Fisher v Transport for NSW (Sydney Trains)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fisher v Transport for NSW (Sydney Trains) [2022] NSWPIC 158
APPLICANT:	John Fisher
RESPONDENT:	Transport for NSW (Sydney Trains)
MEMBER:	John Isaksen
DATE OF DECISION:	12 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for further lump sum compensation as provided for by clause 11 of Schedule 8 of the Workers Compensation Regulation 2016; whether it is necessary to establish deterioration of a condition before referral for assessment is made; reference to Abou-Haidar v Consolidated Wire P/L; the extent to which an estoppel can be relied upon by the employer from a previous complying agreement; reference to CSR limited v Gonzales and Bi-Lo P/L v Brown; Held– not necessary for the worker to establish that he has had a deterioration of his condition since previous complying agreement; Gonzales distinguished and estoppel limited to a previous agreement that the worker had 46% whole person impairment; referral for assessment for permanent impairment of the body systems claimed by the worker.
DETERMINATIONS MADE:	1. The applicant can make a further claim for lump sum compensation.
ORDERS MADE:	1. This matter is remitted to the President for referral to a Medical Assessor as follows: Date if injury: 2 November 2002 Body Parts: Lumbar spine nervous system (bladder, ano-rectal impairment and sexual impairment) Method of Assessment: Whole Person Impairment 2. The documents to be referred to the Medical Assessor are as follows: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) A copy of this decision.

STATEMENT OF REASONS

BACKGROUND

John Fisher, the applicant in these proceedings, sustained an injury to his lower back on 2 November 2002 while employed as a motor mechanic with State Transit Authority (the respondent).
Mr Fisher was lifting a heavy tow bar when he sustained injury to his lower back.
The respondent has admitted liability for this injury.
Mr Fisher underwent an L4/5 discectomy performed by Dr van Gelder on 12 November 2002 and an L4/5 fusion performed by Dr Moloney on 13 April 2005.
Mr Fisher claims to have sustained bladder, ano-rectal and sexual impairment due to damage of the nervous system as a result of the work injury. That has not been disputed by the respondent in any of the material filed with the Personal Injury Commission (Commission) in this application.
On 26 September 2006 the Workers Compensation Commission published a “Registration of section 66A lump sum agreement” wherein it was recorded that Mr Fisher and the respondent had agreed that Mr Fisher had 46% whole person impairment.
Mr Fisher now makes a claim for 89% whole person impairment, which is based upon assessments of impairment made by Dr Rushworth, consultant neurosurgeon, in a report dated 6 April 2006. Those assessments of impairment are calculated as follows:
(a) lumbar spine  28% whole person impairment;
(b) neurological impairment of the bladder        60% whole person impairment;
(c) neurological ano-rectal impairment              50% whole person impairment, and
(d) neurological sexual impairment  20% whole person impairment.
The respondent has issued a dispute notice dated 21 December 2021 wherein it disputes the claim made by Mr Fisher on the following grounds:
(a)    that Mr Fisher cannot make more than one claim for lump sum compensation (section 66 (1A) of the Workers Compensation Act 1987 (the 1987 Act));
(b)    that Mr Fisher does not meet any of the exemptions provided for by
section 66A (3) of the 1987 Act for additional lump sum compensation following a complying agreement because the agreed degree of impairment is not manifestly too low, the agreement was not entered into by fraud or misrepresentation, and there is no medical evidence of any increase in the degree of permanent impairment beyond what was previously agreed to between the parties, and
(c)    Mr Fisher is estopped from advancing a further claim for lump sum compensation which conflicts with the previous complying agreement.
Mr Fisher relies upon clause 11 of Schedule 8 of the Workers Compensation Regulation 2016 which allows for one further lump sum compensation claim to be made in respect of an existing impairment, being a permanent impairment resulting from an injury for which a lump sum compensation claim was made before 19 June 2012.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant can make a further claim for lump sum compensation (section 66 of the 1987 Act and clause 11 of Schedule 8 of the Workers Compensation Regulation 2016).

PROCEDURE BEFORE THE COMMISSION

At the telephone conference conducted on 7 March 2022 the parties agreed that the dispute could be determined following written submissions. The Application to Resolve a Dispute already contained written submissions made on behalf of Mr Fisher. The following timetable was then agreed to by the parties:
(a) the respondent to file and serve written submissions by 28 March 2022, and
(b) the applicant to file and serve written submissions in reply by 11 April 2022.
The Direction issued by the Commission also included the following:
“3. The parties are invited to particularly address the following:
(a)    The effect of Regulation 44 in regard to the reports relied by the applicant of Dr Fearnside and Dr Rushworth, who are both neurosurgeons;
(b)    The issue of any estoppel relied upon by the respondent; and
(c)    The body systems and body parts to be included in any referral to a Medical Assessor if the applicant is otherwise able to have the Commission make a referral for an assessment of permanent impairment.”

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    written submissions filed by the respondent on 28 March 2022, and
(d)    written submissions in reply filed by the applicant on 6 April 2022.
Mr McManamey of counsel prepared the written submissions on behalf of Mr Fisher. Mr Stockley of counsel prepared the written submissions on behalf of the respondent.

Relevant legislation

Section 66 of the 1987 Act relevantly provides:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Clause 11 of Schedule 8 the Workers Compensation Regulation 2016 provides:

“11 LUMP SUM COMPENSATION: FURTHER CLAIMS

(1)     A further lump sum compensation claim may be made in respect of an existing impairment.
(2)     Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3)     Despite section 66(1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4)     For the purposes of subclauses (1) and (2)—
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66(1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment--
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii) in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.

(5) The following provisions are to be read subject to this clause—
(a)section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c)clauses 10 and 19 of this Schedule.

(6) In this clause--
"existing impairment" means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
"further lump sum compensation claim" means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
"lump sum compensation claim" means a claim specifically seeking compensation under section 66 of the 1987 Act.”

The applicant’s submissions

Mr Fisher relies upon clause 11 of Schedule 8 to the Workers Compensation Regulation 2016, which provides for one further lump sum claim for compensation to be made by a worker who had made such a claim before 19 June 2012.
Mr Fisher submits that it is not necessary to demonstrate a deterioration in a worker’s condition before a medical dispute is referred for an assessment by a Medical Assessor. He relies upon what was said by DP Roche in Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 (Abou-Haidar) at [55]:
“It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment. A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”
Mr Fisher submits that the same conclusion in Abou-Haidar was reached in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCC PD 334 (Caulfield) and Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44 (Guzman).
Mr Fisher also relies upon the decision of Roche v Australian Prestressing Services Pty Ltd [2013] NSWWCCPD 7 (Roche), wherein DP Roche held that there is no estoppel in a changing situation, and a complying agreement does not prevent a further claim for permanent impairment compensation.

The respondent’s submissions

The respondent submits that Mr Fisher has provided no evidence of any change of circumstances since the complying agreement was entered into between himself and the respondent in 2006. There were several permanent impairment assessments available in 2006 ranging from 37% permanent impairment assessed by Dr O’Neill to 89% permanent impairment assessed by Dr Rushworth. It can be inferred that the agreed figure of 46% was a compromise between the parties.
The respondent submits that absent a change of circumstances capable of supporting a finding of deterioration since 2006, or absent evidence that would vitiate the 2006 agreement, the agreement stands as an embodiment of a compromise between the parties, and any application to argue otherwise is estopped by application of legal principle.
Reference is made to Roche and what was said by DP Roche at [3] that: “there is no estoppel in a changing situation, such as a person’s physical condition, and impairments which arise from the same incident are assessed together and not separately.” The respondent submits that Mr Fisher has not provided any evidence of there being a changing situation since 2006.
The respondent refers to DP Roche stating in Roche at [54]: “There may well be circumstances where a complying agreement creates an estoppel”, and then cites the decision of CSR Ltd v Gonzales [2010] NSWWCCPD 118 (Gonzales) in support of this statement.
The respondent submits that in Gonzales the worker was estopped from bringing a further claim for 3% whole person impairment for scarring when that impairment had not been included two years earlier in a section 66A agreement for 13% whole person impairment.
The respondent submits that by parity of reasoning, the same result should apply in this dispute. There is no suggestion that Mr Fisher believed in 2006 that he was taking a down-payment on his lump sum entitlement pending further applications.
The respondent submits that the application brought by Mr Fisher is not an application for assessment of a further loss but rather an attempt to undo the earlier agreement.

The applicant’s submissions in reply

Mr Fisher relies upon the decision of Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; 1 DDCR 648 (Dimovski), which in turn referred to O’Donel v Commissioner for Road Transport [1938] HCA 15; (1938) CLR 744 (O’Donel), that a claim for additional impairment does not proceed on the basis that at one point in time there was a degree of permanent impairment and it is necessary to demonstrate an increase in impairment before there can be a referral to a Medical Assessor.
The complying agreement in this dispute is like the consent orders in Dimovski. The only estoppel is that the degree of impairment in 2006 was 46%, so that there is no restriction on the assessment which is now sought by Mr Fisher.
Mr Fisher submits that the respondent confuses the concept of estoppel where there can be no estoppel about a situation capable of change and the ultimate determination of what the degree of impairment is at this stage. The respondent’s position is that it fails to recognise that the legal task is to assess the degree of impairment without legal restraints flowing from the earlier complying agreement.
Mr Fisher submits that if it is necessary to show a deterioration then that will be demonstrated by the forthcoming assessment.
Mr Fisher also submits that the report of Dr Rushworth was not disclosed to the respondent at the time of the settlement in 2006, but the report was only obtained in late 2021when it was eventually provided by the respondent.

FINDINGS AND REASONS

Whether the applicant can make a further claim for permanent impairment

Mr Fisher relies upon clause 11 of Schedule 8 to the Workers Compensation Regulation 2016 to make one further lump sum compensation claim, despite the provisions of section 66 and clause 15 of Part 19H of Schedule 6 of the 1987 Act, section 322A of the 1998 Act, and clauses 10 and 19 of clause 11 of Schedule 8 to the Workers Compensation Regulation 2016.
The condition placed upon the worker who wants to rely on clause 11 of Schedule 8 the Workers Compensation Regulation 2016 is that a lump sum compensation claim had been made before 19 June 2012. Mr Fisher meets that condition. There is no requirement in that clause that Mr Fisher has to provide evidence of deterioration in his condition to qualify for the benefit provided by that clause.
Any estoppel relied upon the respondent is limited to the registration of section 66A lump sum agreement recorded by the Workers Compensation Commission on 26 September 2006. That is consistent with what DP Roche said in Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 (Brown), where the worker agreed to 4% whole person impairment for the upper right extremity, but then brought a further claim for impairment of the cervical spine and lumbar spine. The Deputy President referred to Kaibau v Gillespie’s Produce and Packing Pty Ltd [2006] NSDWWCCPD 168 (Kaibau) and said at [50]:
“In Kaibau, it was accepted that consent orders can create estoppels. However, the extent of the estoppel in that case was limited to the specific orders made, which had effect at the date they were made but did not bind the parties into the future.”
Deputy President Roche then said at [51]:
“The estoppel argument in the present appeal is much weaker because there are no consent orders and the parties must look to the complying agreement. The only issue necessarily decided by the complying agreement was that, as at 14 August 2013, Ms Brown suffered an agreed four per cent whole person impairment as a result of an accepted injury to her right upper extremity. That did not determine whether Ms Brown suffered an injury to her lumbar spine, cervical spine and shoulders.”
It follows that the only issue necessarily decided by the registration of the section 66A lump sum agreement as it applies in this dispute is that Mr Fisher had 46% whole person impairment in September 2006.
The respondent relies upon the decision of Gonzales where the worker was estopped from bringing a further claim for 3% whole person impairment for scarring when that impairment had not been included two years earlier in a section 66A agreement for 13% whole person impairment. However, there are significant differences in the facts of that case and the evidence that has been provided in this dispute.
The first observation to make is that there is no copy of the complying agreement which allowed for the registration of that agreement as provided for by section 66A of the 1987 Act in any of the material filed with the Commission. The estoppel relied upon by the respondent can therefore go no further than that in 2006 Mr Fisher agreed with the respondent that he had 46% whole person impairment as a result of the injury he sustained on 2 November 2002.
In Gonzales, the worker entered into a complying agreement which contained quite extensive terms and a separate document entitled “Admissions”. The complying agreement included at [34]:
“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.”
The “Admissions” included at [34]:
“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.”
Deputy President O’Grady disregarded the “Admissions” but said in regard to the agreement at [93]:
“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] HCA 61; (1933) 49 CLR 507 per Dixon J at 547).”
Deputy President O’Grady then said at [94]:
“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.”
In this dispute the complying agreement has not been made available for scrutiny. There is no information available as to what body parts were to be included in the agreement. The estoppel sought to be relied upon by the respondent cannot be advanced any further than what is contained in the registration of section 66A lump sum agreement.
The unique circumstances of Gonzales were recognised in Brown, when DP Roche said at [37]:
“While there may well be circumstances where a complying agreement creates an estoppel (CSR Ltd v Gonzales [2010] NSWWCCPD 118 (Gonzales) at [81]), neither the facts nor the result in that case assist Bi-Lo. Mr Gonzales was estopped from claiming additional lump sum compensation because of the combined effect of a complying agreement and signed admissions and agreed facts. There are no admissions or agreed facts in the present case and, in particular, no orders based on such admissions.”

There are no admissions or agreed facts in this dispute. I therefore do not consider that the respondent can rely on the decision of Gonzales to support the argument that by parity of reasoning, the same result should apply in this dispute.
I intend to determine that Mr Fisher is allowed a referral to a Medical Assessor for an assessment of whole person impairment. That is reinforced by what was said in Abou-Haidar. That decision makes the clear distinction between issues of liability (to be determined by a Member of the Commission) and issues that arise from a medical dispute (which are dealt with by Part 7 of Chapter 7 of the 1987 Act). That is not only referred to in the last sentence at [55] in that decision (which is referred to in Mr Fisher’s submissions), but also at [60] where DP Roche said:
“The insurer has not disputed whether Mr Abou-Haidar made a proper claim for lump sum compensation on 5 February 2010. It raised no liability issue, but merely disputed whether there had been a deterioration. The question of deterioration is not strictly relevant and certainly not determinative of a later claim for whole person impairment.”
Deputy President then said at [62]:
“In circumstances where the only compensation claimed is lump sum compensation in respect of an accepted injury, the legislation has reserved the assessment of such claims (where there is a medical dispute) to AMSs. Once a worker has properly made a claim, and liability issues have been determined, there is no need for a worker to establish a plausible case of a deterioration.”
The respondent has not disputed liability for the injury or any of the body parts claimed for assessment by Mr Fisher. There is therefore no bar to the referral to a Medical Assessor for an assessment of whole person impairment.

The body parts and systems to be referred for assessment by a Medical Assessor

The body systems claimed in the ARD are the lumbar spine system and the urinary and reproductive systems. At the telephone conference on 7 March 2022, I asked the parties to check if the urinary and reproductive systems were correct because Dr Rushworth had assessed Mr Fisher as having impairment of the bladder, ano-rectal impairment and sexual impairment under Chapter 13 of the AMA 5 guidelines, being for the nervous system.
Mr Fisher in his submissions in reply has advised that impairment should be assessed in accordance with Chapter 13 of the AMA 5 guidelines, to the extent that this modified by the NSW workers compensation guidelines for the evaluation of permanent impairment.
The respondent states that it is the responsibility of the moving party to clarify what body systems are to be assessed for permanent impairment. The respondent submits that in the event that there is a referral for assessment of permanent impairment, then the body systems will have to be clarified.
I consider that it is abundantly clear from the report of Dr Rushworth that the lumbar spine system and the nervous system (limited to those body parts referred to by Dr Rushworth) are required to be assessed for permanent impairment, and that will appear in the orders made in the Certificate of Determination.

[2022] NSWPIC 158

12 April 2022