Etherton v ISS Property Services Pty Limited

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53
APPELLANT: Wayne Ronald Etherton
RESPONDENT: ISS Property Services Pty Limited
INSURER: Self-insured
FILE NUMBER: A1-6255/18
ARBITRATOR: Mr J Wynyard
DATE OF ARBITRATOR’S DECISION: 18 March 2019
DATE OF APPEAL DECISION: 28 October 2019
SUBJECT MATTER OF DECISION: Estoppel; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 considered; Workers Compensation Legislation Amendment Act 2018; Pt 19L of Sch 6 of the Workers Compensation Act 1987 considered
PRESIDENTIAL MEMBER: President Judge Phillips
HEARING: On the papers
REPRESENTATION: Counsel:
L D Robison (Appellant)
Solicitors:
Turner Freeman (Appellant)
Astridge & Murray (Respondent)
ORDERS MADE ON APPEAL:

1.    The Arbitrator’s Certificate of Determination dated 18 March 2019 is confirmed.

INTRODUCTION

  1. This appeal challenges the Arbitrator’s finding that the worker, Mr Wayne Etherton, is estopped from pursuing his claim for permanent impairment compensation due to the entering of consent orders in an earlier matter. This appeal further challenges the Arbitrator’s decision to proceed to determine a medical dispute relying upon the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act) effective 1 January 2019.

BACKGROUND

  1. On 15 April 2015, Wayne Ronald Etherton injured himself when he lost his footing and fell forward on his right leg whilst working as a cleaner for ISS Property Services Pty Limited (the respondent/employer).

  2. On 24 April 2015 Mr Etherton completed a worker’s injury claim form. On 15 May 2015, the employer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing Mr Etherton’s claim on the following bases:

    “1.     DECISION AND MATTER(S) IN DISPUTE

    ·The circumstances and mechanism of injury occurring on 15 April 2015 are inconsistent and in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.

    ·The nature and extent of the injuries sustained on 15 April 2015 is in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.

    ·Your employment was not a substantial contributing factor to any injury sustained on 15 April 2015 within the meaning of Section 9A of the Workers Compensation Act 1987.

    ·You have fully recovered from the effects of any injury sustained on 15 April 2015.

    ·Any disability, incapacity or requirement for treatment is due to non-work related conditions or events.

    ·The degree of incapacity suffered by you is in dispute.

    ·You have no entitlement to weekly payments of compensation. Reliance is placed generally on Section 33 of the Workers Compensation Act 1987.

    ·It is disputed that you have any entitlement to payment of medical and related treatment expenses under Section 60 of the Workers Compensation Act 1987.”

  3. On 9 February 2016, Mr Etherton filed an Application to Resolve a Dispute (ARD) (Matter Number 658/16) for weekly compensation and the cost of proposed right total knee replacement surgery. Part 4 of the ARD pleaded the occurrence of…

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Details
Case
[2019] NSWWCCPD 53
Decision Date

CaseChat Overview and Summary

In the case of Etherton v ISS Property Services Pty Limited, the applicant, Mr Etherton, filed an Application to Resolve a Dispute (ARD) for weekly compensation and the cost of proposed right total knee replacement surgery. The employer, ISS Property Services Pty Limited, disputed the claim. The dispute was resolved through consent orders, which resulted in payments of weekly compensation and medical expenses to Mr Etherton. The matter before the court was whether the consent orders should be enforced and if estoppel could be applied to prevent the employer from disputing the claim further.

The legal issues the court had to decide included whether estoppel applied to prevent the employer from disputing the claim, and whether the consent orders should be enforced. The court also had to consider the impact of the Workers Compensation Legislation Amendment Act 2018 and Pt 19L of Sch 6 of the Workers Compensation Act 1987 on the matter.

The court found that estoppel did not apply in this case, as the employer had not made any representations that could be relied upon by Mr Etherton to his detriment. The court also found that the consent orders should be enforced, as they were made voluntarily and without any duress or undue influence. The court further found that the Workers Compensation Legislation Amendment Act 2018 did not apply retrospectively, and therefore did not affect the validity of the consent orders.

The final orders of the court were that the consent orders be enforced, and that the employer pay Mr Etherton the agreed amounts for weekly compensation and medical expenses. The court also dismissed the employer's application to set aside the consent orders.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 18 March 2019 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 24 April 2015 Mr Etherton completed a worker’s injury claim form. On 15 May 2015, the employer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing Mr Etherton’s claim on the following bases:“1. DECISION AND MATTER(S) IN DISPUTE·The circumstances and mechanism of injury occurring on 15 April 2015 are inconsistent and in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.·The nature and extent of the injuries sustained on 15 April 2015 is in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.·Your employment was not a substantial contributing factor to any injury sustained on 15 April 2015 within the meaning of Section 9A of the Workers Compensation Act 1987.·You have fully recovered from the effects of any injury sustained on 15 April 2015.·Any disability, incapacity or requirement for treatment is due to non-work related conditions or events.·The degree of incapacity suffered by you is in dispute.·You have no entitlement to weekly payments of compensation. Reliance is placed generally on Section 33 of the Workers Compensation Act 1987.·It is disputed that you have any entitlement to payment of medical and related treatment expenses under Section 60 of the Workers Compensation Act 1987.” On 9 February 2016, Mr Etherton filed an Application to Resolve a Dispute (ARD) (Matter Number 658/16) for weekly compensation and the cost of proposed right total knee replacement surgery. Part 4 of the ARD pleaded the occurrence of an injury to Mr Etherton’s right knee on 15 April 2015. The injury was described as:“Aggravation of osteoarthritis in the right knee with partial tear of the medical [sic, medial] meniscus and medical [sic, medial] collateral ligament of the right knee.” It was alleged that:“The worker sustained an injury when descended a series of steps at Camden South Public School and fell in the course of doing so, striking the right knee.” On 3 March 2016, Mr Etherton underwent a right total knee replacement under the care of Dr Martin Laird, Orthopaedic Surgeon. On 5 May 2016, Consent Orders were entered into by the parties in Matter Number 658/2016. On 17 May 2016 amended Consent Orders were entered into by an Amended Certificate of Determination which, amongst other things, resulted in payments of weekly compensation and s 60 expenses to Mr Etherton. The amended Consent Orders provided as follows:“AMENDED CERTIFICATE OF DETERMINATION – CONSENT ORDERSThis certificate is issued pursuant to section 294 of the Workplace Injury Management and Workers Compensation Act 1998 Matter Number: 658/16Applicant: Wayne Ronald EthertonRespondent: ISS Property Services Australia LimitedDate of Determination: 5 May 2016Date of Amendment: 17 May 2016In this matter a conciliation/arbitration was held where the parties came 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 2011, the determination of the Commission in this matter is as follows:1. The name of the respondent is amended as per the Reply.2. The Application to Resolve a Dispute is amended at part 4 to add an allegation of injury to the right knee sustained as a result of the nature and conditions of employment over the entire period of the applicant's employment with the respondent up to 15 April 2015.3. There is an Award for the respondent in respect of allegation of injury to the right knee due to the nature and condition of employment.4. The respondent is to pay to the applicant weekly payments of compensation as follows:(a)$731.50 per week from 18 May 2015 to 16 August 2015 pursuant to section 36 of the Act, and(b) $614.65 per week from 17 August 2015 to 15 November 2015 pursuant to section 37 of the Act.The above is agreed to total $17,500. Otherwise and thereafter there is an award for the respondent for all claims for weekly payments.5. The respondent is to meet the cost of reasonably necessary medical and related treatment expenses up to the sum of $3,871.25 for expenses incurred up to 4 March 2016 upon production of accounts, receipts and/or Notice of Charge. Otherwise and thereafter there is an award for the respondent for section 60 expenses, including an award for the respondent for the claim for the cost of a right total knee replacement on the grounds that the right total knee replacement is not reasonably necessary as a result of the right knee injury on 15 April 2015.Consent findings:6. The parties have agreed to the following consent findings:a. That since 15 November 2015 the applicant suffers no incapacity for his pre-injury employment as a result of the subject work injury.b. That since 4 March 2016 the applicant requires no medical hospital or related treatment as a result of the subject injury.c. That since 4 March 2016 the applicant has recovered from the effects of the subject work injury.The following is not a determination of the Commission, however, I note that the parties have agreed the following:7. The applicant admits and the parties agree that upon payment of the above compensation he has received all compensation entitlements in respect of the subject work injury.Josephine SnellArbitrator”

Ratio Decidendi

Legal Principle Established

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