| 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
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
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).
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…
Keep reading for free
Create a free CaseChat account to read Etherton v ISS Property Services Pty Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] NSWWCCPD 53
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.