2. The Certificate of Determination dated 2 December 2021 is revoked.
3. The matter is to be remitted to a different member for re-determination.
CATCHWORDS:
WORKERS COMPENSATION – issue estoppel – whether employer estopped from denying injury as a result of previous Certificate of Determination which entered consent orders – whether Member erred in finding the injury the subject of the present proceedings was the same injury the subject of the prior consent orders
HEARING:
On the papers
REPRESENTATION:
Appellant:
Mr J Catsanos SC, counsel
Bartier Perry Lawyers
Respondent:
Mr E G Romaniuk SC and Mr G Horan, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
PRINCIPAL MEMBER:
Ms J Bamber
DATE OF MEMBER’S DECISION:
27 July 2022
INTRODUCTION
The respondent (BFZ) was employed by the appellant (Inner West Council) as a parking officer between 3 April 2018[1] and 26 May 2020.
[1] Respondent’s statement dated 27 April 2020, Application to Resolve a Dispute (ARD), p 1, [2].
On 5 January 2020, the respondent lodged a claim for workers compensation[2] alleging that she had suffered a psychological injury during the course of her employment. The respondent provided medical reports and certificates in support of her claim.
[2] ARD, pp 34–37.
The appellant’s insurer issued dispute and review notices in relation to that claim on 3 March 2020,[3] 30 March 2020[4] and 15 April 2020.[5] In the first of those notices, the appellant disputed that the respondent had a psychological injury (s 11A(3) of theWorkers Compensation Act 1987 (the 1987 Act)); disputed that, if there was an injury, the respondent’s employment was the main contributing factor to it (s 4(b) of the 1987 Act); relied on s 11A of the 1987 Act by alleging that if there was an injury, it was caused by reasonable actions taken or proposed to be taken by the employer with respect to discipline; denied that the respondent was incapacitated for work by reason of the alleged injury (if there was an injury) (s 33 of the 1987 Act); and stated that if there was any compensable psychological injury that the claimed medical related treatment was not reasonably necessary (s 60 of the 1987 Act).
[3] Reply to Application to Resolve a Dispute (reply), p 1.
[4] Reply, p 16.
[5] Reply, p 25.
These matters were repeated and elaborated upon in the latter two notices. The appellant relied on the expert medical opinion of Dr Lee.
The respondent filed an Application to Resolve a Dispute (ARD) which became proceedings number 2314/20 (2020 Proceedings).
On 27 May…
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 Inner West Council v BFZ
Sign in free to access the full text
Details
AGLC
Inner West Council v BFZ [2023] NSWPICPD 62
Case
[2023] NSWPICPD 62
Decision Date
CaseChat Overview and Summary
Inner West Council brought this appeal against the decision of a delegate of the Workers Compensation Regulator to award the worker, Mr BFZ, compensation for an injury arising out of and in the course of his employment. The Council argued that the delegate was wrong to determine that Mr BFZ was entitled to compensation. The Council contended that Mr BFZ was estopped from claiming that his current injury arose out of and in the course of his employment because of a prior Certificate of Determination which entered consent orders that the worker’s injury did not arise out of and in the course of his employment. The Commission was asked to determine whether the delegate was correct to determine that Mr BFZ was entitled to compensation. The Commission found that the Council’s appeal should be dismissed with costs. The Commission held that there was no error in the delegate’s determination that Mr BFZ was entitled to compensation. The Commission found that the worker’s current injury was not the same as the injury the subject of the prior consent orders. The Commission held that there was no estoppel preventing Mr BFZ from claiming compensation for his current injury. The Commission found that the delegate’s decision was not unreasonable and therefore the appeal should be dismissed. The Commission dismissed the appeal with costs.
Orders
Orders of the court
except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”