Di Paolo v Cazac Constructions (NSW) Pty Ltd - [2013] NSWWCCPD 8

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Di Paolo v Cazac Constructions (NSW) Pty Ltd [2013] NSWWCCPD 8
APPELLANT:		Giovanni Di Paolo
RESPONDENT:		Cazac Constructions (NSW) Pty Ltd
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-6299/12
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		5 November 2012
DATE OF APPEAL DECISION:		20 February 2013
SUBJECT MATTER OF DECISION:		Section 66A of the Workers Compensation Act 1987; complying agreement; consequence of finality concerning entitlement to lump sum compensation; distinction between injury and consequential condition.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Villari & Co Lawyers
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		1. The determination found in the Certificate of Determination dated 5 November 2012 is confirmed. 2. No order as to costs.

INTRODUCTION

Section 66A of the Workers Compensation Act 1987 (the 1987 Act) makes certain provisions for the making of a complying agreement between a worker and his/her employer concerning the worker’s entitlement to permanent impairment compensation, where such impairment has resulted from injury. This appeal concerns the question as to whether a worker who has entered such an agreement may bring a subsequent claim in regard to a further sum or sums in respect of permanent impairment said to result from the same injury.

BACKGROUND

Mr Giovanni Di Paolo (the appellant) commenced employment with Cazac Constructions Pty Ltd (the respondent) as a concreter in 1971. He remained in that employ until he ceased work by reason of incapacity in February 2007. The appellant had received injury to his right knee on 4 February 2006 in the course of his employment. He was treated by his general practitioner, Dr Paul Placanica and was subsequently referred to Dr Neville Rowden, orthopaedic surgeon. Arthroscopy of the right knee was conducted on 21 February 2006, following which the appellant was absent from work for a period of four weeks. Shortly thereafter he travelled overseas and returned to Australia in June 2006. Upon his return to work the appellant experienced difficulty managing his duties and his right knee continued to swell and cause pain. He ceased work on 26 February 2007 by reason of those symptoms. He has not returned to work since that time. The evidence is silent as to whether weekly compensation payments have been paid.
The appellant continued to experience painful symptoms in his knee and underwent right knee arthroplasty on 26 November 2007. He noticed that his gait had been altered by reason of favouring his right leg. He began to experience left knee pain in January 2008. He noticed a further alteration to his gait. A left knee arthroplasty took place on 3 August 2009. Earlier that year he had experienced back pain which he alleged was causally related to his change in gait.
On 26 August 2010 a Notice of Claim in respect of lump sum compensation was forwarded to the respondent’s insurer by the appellant’s solicitors. That claim was supported by a medical report of Dr Peter Giblin who had examined the appellant on 24 May 2010. That claim particularised alleged whole person impairment as being:
“The Section 66 Claim is as follows;
20% W.P.I for the Right lower extremity (knee)
4% W.P.I for the left lower extremity (knee)
6% W.P.I for the lumbar spine
COMBINED VALUE =
28% Whole Person Impairment, i.e. $47,500.00”
A further sum of $25,000 was claimed pursuant to s 67.
The parties conducted negotiations concerning settlement of the claim during February and March 2011. A Notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was served by the insurer upon the appellant on 17 March 2011. That Notice, which concerned the insurer’s decision and it’s reasons for denial of liability, stated in part:
“Decision and Matter(s) in Dispute
We advise that, after having carefully considered the available evidence, liability for your claim for whole person impairment of the lumbar spine is disputed as of 25.02.11
Reason(s) for the Decision
Liability for your claim for whole person impairment of the lumbar spine is disputed on the basis that you have not mentioned or reported any injury relating to the lumbar spine prior to Dr Giblin’s report dated 25.05.10. Furthermore, you have not sustained an injury to your lumbar spine as a result of your employment with Cazac Constructions and work is not a substantial contributing factor to your lumbar spine injury.
This decision is made in accordance with Section 33, 60&60AA, 66&67 of the Workers Compensation Act 1987.”
On 1 April 2011 the parties entered into a “complying agreement” within the meaning of s 66A of the 1987 Act which included the following “Agreement Details”:
“Agreement Details
Date of Injury:  4 February 2006
Date of Agreement:  1 April 2011
Degree of permanent   19% Whole Person Impairment in respect of both
impairment:   lower extremities (knees)”
That Agreement made provision for payment to the appellant of $26,000 pursuant to s 66 and $14,000 pursuant to s 67.
On 11 May 2012, the appellant’s solicitors forwarded a Notice of Claim to the insurer. The claim was, again, made in respect of the injury received on 4 February 2006 and was in respect of lump sum compensation particularised as follows:
“The Section 66 Claim is as follows;
·COMBINED 24% WPI (6% WPI lumbar spine and 19% WPI left and right lower extremity), i.e. $37,500 (less $26,000 received in 2011 for 19% WPI left and right lower extremity) = $11,5000.00
The Section 67 Claim is with respect to actual pain, distress/anxiety upon stabilisation of injury.
50% Relevant Maximum, ½ Past, ½ Future, $25,000.00 (less $14,000 already received in 2011) = $11,000.00”
On 21 June 2012, the insurer forwarded a facsimile to the appellant’s solicitors in which notice of the claim made on 11 May 2012 was acknowledged. Enclosed with that facsimile was a copy of the s 74 Notice dated 17 March 2011, which had earlier been forwarded to the appellant in response to the first claim.
A dispute arose concerning the appellant’s entitlement to further lump sum compensation and an Application to Resolve a Dispute (the Application) was filed with the Commission on 22 June 2012.
That Application was assigned for determination to Arbitrator Grotte. A telephone conference with the parties was conducted by the Arbitrator on 28 August 2012 at which time the respondent informed the Commission that it wished to argue “estoppels” and to place reliance upon my decision in CSR Limited v Gonzales [2010] NSWWCCPD 118 (Gonzales). No ruling was made at that time concerning the respondent’s entitlement or otherwise to argue those matters foreshadowed.
The matter came before the Arbitrator for conciliation and arbitration on 2 November 2012 at which time each party was represented by counsel. The matter proceeded to hearing and the Arbitrator delivered her determination extempore. A Certificate of Determination was issued on 5 November 2012 which provided:
“The determination of the Commission in this matter is as follows:
1. Award in favour of the respondent in respect of the applicant’s claim for lump sum compensation pursuant to section 66 for the lumbar spine.
2. No order as to costs.”

ISSUES IN DISPUTE

The appellant has filed both primary submissions and supplementary submissions in support of the appeal. The grounds of appeal are substantially repeated in the supplementary submissions. Those submissions appear to be a consolidation of argument advanced on the appellant’s behalf.
Between [1] and [8] of those supplementary submissions, a number of complaints suggesting error on the part of the Arbitrator are made. Having regard to the matters raised, it appears that the issues in dispute are whether the Arbitrator erred in:
(a) her construction and application of the provisions of s 66A of the 1987 Act concerning the force and effect of the Complying Agreement entered into by the parties on 1 April 2011;
(b) her consideration of, and conclusions concerning, the proper application of relevant authority concerning the construction of s 66A and the application of that section to the relevant facts;
(c) in her consideration of the evidence and argument advanced by the appellant, and
(d) failing to provide adequate reasons for her determination.

ON THE PAPERS

The appellant submits that, by reason of the complexity of the issues raised on the appeal, an oral hearing should be conducted. The respondent consents to the appeal being conducted on the papers without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.
Having regard to Practice Directions 1 and 6 and the documents 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. The documentary evidence before the Arbitrator is noted by her at T3. It is also recorded that the appellant had abandoned the claim in respect of hospital and medical expenses (s 60) that had been anticipated in the Application. No oral evidence was adduced at the hearing.
Much of the documentary evidence before the Arbitrator consisted of medical records relating to treatment rendered to the appellant. There is no dispute concerning the history of injury, nor with respect to the appellant’s allegation that his left knee disability results from the subject injury to the right knee. With respect to the alleged back disability the appellant relied upon the evidence of Dr Giblin found in his report of 25 May 2010 where, under the heading “Diagnosis” that practitioner stated:
“he has the diagnosis of a soft tissue injury to his right knee: 4 February 2006, consistent with the history of injury and resulting in two operations including a hemi arthroplasty. As a secondary result, he has the diagnosis of a soft tissue injury to his left knee and low back.”
Dr Giblin proceeded to assess the whole person impairment suffered as a result of the subject injury which was relied upon in the Notice of Claim which is set forth at [4] above. I note that the “combined value” of the impairments as assessed by Dr Giblin is, having regard to the relevant table, numerically less (by two per cent) than the aggregate of those percentage impairments.
The respondent had arranged for the appellant to be examined by Dr J Brian Stephenson, orthopaedic surgeon, in November 2010. Dr Stephenson provided a report to the insurer dated 10 November 2010. A copy of that report was forwarded to the appellant’s solicitors during the negotiations conducted in 2011. The appellant tendered that report in evidence.
Dr Stephenson, under the heading “History of Injury”, recorded in his report after a description of the right knee injury occurring in February 2006: “in addition, he has developed lumbar pain related to his gait, he said”. Dr Stephenson does not address the question of causal relationship between the lumbar pain and the injury of 2006 in that report. However, he has provided assessments of whole person impairment being 18 per cent in respect of the right leg, one per cent in respect of the left leg and six per cent in respect of the lumbar spine.
There are in evidence copies of the Notices of Claim forwarded to the insurer in 2010 and in 2012. The relevant portions of those claims have been noted at [4] and [8] above. A written statement made by the appellant dated 11 September 2012 includes detail of his instructions given to his solicitor concerning settlement of the claim in March 2011. It is there stated:
“I understood that [the respondent’s offer] was only in relation to my bilateral knee injuries and that the claim for my lower back injury had been declined. I signed a Complying Agreement which stated that I was receiving compensation for ‘19% Whole Person Impairment in respect of both lower extremities (knees)’.”
The appellant had tendered copies of emails passing between his solicitors and the respondent’s insurer concerning negotiations conducted in March 2011 relating to the initial claim. The first is from the insurer dated 23 March 2011 which acknowledged receipt of a letter also dated 23 March 2011 (which, I note, is not in evidence). That email stated that the insurer’s “counter offer” was “[a]gree with 19% WPI- $26,000; Section 67- $10,000”. The solicitor’s reply on 24 March 2011 addressed only the quantum of s 67 lump sum ($15,000). The last email, from the insurer also dated 24 March 2011, contained a “final offer for Section 67” in the sum of $14,000.
There is in evidence a copy of the complying agreement entered into between the parties dated 1 April 2011. The content of that document is discussed hereunder and I note that pertinent matters have been summarised at [6] and [7] above.
The balance of the documents which were in evidence before the Arbitrator are not directly relevant to the matters raised on this appeal and need not be summarised.

Submissions before the Arbitrator

At the commencement of the hearing it was made clear by the appellant’s counsel that objection was taken to any argument advanced by the respondent based upon estoppel. That objection was founded upon the undisputed fact that such a defence had not been foreshadowed in the Notice issued pursuant to s 74 by the insurer. The Arbitrator’s approach was to permit the parties to put all relevant submissions, including those relating to the defence which was the subject of objection. As will be seen, the Arbitrator dealt with that matter of dispute in the course of her Reasons given for her determination of the dispute.
Counsel for the respondent argued that the initial claim made in 2011, which included a claim in respect of the lumbar spine as assessed by Dr Giblin, had been the subject of compromise between the parties and had settled on terms as evidenced in the s 66A agreement. It was put that, whilst no mention of the alleged whole person impairment in respect of the lumbar spine was made in that agreement, the effect of the Agreement was such as to preclude the appellant from seeking in the present proceedings an award in respect of additional lump sums by reason of disability in the lumbar spine. The decision of Gonzales was referred to in the course of argument. It was put that the decision in Gonzales supports the proposition that “the purpose of s 66A is to allow finality by way of a compromise for claims under s 66 and s 67” (at T9). It was further put “that under s 66A [the appellant] is estopped from bringing this claim”.
Counsel appearing on behalf of the appellant first addressed the question as to whether the respondent should be entitled to rely upon the defence as outlined by its counsel founded upon the finality of the s 66A agreement and estoppel. The appellant relied upon the prohibition found in s 289A(1) against referral of a dispute for determination by the Commission that has not been previously notified as disputed. It appears that counsel acknowledged that the Commission has a discretion pursuant to s 289A(4) of the 1998 Act to permit a matter that had not been the subject of notice in a s 74 Notice to be referred for determination. Counsel drew attention to the fact that the s 74 Notice had clearly raised the present issue of dispute, being entitlement in respect of impairment of the lumbar spine.
An argument was advanced that, given the fact that the “lumbar spine” was in dispute, such was a “live issue” and required determination. In the circumstances, it seemed to be argued, it was permissible to settle the claims in respect of other parts of the body and to enter into a s 66A agreement in respect of such settlement. It was argued that the decision in Gonzales (at [92]) suggests that such an approach is appropriate and that a subsequent claim in respect of lumbar spine impairment may be made. Counsel also had earlier suggested a distinction on the facts between the present matter and Gonzales given that in Gonzales, unlike the present matter, there was a “set of admissions…in conjunction with the agreement”. In the course of argument, reference was made by counsel to the correspondence in evidence which relates to negotiations leading to settlement. It was emphasised that no mention of the lumbar spine was made in that correspondence. It was further put that the insurer’s offer was in respect of impairment suffered in the appellant’s legs.
Counsel for the respondent replied by arguing that the settlement was in respect of the degree of permanent impairment “that has resulted from the injury” as was stated in Gonzales. The only agreement, notwithstanding the ambit of the claim, was in respect of impairment suffered in the legs, by way of compromise. It was further put that the exceptions found in s 66A(3) concerning finality of such an agreement were of no relevance.
Counsel for the appellant put a further submission in which reliance was placed upon the decision in Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92 (Warwar). That decision, it was put, requires that the Commission “take into account all the surrounding circumstances” when construing the s 66A agreement where the parties “disagree as to its meaning” (at T20).

The Arbitrator’s decision

The Arbitrator, following a summary of relevant facts and argument as advanced on behalf of the parties, addressed the objection raised by the appellant that, by reason of the terms of s 289A of the 1998 Act, the respondent should not be permitted to raise the “previously un-notified matter of estoppel”. The Arbitrator noted that the respondent had raised matters relating to the proposed defence at the teleconference conducted prior to the hearing. The Arbitrator expressed her satisfaction that it was in the interests of justice that the respondent be allowed to raise the estoppel question and she further noted that the appellant had not been denied procedural fairness given that all relevant matters had been addressed in a further statement made by him and that further documentation had been tendered in evidence.
The Arbitrator noted that reliance had been placed by the respondent upon that which was stated in the decision of Gonzales. It was her view that, having regard to that decision, it was important to note that the terms of s 66A include reference to “injury” which “refers not to separate body parts but to the injurious event and consequent pathology”.
The Arbitrator proceeded to note that there had been a denial of liability in respect of “the lumbar spine” and that such claim was in respect of a “consequential loss”. It was further noted by the Arbitrator that the claim in respect of the lumbar spine which was made in the first claim, was the same claim as made in the second Notice of Claim and was based on the same medical evidence. Following further consideration of matters raised in Gonzales the Arbitrator concluded:
“in my view the worker negotiated a settlement in respect of his lump sum claims in 2010 and 2011, which included the claim for the lumbar spine”.
The Arbitrator further concluded that the appellant was “precluded from bringing his claim for permanent impairment in respect of the lumbar spine, resulting from injury on 4 February 2006, by virtue of the complying agreement dated 1 April 2011”. The orders as noted at [12] above were entered by the Arbitrator.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The primary complaint made on behalf of the appellant is that the Arbitrator erred in her conclusion that the appellant “was bound by the complying agreement signed on 1 April 2011 for injury to the lumbar spine”. In so concluding the Arbitrator had regard to the terms of s 66A which, as at the date of the agreement, provided:
“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.”
There is no dispute between the parties that the agreement entered into on 1 April 2011 is a complying agreement within the meaning of s 66A. The Arbitrator considered that which was said in the matter of Gonzales concerning the purpose of s 66A and the effect of an agreement entered into by the parties under that section. Particular reference was made to that which I stated in Gonzales at between [89] and [91] of that decision where the following appears:
“89. 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)).
90. 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)).
91. 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 Arbitrator’s conclusion, which is the subject of complaint, is to be found at T26 where it was stated:
“In my view the worker negotiated a settlement in respect of his lump sum claims in 2010 and 2011, which included the claim for the lumbar spine”.
The appellant argues that he is not precluded from:
“having a (sic) multiple complying agreements while commencing further proceedings with (sic) the Workers Compensation Commission for determination, notwithstanding that the injury arises, including consequential injuries, from the one injurious event. It is further asserted that the decision of Gonzales is authority for that proposition” (at [9] of Submissions).
The appellant’s submission must be rejected. It is to be noted that the term “consequential injuries” has been adopted by the appellant when argument is advanced. The use of such term is wrong and thus misleading. The appellant’s allegation is that the alleged lumbar spine disability is a consequence of his altered gait which, in turn, was causally related to the right knee injury which occurred on 4 February 2006.
The lumbar spine impairment in respect of which this claim is made, if proven, is the result of the injurious event of 2006. However, it must be emphasised that such impairment is not an “injury” in terms of s 4 of the 1998 Act, but rather a consequential condition being a result of the injury (see discussion by Roche DP, in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35] – [49] and [61]). The appellant’s assertion (at [11] of Submissions) that Gonzales is authority for the proposition that “there will be circumstances where parties may not reach a final binding s 66A complying agreement with respect to all injuries” is wrong and, as is argued by the respondent, is a “misinterpretation” of what was there stated (Respondent’s Submissions at [15]).
The appellant’s argument as found between [13] and [17] of Submissions borders on the suggestion that the meaning of the complying agreement is to be determined by reference to the subjective intent of the parties. The fact that reference is made in that agreement to “lower extremities”, and that no reference is made to lumbar spine leads, it is argued, to the conclusion that the agreement was limited to entitlement in respect of those limbs alone.
I do not accept the argument advanced. As is made clear by those authorities to which the appellant refers (at [15] of Submissions), the meaning of the terms of a contract are to be determined objectively. Thus, having regard to the surrounding circumstances known to the parties, and the purpose and object of the transaction, what requires determination is “what reasonable parties would objectively understand the complying agreement to mean”: see Warwar at [45]. That question takes into account circumstances at the time of the making of the contract.
In the present case, the claim made included alleged entitlement to lump sums in respect of lumbar spine impairment. The claim was settled by agreement. Such agreement, it is common ground, is a complying agreement within the meaning of s 66A. Whilst it is correct, as put by the appellant, that express reference is made to “lower extremities” and that there is no reference to “lumbar spine” in that agreement, the contract must, having regard to the terms of that section, as I have attempted to outline in Gonzales, be taken to fix the quantum of entitlement: s 66A(2). Evidence concerning the appellant’s knowledge and subjective belief as found in his statement may have relevance to a consideration of surrounding circumstances. However, it must be noted that at the time of settlement the appellant had the benefit of legal advice. That there were no “agreed facts and admissions” associated with the agreement is, contrary to what seems to be argued, not determinative concerning the effect of that agreement.
The purpose of the provision, as stated in Gonzales, was that such complying agreements permit “a worker and an employer” to reach a final and binding agreement concerning entitlements to lump sum compensation. The section represents an exception to the “no contracting out provision” being s 234 of the 1998 Act. It was Parliament’s intention that such agreements provide finality, subject only to those exceptions appearing in the section. It is not argued that the provisions of s 66A(3) have any relevance to the present facts.
It may be seen that the appellant’s submissions concerning error in the Arbitrator’s approach to the construction and application of s 66A are rejected. I have earlier attempted to outline the distinction between an “injury” within the meaning of s 4 of the 1998 Act and a consequential condition which, here, is the impairment of the lumbar spine. The respondent in its s 74 Notice, whilst disputing entitlement “for whole person impairment of the lumbar spine” failed in that document to properly distinguish consequential disability and injury. That, in my view, is of no consequence. As put by counsel at the hearing before the Arbitrator, and as argued on appeal, the agreement reached was a compromise in respect of the appellant’s entitlement to lump sum compensation. Such compromise was the subject of agreement, and the provisions of s 66A were invoked. Whilst there was no express term of the agreement concerning payment of “the full extent of any [lump sum] entitlement” as there was in Gonzales, the terms of s 66A, in particular s 66A(2), have the consequence of finality as has been addressed above.
As is noted in submissions put on behalf of the respondent, the appellant has not clearly articulated the “evidence and submissions” which the Arbitrator is said to have considered incorrectly or failed to consider. I am of the view that the evidence as summarised by the Arbitrator in the course of her Reasons demonstrates that she has taken into account all that evidentiary material relevant to resolution of the dispute. The foundation of the argument advanced by the appellant before the Arbitrator was that the respondent had denied liability in respect of the lumbar spine. That argument is acknowledged at T25. The Arbitrator proceeded to characterise that part of the claim as being in respect of “a consequential loss”. Her reasoning, in particular her conclusion as to the finality of the complying agreement has, in my view, taken into account those arguments advanced by counsel. In my view, the reasons given by the Arbitrator for her determination were sufficient, and, in so far as it is suggested that those reasons were deficient, I reject such argument. In reaching my conclusions, I have taken into account those matters raised by the appellant in his Submissions in reply, which substantially reiterate matters raised in earlier argument. No relevant error has been demonstrated. The appeal should be dismissed. Appropriate orders are made below.

DECISION

The determination found in the Certificate of Determination dated 5 November 2012 is confirmed.

COSTS

No order as to costs.

Kevin O'Grady

Deputy President
20 February 2013

I, KATHRYN CAMP, 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