CSR Limited v Gonzales - [2010] NSWWCCPD 118

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		CSR Limited v Gonzales [2010] NSWWCCPD 118
APPELLANT:		CSR Limited
RESPONDENT:		Carlos Da Jose Gonzales
INSURER:		CSR Limited
FILE NUMBER:		A1-2151/10
ARBITRATOR:	Mr C Messenger
DATE OF ARBITRATOR’S DECISION:		25 June 2010
DATE OF APPEAL DECISION:		5 November 2010
SUBJECT MATTER OF DECISION:		Section 352(2)(a) of the Workers Compensation Act 1987, monetary threshold; section 66A of the Workers Compensation Act 1987, complying agreement; estoppel by agreement
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	P K Simpson & Co
ORDERS MADE ON APPEAL:		The Arbitrator’s finding, orders and directions made in the Certificate of Determination dated 25 June 2010 are revoked and the following order is made in their place: “1. Order that there be an award for the respondent”. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

Mr Carlos Da Jose Gonzales, who is 47 years of age, commenced employment with CSR Limited (the appellant) in February 2005 as a machine operator. Mr Gonzales alleges that he was injured in the course of that work on 16 January 2006 as he was carrying out heavy lifting. It is alleged that the lifting incident caused injury to his head, abdomen, back, right leg, left leg, sexual organs, scarring and has caused him to suffer anxiety and/or depression.

Mr Gonzales experienced severe back and left leg pain following the injury and came under the care of Dr Kevin A Seex. The evidence before the Commission suggests that a claim made by Mr Gonzales in respect of workers compensation benefits was declined by the appellant in 2006. In the circumstances arrangements were made by Dr Seex to have Mr Gonzales admitted as a public patient to Nepean Public Hospital where on 21 September 2006 a left L4/5 microdiscectomy was carried out.
A dispute concerning entitlement to compensation benefits arose and proceedings were commenced in the Commission, being matter 16606/06 seeking orders in respect of weekly payments, lump sums and medical expenses. That matter came before the Commission in January 2007 at which time the parties reached agreement concerning Mr Gonzales’s entitlement and the matter was, by consent, discontinued. A Certificate of Determination issued on 17 January 2007 which recorded awards by consent in the appellant’s favour in respect of the claims for medical expenses and weekly benefits. An order was made that the appellant pay Mr Gonzales’s costs. Discontinuance of the proceedings was noted as was the parties intention to enter into “a complying agreement for lump sum compensation” and that the parties “ execute an agreement relating to admissions and agreed facts”.
Thereafter, on 9 February 2007, the parties entered into a complying agreement within the meaning of s 66A of the Workers Compensation Act 1987 (the 1987 Act). A document headed “agreed facts” was signed by Mr Gonzales, his solicitor and the appellant’s solicitor on 9 February 2007. A document headed “Admissions” was signed by Mr Gonzales in the presence of his solicitor on 16 October 2007. The contents of these documents are addressed below.
It seems that, pursuant to the agreement entered into between the parties, the sum of $17,000 in respect of a 13 per cent whole person impairment together with a lump sum of $9,500, in respect of pain and suffering payable pursuant to s 67, was paid by the appellant to Mr Gonzales.
On 9 March 2009 Mr Gonzales’s solicitors forwarded a Notice of Claim to the appellant and its insurer for a lump sum being $3,700 in respect of an alleged 3 per cent whole person impairment “in relation to scarring”. Liability in respect of that claim was denied and notice was given pursuant to s 74 of the Workplace Injury Management Act and Workers Compensation Act 1998 (the 1998 Act) to Mr Gonzales’s solicitors on 18 June 2009. That document, which is more fully addressed hereunder, stated in part that liability had been declined upon the basis that Mr Gonzales was estopped from recovering compensation benefits as claimed having regard to the agreement made between the parties in 2007.
On 15 March 2010 an Application to Resolve a Dispute was filed with the Commission on behalf of Mr Gonzales seeking orders against the appellant in respect of the claim earlier made. The matter came before an Arbitrator for conciliation/arbitration on 3 June 2010 at which time each party was represented by counsel. The matter proceeded to arbitration and concluded on that day. The Arbitrator reserved his decision and a Certificate of Determination issued on 25 June 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 25 June 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
(1)   The applicant suffered scarring to the lumbar spine on 16 January, 2006 arising out of the course of his employment with the Respondent.
(2)   (a) I remit the matter to the Registrar for referral to an AMS.
(b) The degree of permanent impairment in respect of scarring to the Lumbar Spine is to be referred by the Registrar to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a date of injury of 16 January, 2006.
(3)   The documents to be sent to the AMS are those accepted into these proceedings.
4.    That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 22 July 2010 the appellant filed with the Commission an application seeking leave to appeal against the decision of the Arbitrator.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) 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 without holding any conference or formal hearing.”

It is submitted that an oral hearing is appropriate given the nature and complexity of the issues raised on the appeal. I reject that submission. Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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.

LEAVE

Before leave may be granted to proceed with this appeal the appellant must satisfy the requirements of s 352(2) which provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations),
(b)at least 20% of the amount awarded in the decision appealed against.

The appellant and Mr Gonzales, in submissions provided with respect to this appeal, have each stated that the threshold requirements as prescribed by s 352(2) have been met. As noted above the claim brought by Mr Gonzales is in respect of whole person impairment caused by scarring, the quantum of that claim is particularised as being three per cent whole person impairment, and the amount claimed is the sum of $3,750. Having regard to the quantum of the claim, a direction was made and a teleconference was arranged at which time the parties were requested to address the question as to whether, in the circumstances, the monetary requirements of s 352(2)(a) are met.
That teleconference was conducted on 14 October 2010 at which time the appellant was represented by Mr Macken, solicitor, and Mr Gonzales was represented by Mr Eggins, solicitor. A transcript of that telephone conference has been produced and it forms part of the Commission record.
During the course of the teleconference Mr Macken outlined numerous arguments in support of the proposition that, notwithstanding the quantum of the claim, the threshold requirement of s 352(2)(a) had been met. Those arguments are recorded in the transcript.
Mr Eggins did not advance any argument which suggested that the threshold requirement had not been met and, indeed, he is recorded as accepting those arguments advanced on behalf of the appellant.
In numerous earlier decisions of the Commission the “amount of compensation at issue on the appeal” as stated in the subsection has been determined by reference to the amount of compensation claimed in the proceedings. (see Fine Meat(Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 (Hart)). In argument it was acknowledged by Mr Macken that “the current component of the compensation that’s referred to in the application to it (sic), is an amount of a bit under $4,000 or a 3 per cent whole person impairment”. However it was then put that “we don’t say that that’s all is (sic) at issue in the appeal, for a number of reasons”. The arguments advanced by Mr Macken to an extent lack precision, however it is clear that the appellant suggests that once an assessment is made by an AMS concerning the alleged scarring, regard must be had to the quantum of whole person impairment that has been paid to Mr Gonzales in the past, following execution of the s 66A agreement, to enable quantification of any further entitlement. That course is necessary by reason of the need to refer to the Combined Values Chart which is to be found in the Guides to the Evaluation of Permanent Impairment, American Medical Association, fifth edition (AMA 5). Mr Macken’s argument, as I understand it, suggests that the need to refer to that chart necessarily means that the amount of compensation at issue on the appeal includes not only the amount claimed but the amount paid pursuant to the agreement.
The appellant has paid the sum of $17,000 in respect of 13 per cent whole person impairment in accordance with the agreement. It is argued that that payment has discharged its liability. Notwithstanding that agreement Mr Gonzales is seeking an order as to additional entitlement. I accept the appellant’s submission that if the Commission concludes that such entitlement is not subsumed by the agreement, and if there is an assessment made by an AMS concerning the alleged scarring, the provisions of s 322(2) of the 1998 Act require that all impairments resulting from the injury be assessed together. Determination of the quantum of any entitlement would need, I accept, to be determined having regard to the Combined Values Chart of AMA 5 and any award following such an assessment would be for the sum so calculated, with provision that the appellant have credit for payment made in respect of s 66 entitlement. Shortly stated, the appellant’s argument is that the payment of $17,000 has discharged its obligation whereas Mr Gonzales seeks an order, the effect of which would be a determination that his entitlement pursuant to s 66 is greater that $17,000. It is in this sense, in the unusual circumstances of this case, that it may be said that the amount of compensation at issue on the appeal exceeds the sum of $5,000.
This is not a claim in respect of an alleged increase in the degree of permanent impairment, but is one in respect of which Mr Gonzales alleges he has not yet been paid that sum to which he is entitled. Such sum is alleged to exceed $17,000. In those circumstances I conclude that the threshold requirements of s 352(2)(a) have been met.
No order concerning the payment of any compensation has yet been made by the Commission. In the circumstances the provisions of s 352(2)(b) have no application (Mawson v Fletcher International Exports Pty Ltd [2002] NSWWCCPD 5). I note in passing that no argument has been raised on behalf of Mr Gonzales that the Arbitrator’s decision, being remitter to the Registrar for referral to an AMS, is one in respect of which no appeal may be brought, it being of an interlocutory nature within the meaning of s 352(8). It will be seen that the Arbitrator’s determination includes findings concerning the occurrence of injury, and the force and effect of the s 66A agreement. Those findings are such that a determination as to liability has been made by the Arbitrator, hence his decision is not one of an interlocutory nature within the meaning of the section (see EdmundDiab v Salem Naji [2010] NSWWCCPD 33).
There is no dispute concerning the threshold requirement as to time specified by s 352(4). In the circumstances, and having regard to the arguments raised on appeal, I conclude that it is appropriate leave be granted to proceed with the appeal and I so order.

ISSUES IN DISPUTE

The appellant, through its solicitor, asserts that there is no requirement that specific grounds of appeal be identified given that the Commission’s task on appeal is “to decide the true and correct view (of the evidence)”. As I have stated on an earlier occasion when a similar assertion was made by those representing the appellant, such assertion is made in complete disregard of practice and procedural requirements as found in the Commission’s Practice Direction number 6 dated 15 November 2007: Chhong Heng Taing T/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90. The appellant’s submissions in support of the appeal suggest misunderstanding on the part of the Arbitrator and failure by him to properly consider the evidence and arguments raised. Having read those submissions it appears that the issues in dispute may be summarised as follows:
That the Arbitrator erred in:
(1)determining that the onus of proof was upon the appellant to establish those facts which gave rise to an estoppel;
(2)determining that Mr Gonzales was not estopped by reason of the s 66A agreement, from claiming the lump sum in respect of an alleged 3 per cent whole person impairment by reason of scarring;
(3)failing to determine issues of “injury”, “causation” and “substantial contributing factor”, and
(4)failing to give adequate reasons for his determination.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been prepared and made available to each of the parties. It is there recorded (at T1) that no oral evidence was adduced. The transcript records submissions put on behalf of each party. The Arbitrator granted leave to the appellant to tender two reports from Dr Keith Laubscher dated 3 April 2003 and 29 April 2003 as late documents, there being no objection taken to such tender by Mr Gonzales (at T2).
The documentary evidence which was before the Arbitrator was summarised by him at [6] of his Statement of Reasons (Reasons) which accompanied the Certificate of Determination dated 25 June 2010.

Mr Gonzales’s evidence

Mr Gonzales relied upon those documents which were attached to his Application to Resolve a Dispute. Included was a statement made by him on 12 March 2010. He stated that he commenced work with the appellant in February 2005 and worked as a machine operator. The injury, which occured on 16 January 2006, was described and it is stated that he gave notice of that injury to his supervisor Mr Cerilco on the day of its occurrence. Mr Gonzales completed compensation claim forms and provided medical certificates to his employer. Following the injury he states that he could not “do the same work” that he was doing before the injury. Mr Gonzales describes the treatment which he has undergone including surgery performed by Dr Seex which was carried out on 21 September 2006.
Mr Gonzales further stated that on 17 January 2007 he “settled” his lump sum claim made against the appellant in the sum of $17,000 in respect of 13 per cent whole person impairment pursuant to s 66 and $9,500 in respect of pain and suffering pursuant to s 67. He stated that “since my settlement my condition has deteriorated”. He stated that he is particularly self conscious concerning the surgical scar he has. It was stated that the scar and surrounding area “are particularly sensitive”. The presence of the scar causes shyness and embarrassment by reason of its appearance.
Mr Gonzales relied upon three reports prepared by Dr Desmond M V Rea, plastic and reconstructive surgeon. Dr Rae had been qualified by Mr Gonzales’s solicitors to provide a report as to whole person impairment by reason of bodily scarring. Dr Rea reported that on examination he observed a scar situated in the mid line in the lower lumbar region, extending vertically for a total length of 3cm. It was noted that the scarring was “not quite straight”. It was also noted that there was some pigmentation extending on either side of the margin of the scar for a further centimetre “presumably from stitch marks”. Dr Rae noted that Mr Gonzales appeared to have particular sensitivity at the scar site whenever it was touched or “if anything was rubbed on it”. Dr Rea assessed whole person impairment by reference to Table 8 – 2 (p178): class 1 of AMA 5 as being three per cent.
Mr Gonzales relied upon a number of reports from Dr Kevin A Seex, neurological and spinal surgeon, as well as a report from Dr Hameed and a report from Dr Gollapudi which had been written on behalf of Dr Seex. Those reports related to treatment of Mr Gonzales’s lumbar back injury. The first of those reports dated 7 February 2006 included a notation of findings made following CT scan being “a centrally calcified disc prolapse causing a moderate stenosis and probably consistent with his L5 symptoms”. It is recorded that the scan had been given to Dr Seex by Mr Gonzales. No date of that CT scan is recorded in the report. The balance of the reports relate to the operative procedure conducted on 21 September 2006 being left L4/5 microdiscectomy. It is recorded that the surgery was conducted in a public hospital and that, by reason of the rejection of Mr Gonzales’s compensation claim, the treatment was provided to him as a public patient.
Three reports by Dr Kevin Bleasel each dated 6 September 2006 were attached to the application. Dr Bleasel had been qualified by Mr Gonzales’s solicitors to provide a report in support of the lump sum claim that was the subject of earlier litigation. Dr Bleasel recorded a history of a lifting strain suffered by Mr Gonzales in New Zealand in 2002. It is recorded that he experienced back pain and was then absent from work for three days. Dr Bleasel records that “no x-rays were taken and he made a full recovery”. A history of the subject injury was recorded. Following physical examination Dr Bleasel assessed whole person impairment with respect to the lumbar spine at 13 per cent and with respect of the thoracic spine as being five per cent. By reference to the combined tables Dr Bleasel advised that those assessments equated to 17 per cent whole person impairment. In a separate report Dr Bleasel assessed permanent impairment of Mr Gonzales’s back of 30 per cent; permanent loss of use of his left leg at or above the knee, taking into account below the knee of 20 per cent; permanent loss of use of Mr Gonzales’s right leg at or above the knee, taking into account below the knee of five per cent and permanent loss of sexual organs 20 per cent whole person impairment.
Dr Bleasel’s reports related to an examination conducted by him on 6 September 2006.
A report of Dr Robyn Horsley, occupational physician, dated 7 September 2006 was attached to the application. Dr Horsley recorded a history of injury in 2002/2003 to the “upper back” whilst working as a furniture assembler in New Zealand. It was also recorded that as a result of that injury Mr Gonzales was off work for three days and given pain killers following which he returned to normal duties. A history of the subject injury was recorded. Dr Horsley conducted a physical examination and reviewed radiological studies which had been made available. The diagnosis was that of a significant injury to the lumbar spine being a “discal disruption at the L4/5 level. He has a focal small annular tear and a focal left paracentral disc protrusion”. The radiological investigations indicated there is disc material to be seen encroaching on the left L4 nerve root and a suggestion of displacement of the L5 nerve roots by “posterior bony bar”. Dr Horsley expressed the view that Mr Gonzales’s symptoms were likely to persist until conduct of surgery which, it was recorded, was to take place on 21 September 2006. There is no expression of opinion given by Dr Horsley concerning any whole person impairment resulting from the subject injury.

A copy of correspondence dated 18 June 2009 from the appellant’s insurer to Mr Gonzales’s solicitors is in evidence. That correspondence particularises the reasons for declining Mr Gonzales’s claim and was given pursuant to s 74 of the 1998 Act. The notice was in very broad terms and included a denial of injury and, as earlier noted, asserted that Mr Gonzales was estopped from recovering the compensation claimed having regard to the agreement reached in respect of settlement of earlier proceedings.
A copy of the Commission’s Certificate of Determination – Consent Orders dated 17 January 2007 made in matter 16606 of 2006 was attached to the application. The terms of that certificate are as follows:
“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
1.Award for the Respondent pursuant to Section 60 of the Act.
2.Award for the Respondent as regards the Applicant’s claim for weekly benefits.
3.The matter otherwise to be discontinued (and in this regard, it is noted that the parties will enter into a complying agreement for lump sum compensation and that the Applicant will execute an agreement relating to admissions and agreed facts).
4.The Respondent to pay the Applicant’s costs as agreed or assessed.”
A copy of a “complying agreement under s 66A of the Workers Compensation Act, 1987” is attached to the application. The copy of the agreement is dated 9 February 2007 and is signed both by the applicant and his solicitor. The terms of the agreement as recorded are as follows:
“Matter No: 16606 of 2006
CARLOS GONZALES Applicant
CSR LIMITED Respondent
COMPLYING AGREEMENT UNDER S66A OF THE
WORKERS COMPENSATION ACT, 1987
DATE OF INJURY

1. This agreement is in respect of the injury sustained by the Applicant to his back on 16 January, 2006 and as a result of the nature and conditions of his employment with the Respondent throughout that employment.

2. The Applicant agrees that he/she has not sustained any other injury of any kind in his employment with the respondent.
DATE OF CLAIM

1. This agreement relates to the claim made for the payment of lump sum compensation pursuant to Section 66 and Section 67 of the Act made in respect of the injuries referred to on 9 October, 2006.
DEGREE OF PERMANENT IMPAIRMENT & AMOUNT OF COMPENSATION

1. The parties to this agreement agree that the Respondent will pay to the Applicant lump sum compensation pursuant to Section 66 of the Workers Compensation Act, 1987 in the amount of $17,000.00 in respect of a 13% whole person impairment.
2. The parties to this agreement agree that the Respondent will pay to the Applicant lump sum compensation pursuant to Section 67 of the Workers Compensation Act, 1987 in the amount of $9,500.00.

3. The parties to his agreement agree that the total amount of lump sum compensation payable by the Respondent to the Applicant pursuant to Section 66 and Section 67 of the Workers Compensation Act, 1987 is $26,500.00.

4. The Applicant agrees that the lump sum compensation payable to the Applicant by the Respondent pursuant to this agreement represents the full extent of any entitlement that the Applicant has to the payment of any lump sum compensation pursuant to Section 66 and Section 67 of the Workers Compensation Act, 1987.

DATE OF AGREEMENT

1. The date of this agreement is the date on which it is signed by and on behalf of the Applicant but the parties agree that no interest is payable in respect of the lump sum compensation which is the subject of this agreement if it is paid within 28 days after the provision of this agreement and the provision of any other necessary documents to the Respondent.

MEDICAL REPORTS RELIED ON TO ASSESS THE DEGREE OF IMPAIRMENT
1. The medical reports relied on for the purpose of assessing the degree of impairment are as follows:-

Dr Horsley dated 7 September, 2006, Dr Bleasel dated 6 September, 2006 and Dr R. D. Smith dated 30 November, 2006 and Dr K Edwards dated 2^nd November 2006.

INDEPENDENT LEGAL ADVICE
1. The Applicant and the Solicitor for the Applicant confirmed that:-
(a)This agreement has been read and explained to the Applicant by the Solicitor for the Applicant;
(b)The Applicant has obtained independent legal advice in respect of the agreement;

(c)The Applicant understands and agrees to all of the terms of this agreement.

CERTIFICATION BY RESPONDENT
1.    The Respondent Employer (a self insurer) certifies that it is satisfied that the worker has obtained independent legal advice.
Dated:     9 February 2007
(Signed by Mr Gonzales)  (Signed by Mr Gonzales’s Solicitor)
Applicant  Solicitor for the Applicant
______________________
Solicitor for the Respondent”

Appellant’s Evidence

The documents upon which the appellant relied before the Arbitrator included a copy of the Reply filed on its behalf in the proceedings commenced by Mr Gonzales in 2006. The attachments to that Reply included copies of a number of reports of Dr Ian Barrett the first of which was dated 9 March 2006 and the last dated 19 May 2006. In the first of those reports Dr Barrett recorded that Mr Gonzales “denied experiencing any symptoms from his lumbar spine or left leg prior to the lifting incident”. In Dr Barrett’s second report dated 18 May 2006 it is recorded that Mr Gonzales had been referred to Dr Seex who had advised “an L4-L5 microdiscectomy and implantation of Wallis”. In his last report Dr Barrett comments on DVD surveillance discs.
The reports of Virtual Intelligence addressed to the appellant which relate to the DVD recorded surveillance were also relied upon by the appellant in the earlier proceedings. Those documents are not directly relevant to any issue raised on this appeal.
A copy of “Admissions” signed by Mr Gonzales and his solicitor dated 16 October 2007 were attached to the Reply filed in these proceedings. The contents of that document are as follows:
“Matter Number 16606 OF 2006
CARLOS GONZALES Applicant
CSR LIMITED Respondent
ADMISSIONS
1.I have been paid all wages or compensation entitlements up to 15 January, 2007.
2.Since 1 June, 2006 I have been able to earn not less than I would have earned had I remained in the employ of the Respondent.
3.Since 1 June, 2006 I have not been economically incapacitated as a result of any injury arising out of or in the course of my employment with the Respondent.
4.Notwithstanding any loss of use or impairment of any part of my body as set forth in the award/agreement herein, I am not prevented from undertaking employment that returns at least what I would have earned had I remained in the employ of the Respondent, or in the open labour market for those jobs available to me.
5.Since 1 June, 2006 I have incurred no expenses for hospital or medical treatment reasonably necessary as a result of any injury arising out of or in the course of my employment with the Respondent other than those expenses paid by the Respondent.
6.Any hospital or medical treatment that I require in the future is not required as a consequence of any injury arising out of or in the course of my employment with the Respondent.
7.I agree that I do not have any entitlement to damages.
8.I have suffered no loss or impairment pursuant to the Workers Compensation Act other than the loss/es and/or impairment/s the subject of the award/agreement herein, as a result of any injury arising out of or in the course of my employment with the Respondent.
9.I have recovered from the economic effects of any injury or the aggravation of any injury caused by or resulting from any work duties or any specific incident in the employ of the Respondent.
10.Any loss or impairment of my body or any part of my body from which I presently suffer other than that for which I have already been compensated does not result from any injury arising out of or in the course of my employment with the Respondent.
11.I did not suffer any injury arising out of or in the course of my employment with the Respondent other than those referred to in the Application to Resolve a Dispute.
12.I acknowledge that the Respondent disputes my claim in these proceedings and consents to the awards herein by way of compromise and in reliance upon the admissions I have made.
13.I accept this settlement in satisfaction of any claim that I may have against the Respondent.
14.I understand the contents of this document which has been explained to me by my legal adviser.

Dated:16^th October 2007
Signed by Applicant’s Solicitor Signed by Mr Gonzales
Applicant’s Solicitor Applicant”

A copy of “Agreed Facts” dated 9 February 2007 signed by Mr Gonzales, his solicitor and the appellant’s solicitor is also attached to the Reply. The contents of that document are as follows:
“Matter Number 16606/06
CARLOS GONZALES  Applicant
CSR LIMITED  Respondent
AGREED FACTS
1.   The Applicant has no economic incapacity after 1 June, 2006 causally related to any injury sustained during or aggravated by the Applicant’s employment with the Respondent.
2.   The Applicant is not entitled to any further weekly payment of compensation.
3.   Other than as set out in the award herein, the Applicant has no entitlement to compensation against the Respondent.
Dated: 9 February 2007
Signed by Applicant’s Solicitor/Counsel       Signed by Respondent’s Solicitor
Applicant’s Solicitor/Counsel  Respondent’s Solicitor
Signed by Mr Gonzales
Applicant”

A copy of a statutory declaration made by Mr Gonzales on 12 April 2006 is in evidence before the Commission. That declaration is one paragraph in length and states:
“From 1997-2004 I worked in Morgan Furniture, Auckland NZ as a assembler. In the mid of 2003, I felt sore back and consulted my doctor and gave me (3) three days off work. Then after my days off, I returned to normal duties as a assembler.”
The appellant relied upon the evidence of Dr Kim Edwards, surgeon, found in his report dated 2 November 2006. Dr Edwards recorded a detailed history including experience by Mr Gonzales of muscle ache present at the upper trapezius region bilaterally which occurred in December 2005 at the time he was involved in cleaning. It was also recorded that on 16 January 2006 Mr Gonzales was involved in heavy lifting. At the time of that activity Mr Gonzales was not aware of any problem. That evening as Mr Gonzales sat down to watch television he noted onset of pain in his lower back and that pain subsequently became worse. It is also recorded that Mr Gonzales was paid compensation benefits until June 2006 and that he underwent an operation at Nepean Hospital in September 2006. Concerning Mr Gonzales’s past history, Dr Edwards recorded that in 2002 when in New Zealand Mr Gonzales strained a muscle in his back which he indicated was at the thoraco-lumbar junction level. It was recorded that Mr Gonzales returned to work as a furniture assembler after three days absence from work. On examination of Mr Gonzales’s lumbar spine Dr Edwards noted there was a “short, well healed, recent, low lumbar mid line incision from his operation”. Mr Gonzales complained of tenderness to palpitation over the incision. Dr Edwards recorded the findings of an MRI lumbar spine dated 14 February 2006 and expressed the opinion that Mr Gonzales “appears to have been suffering symptoms resulting from a left sided L4/5 disc protrusion, causing an L4 radiculopathy”. Dr Edwards was of the view that the MRI demonstrated degenerative change at the L4/5 disc which pre-dates the alleged work injury. Dr Edwards further stated that the history given by Mr Gonzales “does not suggest this is a work related injury”.
There are two reports by Dr Robert Smith, consultant surgeon, each dated 30 November 2006 in evidence. Dr Smith recorded a history of the alleged injury as well as detail concerning an injury to Mr Gonzales’s “high lumbar region” whilst working for Morgan Furniture in Auckland. On examination Dr Smith observed a lumbar scar which was a consequence of back surgery earlier recorded as having taken place at the Nepean Hospital on 21 September 2006. Dr Smith found that there was “doubtful tenderness” over the scar as well as “somewhat doubtful tenderness to moderate pressure bilateral to the scar area”. Dr Smith expressly stated in the second of the two reports that Mr Gonzales “now suffers from no permanent whole person impairment calculated in accordance with the WorkCover Guidelines and the AMA 5^th Edition Guide”.
The reports of Dr Laubscher noted at [23] above record that Mr Gonzales suffered low back pain with left leg pain and that an MRI lumbar spine conducted on 5 March 2003 demonstrated a broad based disc protrusion associated with annular tear at L4-5. In the second of those reports dated 29 April 2003 Dr Laubscher recorded that Mr Gonzales’s leg symptoms had settled but that he has continuing back pain. The pain was reported as being over 50 per cent “better”.

Appellant’s Submissions

Counsel appearing on behalf of the appellant made it clear at the hearing that the appellant’s defence to the claim was founded upon a suggested estoppel which arises from “the effects of the earlier settlement”. Should that issue be found against the appellant, it was put by counsel, the appellant denied the occurrence of injury as well as those other matters which were raised in the s 74 notice served by his client.
It was put that the document relevant to the issue of estoppel was the “complying agreement”. Counsel noted that the settlement occurred at the time the scarring, being a consequence of the surgery conducted in September 2006, was present. Reference is also made to the admissions signed by Mr Gonzales in October 2007, in particular paragraph 8 where it is stated that Mr Gonzales “has suffered no loss or impairment pursuant to the Workers Compensation Act other than the losses and/or the impairments the subject to the award or agreement herein”. Attention was also drawn to other matters contained in that document including the acknowledgement by Mr Gonzales that the appellant disputed the claim made by him and consents to the awards made in the proceedings by way of a compromise and “in reliance upon the admissions I have made”.
The argument was put that, having regard to the settlement and the documentation associated with that agreement, Mr Gonzales has “exhausted his rights” and that “for him to come back now, he must – the applicant must dis-charge his onus and show a change of circumstances”. Counsel summarised the argument as follows:
“the worker carries an onus of showing why it is that he can disturb his compensation agreement, why it is that scarring now becomes compensable in the circumstances where he said that he had been paid all his entitlements to compensation as at October 07 (sic)”(T6).
It was noted by counsel in the course of submissions that the claim brought by Mr Gonzales was not one with respect to a suggested deterioration of his condition. It was also put that there is no evidence before the Commission that at the time of the settlement and the making of the agreement Mr Gonzales was not aware that he “had scarring”.
It was put, in the alternative, that should the estoppel argument be rejected, the appellant asks the Commission to “determine the matter afresh”. It was put that there is no evidence of injury.

Mr Gonzales’s Submissions

It was put on behalf of Mr Gonzales that there is “ample evidence of injury in the evidence”. Counsel noted that the s 66A agreement “is based on” the evidence of Dr Edwards, Dr Horsley and Dr Bleasel. It was put that “nowhere in any of those reports is scarring referred to. It just isn’t. There is no assessment of it. There is not even a mention of it.” It was acknowledged that Mr Gonzales underwent surgery before the earlier proceedings were finalised.
It was put on behalf of Mr Gonzales that at the time of the settlement in 2007 there was “an admission of injury”. An argument seems to be advanced that, in all the circumstances of the original settlement, an estoppel arises preventing the appellant denying that there had been an injury to Mr Gonzales’s back.
It was further argued that, having regard to the evidence of Dr Edwards, Dr Bleasel and Dr Horsley it is clear that the compensation paid in respect of 13 per cent whole person impairment related to the “back injury simpliciter”. Scarring, it was submitted, was not involved in that settlement. Upon that basis it was put that scarring was not “something that was in the contemplation of the agreement (sic)”.
It was put that the fact of injury “is admitted on the pleadings because there is already an award or 66A agreement acts (sic, which acts) as the said award”.
It was argued on behalf of Mr Gonzales that the party who seeks to raise a defence founded upon an estoppel had the burden of proving the existence of such estoppel.

Submissions in Reply by Appellant

Further submissions were put on behalf of the appellant which, for the first time, drew attention to the terms of s 66A. It was further argued that, should the estoppel argument be rejected, Mr Gonzales “fails pursuant to s 9, s 4 or alternatively (sic), in respect of s 9A”. That submission was put following an examination of the evidence concerning Mr Gonzales’s history of back pain with particular attention being given to clinical notes of an unidentified medical practitioner which were annexed to the appellant’s Reply. An entry made in 2005 appears to read “LBP pre wc for LBP -? sciatica”. It was put on behalf of the appellant that, shortly before the alleged injury Mr Gonzales was reporting to his general practitioner a history of low back pain and of a previous workers compensation claim.

The Arbitrator’s Reasons

The Arbitrator noted that the application before him was one seeking a lump sum for permanent impairment pursuant to s 66 of the 1987 Act. Following a brief summary of facts it was noted that Mr Gonzales had settled a claim “pursuant to s 66 and 67 of the 1987 Act for lump sum entitlements”. He proceeded to note that the settlement provided for the payment of $17,000 in respect of 13 per cent whole person impairment (s 66) and $9,500 in respect of pain and suffering (s 67). It was further noted that documents “entered into” included “admissions dated 16 October 2007”, “agreed facts dated 9 February 2009 (sic, 2007)” and a “Complying Agreement under s 66A of the 1987 Act dated 9 February 2007”. The Arbitrator then recited the terms of the Certificate of Determination which are noted at [33] above.
The Arbitrator noted that the appellant relied upon the settlement documents which had been summarised “as creating an estoppel which would prevent (Mr Gonzales) prosecuting his current claim”. It is further noted that the appellant argued that the onus was upon Mr Gonzales to establish that those documents do not create an estoppel. The Arbitrator rejected that last submission citing the decision in Turner v London Transport Executive [1977] ICR 952 (Turner). Upon reliance of that decision the Arbitrator concluded that it is the party who seeks to rely upon an estoppel who is burdened with the onus of establishing its existence.
The Arbitrator proceeded to make reference to the decision of the High Court of Australia in Blair v Curran 1939 62 CLR 464 (Blair). It is apparent that the Arbitrator was addressing the subject of res judicata, or perhaps issue estoppel, those being matters not clearly raised during argument before him. The Arbitrator noted that there is a “scarcity of evidence as to what was determined in the prior litigation”. The Arbitrator further notes that there is “no evidence as to (Mr Gonzales’s) pleadings nor is there evidence as to what defences were raised”. It was observed by the Arbitrator that there was not a “copy of the evidence” which had been tendered in the prior proceedings. The Arbitrator appears to have then disregarded the subject of res judicata/issue estoppel with the remark “(the appellant) must establish that the same issues were determined in both sets of proceedings”.

The Arbitrator then turned his attention to the content of the s 66A agreement. It was noted that the medical reports relied upon to assess the degree of impairment were nominated in that agreement as being those of Dr Horsley, Dr Beasel, Dr Smith and Dr Edwards. It is noted by the Arbitrator that neither Dr Horsley nor Dr Bleasel made any reference to a surgical scar at the level of the lumbar spine. I note in passing that it was not acknowledged by the Arbitrator that the examinations conducted by those two practitioners pre-dated the surgery in question.
The Arbitrator proceeded to note the observations of both Dr Edwards and Dr Smith concerning the presence of the scarring as has been noted at [40] and [41] above. The Arbitrator noted that Dr Smith assessed Mr Gonzales’s whole person impairment as being zero and that there was no indication in that evidence “of an attempt to assess the scarring to the back as the permanent impairment calculation does not set out the body parts on which this assessment has been calculated”.
Reference is made by the Arbitrator to the decision of Moore ADP in Woolworths Limited v Van Der Mast [2005] NSWWCCPD 108 (Woolworths). It was stated by the Arbitrator that the facts in Woolworths were similar to those of the present matter. Notwithstanding the similarity of the facts the matter was distinguished by the Arbitrator.
The Arbitrator noted that the appellant relied upon the provisions of s 66A in support of the argument that “the complying agreement prevents the prosecution of any further claim by (Mr Gonzales)”. The Arbitrator found (at [21]) that the operation of s 66A(2) and (5) “does not affect the factual situation in these proceedings as s 66A(1) refers to a written agreement under which a worker has received an ‘injury’”. The Arbitrator appears to have found that the word “injury” as it appears in s 66A(1) is to be taken as meaning “the body part which has been the subject of the claim”. The observation is then made that “the body parts, the subject of the earlier settlement were only the lumbar and thoracic spine”. Upon the basis of this reasoning the Arbitrator found that s 66A(5) “does not apply as the scarring to the lumbar spine was not contemplated by either party as being part of the agreement”. Whilst not expressly stated it is clear that in so finding the Arbitrator has rejected the appellant’s argument founded upon the suggested estoppel.
At [22] of Reasons the Arbitrator appears to attempt to address all those issues raised on behalf of the Appellant in its s 74 notice. A finding is made that Mr Gonzales had established that he “suffered an injury at the respondent’s premises and that employment is a substantial contributing factor to the injury”. The Arbitrator also concluded that the appellant “by its conduct represented that there was no dispute on the liability issues raised in these proceedings. The payment of a settlement must indicate to (Mr Gonzales) that (the appellant) was unable to raise any significant defences on liability”. The appellant’s argument concerning injury and those other matters raised in the notice were rejected by the Arbitrator. He proceeded to make the finding and orders found in the Certificate of Determination dated 25 June 2010 set forth at [8] above.

SUBMISSIONS ON APPEAL

Appellant’s submissions

The appellant argues that the reasoning as expressed by the Arbitrator demonstrates that he has “erred in his understanding of the submissions” made concerning estoppel. It is also submitted that the Arbitrator erred in “failing to properly consider the evidentiary onus which (Mr Gonzales) needed to discharge by reason of the documents referred to in [11] and [12]”.
It is also submitted that the Arbitrator erred in the manner in which he reached the conclusion that the decision of Woolworths could be distinguished from the present case.
It is agued on behalf of the appellant that the Arbitrator erred “in his consideration and application of s 66A”. It is said that a particular error is demonstrated by “(the Arbitrator’s) attempt to qualify the concept of “injuries” as relating only to a specific body part”.
It is argued that the Arbitrator erred in concluding that there was “no dispute” with respect to the issues of “injury”, “causation” and “substantial contributing factor”.
A general submission is made that the Arbitrator has erred in failing to give “adequate reason (sic) and in failing to properly consider and address the issues in dispute”.
On 19 July 2010 the appellant filed further submissions in support of the appeal which had been prepared following receipt of the transcript. Those submissions amplify the matters earlier noted with particular references to matters recorded in the transcript. It is noted that the appellant relies upon the submissions made at the hearing before the Arbitrator in addition to the matters raised with respect to challenge of the Arbitrator’s findings.

Mr Gonzales’s submissions

Reference is made to the decision of Turner in support of the proposition that the Arbitrator’s conclusion, concerning the onus of establishing the existence of an estoppel being upon the appellant, was correct.
A general submission is put that the reasoning as expressed by the Arbitrator in clauses 20, 21 and 22 of his statement of Reasons were correct.
A general submission is put that the Arbitrator did not fail to give adequate reasons for his conclusions as to the matters in dispute.
Reference is made in the course of submissions to the evidence of Dr Horsley, Dr Bleasel, Dr Smith and Dr Edwards and it is argued that Mr Gonzales “has not been assessed in relation to the scarring to his lumbar spine”. Submissions are made in support of the Arbitrator’s reasoning concerning the decision in Woolworths.
Reliance is placed by Mr Gonzales upon the decision in Seaib v Hays Personal Services (Aust) Pty Ltd [2008] NSWWCCPD 36 (Seaib) which had been cited by counsel in the course of submissions before the Arbitrator. This submission is not developed and it appears that reliance is placed upon those matters put on behalf of Mr Gonzales by counsel at the hearing.

DISCUSSION AND FINDINGS

As noted at [62] above, the appellant argues that the Arbitrator has demonstrated a misunderstanding of submissions put at the hearing concerning estoppel. I have attempted to summarise the arguments put on behalf of the appellant before the Arbitrator between [43] and [47] above. It seems the argument advanced was that, given the existence of the agreement entered into between the parties in accordance with the provisions of s 66A, the doctrine of estoppel by agreement prevents Mr Gonzales from denying that he has received payment of all lump sum compensation to which he is entitled pursuant to s66 and s67 as a result of the injury alleged to have occurred on 16 January 2006.
The manner in which argument was presented before the Arbitrator included reliance upon the “admissions” made by Mr Gonzales in October 2007 which I have noted at [37] above. Whilst attention was drawn to particular matters contained in that document it is not clear as to what relevance those admissions are said to have to the suggested estoppel which arose by reason of the agreement. As will be seen, I have concluded that those admissions are of no relevance to the appellant’s arguments raised concerning estoppel (at [94] below).
The Arbitrator firstly addressed the appellant’s arguments concerning the question of onus of proof of those circumstances relevant to the existence or otherwise of an estoppel. It was stated, at [13] of Reasons, that the appellant’s submission that there is an onus upon Mr Gonzales to establish that “the documents” do not create an estoppel was erroneous. In support of that conclusion the Arbitrator made reference to the decision in Turner which involved consideration of a plea of issue estoppel. In the present case the appellant challenges that conclusion and asserts that the circumstances of the earlier settlement give rise to an estoppel which prevents Mr Gonzales from denying that he has been paid the totality of his entitlement. That argument suggests that the operation of the doctrine of estoppel by agreement, or estoppel by conduct, prevents Mr Gonzales from denying he has received his entitlement. The onus in such circumstances is, again, upon the party asserting the estoppel (Thompson v Palmer (1933) 49 CLR 507 per Dixon J at 547 (Thompson)). The appellant’s submission concerning the Arbitrator’s conclusion concerning onus of proof must be rejected.
The Arbitrator, when dealing with the appellant’s arguments concerning estoppel, cited the decision in Blair v Curran (1939) 62 CLR 464 (Blair) with particular reliance being placed upon that which was said by Dixon J (as he then was) at 531. It is reasonably clear that at this point the Arbitrator was dealing with the question of the existence or otherwise of a res judicata, or issue estoppel, arising from the settlement of the earlier proceedings. The Arbitrator noted that there was “a scarcity of evidence as to what was determined in the prior litigation”. He noted that there was no evidence as to Mr Gonzales’s “pleadings” nor was there evidence as to the defences raised on behalf of the appellant. The Arbitrator made the observation “the (appellant) must establish that the same issues were determined in both sets of proceedings”. There is no express statement by the Arbitrator that he had concluded that no estoppel had arisen by reason of the settlement of the earlier proceedings however it appears that, given the matters stated at [14] of Reasons, he had in fact rejected the appellant’s argument founded upon estoppel.
It is clear that a consent award made by the Commission may have the consequence that res judicata estoppel arises (see discussion by Snell ADP in Seaib [58]-[77]). As stated by Snell ADP in that matter such an estoppel may also involve admissions of facts inherent to the award (at [77]). The question in the present matter is whether Mr Gonzales’s right to lump sum compensation has, in the earlier proceedings, “passed into judgment” in the sense addressed by Dixon J in Blair (at 532).
Issue estoppel may arise in those circumstances addressed in Habib v Radio 2UE Sydney Pty Ltd [2009]NSWCA 231 per McColl JA (Giles JA and Campbell JA agreeing) at 186:
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so “only as to those matters which are necessarily decided”, to ascertain which “the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to”: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] – [65]); Abigroup Contractors Pty Ltd (at [146])”.

In the present matter it may be implied from the terms of the consent order made in January 2007 that Mr Gonzales had brought a claim in respect of weekly compensation, lump sum entitlement and medical expenses. The particulars concerning the dispute as described in the Reply filed by the appellant in those proceedings are very broad and may be said to be all encompassing. Orders in favour of the appellant with respect to the claims for weekly compensation and medical expenses are made. The Commission’s orders in those proceedings, having been entered by consent, are not based upon any finding or determination. All that is otherwise recorded in that award is that the parties had the intention of entering into a complying agreement concerning Mr Gonzales’s entitlement to lump sums. It cannot be said that the terms of the award finally dispose of the present issue between the parties, being entitlement to the further lump sum claimed.
I have inferred (at [76] above) that the Arbitrator has rejected the appellant’s argument concerning estoppel arising from the consent award. That conclusion, whilst not explicitly stated, is one with which I agree. In so far as it is argued that Mr Gonzales is estopped from bringing the present claim by reason of the entry of the award in 2007, those submissions must be rejected.
The appellant, both before the Arbitrator and on this appeal, has argued that Mr Gonzales is estopped from bringing the claim by reason of the existence of those documents which came into being following entry of the consent award. It was put that the complying agreement was one entered into by the parties in accordance with the provisions of s 66A of the 1987 Act and that the agreement, read with the admissions made by Mr Gonzales in October 2007, operate as an estoppel which bars the present claim.
The Arbitrator has rejected the appellant’s arguments founded upon the contents of the documents. Those matters were considered by him commencing at [15] of Reasons, and included a consideration of the content of the s 66A agreement. The Arbitrator drew attention to the medical reports which were identified in that agreement as having been relied upon for the purpose of assessing “the degree of impairment”. He noted that the only assessment made by Mr Gonzales’s medical witnesses was that made by Dr Bleasel. That assessment related to the lumbar and thoracic spine. The assessments concerning Mr Gonzales’s legs and sexual organs are not noted by the Arbitrator. It is further noted that there is “no reference by Dr Bleasel to a surgical scar” and the view is expressed that “[Dr Bleasel] has not examined the scarring on the lumbar spine nor has he made any assessment of that scarring” (at [17] of Reasons).
The absence of any reference by Dr Bleasel to scarring is hardly surprising given that the examination conducted by that practitioner occurred on a date prior to the operative treatment which gave rise to the scar. That fact is not acknowledged by the Arbitrator in his analysis of the evidence. The Arbitrator did note the observations of Dr Edwards and Dr Smith concerning the existence of an “incision” or “scar” present at the lumbar level of Mr Gonzales’s spine.
The Arbitrator proceeded to consider the provisions of s 66A which provide:
“66A   Agreements for compensation
(1) In this section, complying agreement means a written agreement:
(a)under which a worker who has received an injury, and an employer or insurer, agree as to either or both of the following:
(i)   the degree of permanent impairment that has resulted from the injury,
(ii)    the amount of pain and suffering compensation to which the worker is entitled in respect of the injury, and
(b)in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice before entering into the agreement.
(2) If a worker enters into a complying agreement in relation to an injury:
(a)  the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed, and
(b)  the pain and suffering compensation to which the worker is entitled in respect of the injury is the amount so agreed.
(3) The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:
(a)  the agreed degree of permanent impairment or the amount of pain and suffering compensation is manifestly too low, or
(b)  the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c)  since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
(4) Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.
(5) Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.
(6) Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.”
The Arbitrator (at [21] of Reasons) stated “the combination of s 66A(2) and (5) does not affect the factual situation in these proceedings as s 66A(1) refers to a written agreement under which a worker has received an ‘injury’”. That finding by the Arbitrator constitutes a rejection of the appellant’s argument that, by reason of the existence of the complying agreement, Mr Gonzales is estopped from bringing the claim.
The Arbitrator has stated his reasons for so concluding as follows (at [21] of Reasons):
“In this context the word ‘injury’ is interpreted as the body part which has been the subject of the claim. The body parts, the subject of the earlier settlement were only the lumbar and thoracic spine.
In these circumstances Section 66A (5) does not apply as the scarring to the lumbar spine was not contemplated by either party as being part of the agreement”.
It is implicit in what was stated on behalf of the appellant before the Arbitrator that it was the appellant’s case that the word “injury” as it appears in s 66A(1)(a) should be construed as meaning “injurious event”. Such an argument seems to be advanced as recorded at T19.40-58. It is clear from the Arbitrator’s Reasons as above quoted that the appellant’s argument has been rejected. Having concluded that the word “injury” as it appears in the section and as it appears in the agreement means “body part”, the pathology being the scar tissue is to be distinguished and treated as separate to the “injury” to the thoracic and lumbar spine. Given the Arbitrator’s conclusion that scarring was not “subject of the claim” nor “subject of the earlier settlement” he found it was open to Mr Gonzales to pursue the present claim notwithstanding the making of the agreement.
The submissions made on behalf of Mr Gonzales merely seek to support the reasoning as expressed by the Arbitrator. No specific submission has been put in support of those aspects of the Arbitrator’s determination which touched upon the proper construction of s 66A. It is proposed to consider the correctness or otherwise of the Arbitrator’s conclusion that “injury” as it appears s 66A is to be taken as referring to “the body part which has been the subject of the claim”.
Whilst the term “injury” is defined in s 4 of the 1987 Act, that term in earlier decisions of the Commission and the former Compensation Court has been found, having regard to context, to refer to both “injurious event” and “pathology” arising from that event (see Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (Lyons) and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (Connor)).
Where a worker has received an injury, the clear purpose of s 66A is to provide a means whereby a worker and an employer may reach a final and binding agreement concerning entitlement to lump sum compensation. The section represents an exception to the “no contracting out provision” being s 234 of the 1998 Act. A “complying agreement” entered into pursuant to the provisions of s 66A may, by agreement, fix the quantum of entitlement a worker may have to lump sums pursuant to s 66 and s 67 of the 1987 Act (s 66A(1)(a)).
If the Arbitrator’s construction of the word “injury” is accepted as being correct, s 66A would not, in my opinion, achieve its purpose as earlier stated. There would be no finality. In my opinion the section is intended to apply with respect to the consequences of the injury (injurious event). That is clear having regard to the provision as to finality of the agreement concerning the worker’s entitlement: s 66A(2)(a) and (b). Parliament has made provision for exceptions to that finality as found in s 66A(3). Those exceptions do not extend to the present circumstances.

The worker, through his solicitors, negotiated settlement of his lump sum claims in 2007, being a time at which the subject scarring was present. It is true, as noted by the Arbitrator, that the settlement was reached without there being any assessment concerning that scarring being made by Dr Bleasel or any other medical expert qualified on behalf of Mr Gonzales. However it is reasonable to infer that the worker was aware of the scarring at the time of the settlement, and it is clear that the scarring or incision was noted by the medical experts qualified on behalf of the appellant. It is not in dispute between the parties that the agreement entered into in February of 2007 was a complying agreement within the meaning of s 66A. Having regard to the text of the agreement, the circumstances known to the appellant and Mr Gonzales and the purpose and object of the agreement, a reasonable person would, in my opinion, have understood the agreement as being intended to finalise liability for, and entitlement to, lump sum compensation (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others [2004] HCA 52; 219 CLR 165 and see discussion by Roche DP in Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92).
The appellant, in the earlier proceedings, disputed the occurrence of injury. The agreement includes a clause recording Mr Gonzales’s agreement that the lump sum compensation payable pursuant to the agreement “represents the full extent of any entitlement” that he has pursuant to s 66 and s 67. Upon the basis of that acknowledgment the appellant agreed to a payment by way of compromise of the claim brought by Mr Gonzales. The doctrine of estoppel by agreement operates in those circumstances given that Mr Gonzales’s abandonment of the assumption that he has received the totality of his entitlement puts the appellant at a material disadvantage and it would be unfair or unjust to permit Mr Gonzales to resile from that agreed fact (see Thompson v Palmer (1933) 49 CLR 507 per Dixon J at 547).
It may be seen that I have reached a different conclusion to that of the Arbitrator concerning the construction of the provisions of s 66A and the force and effect of the agreement. I am of the opinion that Mr Gonzales is prevented, by reason of the agreement, from making the further claim which is the subject of the Application in these proceedings. It is not simply the terms of that agreement that give rise to that bar. I also find, on this review on the merits, that by reason of the agreement Mr Gonzales is estopped from denying that he has been paid all that entitlement to lump sum compensation resulting from the injury which occurred on 16 January 2006. Whilst much argument was advanced on behalf of the appellant founded upon the contents of the document headed “admissions” dated 16 October 2007, I have not taken that document into account in reaching the conclusions which I have attempted to summarise above. I have disregarded that evidence having regard to the fact that those admissions, whilst purporting to be concerned with the proceedings instituted in 2006, were executed by Mr Gonzales many months after the making of the award by the Commission and the making of the agreement. There is no explanation in the evidence as to why there was such a substantial delay between the conclusion of the proceedings and the execution of that document. In those circumstances the rights of the parties, which need to be determined having regard to the terms of agreement reached in February 2007, should not, in my view, be determined with any regard being had to the contents of that document.
Given my conclusion that Mr Gonzales is bound by the terms of his agreement it is clear that I am of the opinion that the Arbitrator has erred in his determination of the dispute. In the circumstances the appeal is upheld and the Arbitrator’s orders should be revoked.

Given my conclusion concerning the consequences in law of the agreement between the parties it is unnecessary to consider the alternative arguments raised on behalf of the appellant concerning proof of injury.

DECISION

The Arbitrator’s finding, orders and directions made in the Certificate of Determination dated 25 June 2010 are revoked and the following order is made in their place:
“Order that there be an award for the respondent”.

COSTS

No order as to costs of this appeal.

Kevin O’Grady
Deputy President
5 November 2010

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE