEAL DECISION:	27 November 2013
SUBJECT MATTER OF DECISION:	Effect of complying agreement made under s 66A of the Workers Compensation Act 1987; whether complying agreement created an issue estoppel; aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; assessment of expert evidence in the Commission; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; need for corroboration; application of principles in Chanaa v Zarour [2011] NSWCA 199
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Michael Evers & Co
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 27 August 2013 is confirmed. 2.     The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal raises two main issues.

2. First, the effect of a complying agreement, in which it was agreed that the worker suffered a four per cent whole person impairment as a result of an injury to her right upper extremity, and whether that agreement created an estoppel that prevented the worker from claiming lump sum compensation for injuries to other body parts.

3. Second, if no estoppel arose from the complying agreement, whether the worker suffered aggravation injuries to several body parts, due to her strenuous and repetitive duties with the employer, in circumstances where it was conceded that she had made no contemporaneous complaint of symptoms in those parts of her body to several medical practitioners.

BACKGROUND

1. Apart from breaks to have her five children, the respondent worker, Michelle Brown, has worked as a meat packer for the appellant employer, Bi-Lo Pty Ltd (Bi-Lo) (and its various predecessors in title), from about 1978 until mid-2010. Her last period of employment commenced at Bi-Lo’s store at Elermore Vale in 2006. Her duties were strenuous and involved constant repetitive wrapping, packing, bending, reaching, and pushing trolleys.

2. Ms Brown’s case was that she injured her cervical spine, right shoulder, right arm, left elbow, lumbar spine, right hip, left shoulder, and suffered a psychological injury due to repetitive bending, carrying, lifting, pulling, pushing and twisting associated with her duties at Bi-Lo. Essentially, her case was that she had suffered an aggravation, acceleration, exacerbation or deterioration of a disease to which her employment was a substantial contributing factor (ss 4(b)(ii) and 9A of the Workers Compensation Act 1987).

3. Ms Brown noticed pain in her right wrist in about September 2008 and, as those symptoms progressed, she was given light duties in or about November of that year. She had surgery on her right wrist on 16 June 2009, performed by Dr Myers, a specialist hand surgeon. She said that, prior…