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

1. 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.

1. 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.

2. 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”.

3. 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…