Geary v UPS Pty Ltd - [2021] NSWPIC 111

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Geary v UPS Pty Ltd [2021] NSWPIC 111
APPLICANT:	Peter Geary
RESPONDENT:	UPS Pty Ltd
MEMBER:	Mr Michael Perry
DATE OF DECISION:	10 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sums for injury to both shoulders and cervical spine based on alleged disease injury from nature and conditions of employment; earlier (2019) proceedings involving the same injuries and essentially the same or similar evidence based on personal injury/incident resulting in 2019 consent determination which included award for the respondent with respect to cervical spine injury or consequential cervical spine injury; whether applicant estopped by Anshun estoppel or res judicata from basing claim in 2021 proceedings on disease injury for cervical spine and left shoulder injuries; whether applicant suffered disease injuries from nature and conditions of employment; Held-Anshun estoppel prevents applicant relying on disease injury with respect to the cervical spine injury; no estoppel with respect to left shoulder injury the 1987 Act; distinguished from Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 given the applicant had available to him the same or similar material in the 2019 proceedings as the 2021 proceedings; consideration of public policy relating to the potential for conflicting or contradictory determinations.
DETERMINATIONS MADE:	1. The applicant has leave to rely upon the Amended Application to Resolve a Dispute dated 9 February 2021. 2. The respondent is granted leave to dispute previously unnotified matters pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act1998 – by being able to rely upon the “matters in dispute” raised in the Reply. 3. The applicant is estopped from making a claim in relation to his cervical spine on the basis of a disease injury- including by reference to the nature and conditions of his employment with the respondent. 4. The applicant is not estopped from making a claim in relation to his right and left shoulders on the basis of a disease injury – including by reference to the nature and conditions of his employment. 5. The claim with respect to permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor as follows: a. Assessment of whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 as a result of injury to: i. Right upper extremity (shoulder): Date of injury 1 February 2018 (deemed) - and personal/frank injury); ii. Left upper extremity (shoulder): Date of injury: 1 February 2018, (deemed - disease) and 1 February 2018 (condition as a consequence of on right shoulder injury); iii. Scarring. b. The documents to be reviewed by the Medical Assessor are: (i) Application to Resolve a Dispute including the Amended Application to Resolve a Dispute and attached documents; (ii) Reply including attached documents; (iii) Application to Admit Late Documents by the applicant, and (iv) Application to Admit Late Documents by the respondent.

STATEMENT OF REASONS

BACKGROUND

On 10 September 2019, Peter Geary (the applicant) commenced proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Geary v UPS Pty Ltd

Details

AGLC: Geary v UPS Pty Ltd [2021] NSWPIC 111
Case: [2021] NSWPIC 111
Decision Date: 10 May 2021

CaseChat Overview and Summary

In Geary v UPS Pty Ltd, the applicant sought compensation for injuries sustained to his shoulders and cervical spine, arguing these injuries were the result of a disease arising from his employment conditions. The dispute came before the Court, which was tasked with determining whether the applicant was precluded from asserting these claims due to the doctrine of Anshun estoppel or the principle of res judicata, given that similar claims were settled in 2019. Additionally, the Court needed to ascertain whether the applicant indeed suffered from disease injuries stemming from his employment.

The Court found that Anshun estoppel barred the applicant from claiming that his cervical spine injury resulted from a disease of his employment, as he had the opportunity to present this evidence in the 2019 proceedings but did not. However, the Court ruled that there was no estoppel concerning the left shoulder injury, as the applicant had not had the chance to present this specific claim in the prior proceedings. The Court differentiated this case from Fourmeninapub Pty Ltd v Booth, noting that the applicant had access to the same evidence in both the 2019 and 2021 proceedings. The Court also considered public policy implications, particularly the risk of conflicting or contradictory determinations, which would undermine the integrity of the legal system.

Ultimately, the Court concluded that the applicant could not rely on disease injury for the cervical spine injury due to Anshun estoppel but could pursue the claim for the left shoulder injury. The Court's decision highlights the importance of procedural fairness and the consistency of legal outcomes. The final orders reflected these findings, barring the applicant from claiming disease injury for the cervical spine but allowing the claim for the left shoulder to proceed.

Orders