Katsolos v Macquarie Bank Limited
[2023] NSWPIC 196
•1 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Katsolos v Macquarie Bank Limited [2023] NSWPIC 196 |
| Claimant: | Anastasia Katsolas |
| insurer: | Macquarie Bank Limited |
| Member: | Paul Sweeney |
| DATE OF DECISION: | 1 May 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; interlocutory decision relating to terms of referral of accepted or proven injuries for medical assessment; employer alleges that worker estopped from repudiating agreement to amend referral; the terms of referral precluded the worker from subsequently arguing aggregation pursuant to section 322; Held – it was not open to a Medical Assessor to conclusively determine aggregation; that was a matter for the Personal Injury Commission (Commission); as the respondent was unable to prove detriment there was no estoppel; matter referred for assessment of medical dispute with liberty to apply to the Commission in respect of aggregation if necessary. |
| determinations made: | |
That the medical dispute in this matter be referred for assessment in the same terms as the amended Referral of 22 February 2023:
Date of Injury 1: 4 February 2013 Body part/s referred: Left upper extremity (left shoulder).
Method of assessment: Whole person impairment.
Date of Injury 2: 12 October 2016 - deemed Body part/s referred: Left upper extremity (shoulder), Right upper extremity (shoulder).
Method of assessment: Whole person impairment.
Liberty to a parties to apply to the Commission on receipt of the Medical Assessment Certificate in respect of the issue of aggregation pursuant to s 322 of the Workplace Injury Management and Workers Compensation Act 1998.
STATEMENT OF REASONS
By these proceedings, Anastasia Katsolos (the applicant) claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) from Macquarie Bank Limited (the respondent). As the respondent disputed that the applicant suffered the injuries alleged in her Application to Resolve a Dispute, a conciliation conference and arbitration hearing took place on 16 January 2023. On 20 January 2023, I delivered an oral decision on the issues in dispute and made orders remitting the matter to the President for referral of a medical dispute in respect of the proven or accepted body parts/systems to a Medical Assessor (MA). Unfortunately, a further dispute has arisen in respect of the terms of the referral of the proven injuries to an MA.
By an Amended Certificate of Determination dated 20 February 2023, I found that the applicant had suffered the following injuries in the course of her employment with the respondent:
(a) injury to the right wrist, left knee and left shoulder when she fell in the course of her employment on 4 February 2013;
(b) an injury to her left shoulder as a result of the nature of her employment with the respondent, and
(c) an injury to the right shoulder being an aggravation of a pre-existing condition as a result of the nature of her work from the beginning of 2016 until the cessation of her employment.
As a consequence of those orders, I remitted the medical dispute concerning the degree of permanent to the President for referral to an MA to assess the degree of whole person impairment (WPI), if any, as a result of injury to:
(a) the applicant’s left shoulder on 4 February 2013 and by reason of the nature of her employment prior to 12 October 2016 deemed to have occurred on 12 October 2016, and
(b) the applicant’s right shoulder by reason of the nature of her employment during and after 2016 deemed to have occurred on 12 October 2016.
It is appropriate to make three comments in respect of these orders. First, as I was unable to ascertain from the evidence the date on which the applicant ceased employment the finding of injury to the right shoulder and the referral of that body part to an MA is regrettably vague.
Secondly, I did not canvass the issue of aggregation in my reasons on 20 January 2023. The terms of the remittal of the matter to the President were intended to facilitate a determination of the WPI of the applicant’s left shoulder as a result of both the injury on 4 February 2013 and the nature of her employment and an injury to her right shoulder by reason of the nature of her employment.
Thirdly, as I am of the opinion that aggregation is a matter for the Personal Injury Commission (Commission) rather than an MA, I anticipated that it could be dealt with, if necessary, on the conclusion of the medical assessment.
On 17 February 2023, the delegate referred the assessment of the medical dispute to an orthopaedic surgeon, Dr Kuru. On that day, the respondent sought an amendment of the referral to read as follows:
“Date of injury 1: 4 February 2013 – left upper extremity (shoulder)
Date of injury 2: 12 October 2016 (deemed) – left upper extremity (shoulder) and right upper extremity (shoulder).”
On the same date, the applicant’s solicitor’s office informed the Commission of the applicant’s consent to the amended referral. An amended referral was issued on 22 February 2023 which is in the following terms:
“Date of injury 1: 4 February 2013
Body part/s referred: left upper extremity (left shoulder)
Method of assessment: whole person impairment
Date of injury 2: 12 October 2016 – deemed
Body part/s referred: left upper extremity (shoulder), right upper extremity (shoulder)
Method of assessment: whole person impairment”
On 1 March 2023, the respondent lodged an Application to Admit Late Documents containing a supplementary report of its qualified orthopaedic surgeon, Dr Doig. At a subsequent telephone conference conducted by Member Capel, the respondent withdrew its application to lodge the supplementary report of Dr Doig. A dispute, however, arose in respect of aggregation. The applicant contended that it was entitled to aggregate the frank injury to the left shoulder on 4 February 2013 with the deemed injuries to the left shoulder and the right shoulder. The respondent denied that this was legally or factually possible. The respondent also asserted that the applicant was estopped from deviating from her agreement as it would suffer detriment by her change of position.
As there was no agreement between the parties on the issue of aggregation or estoppel at a further telephone conference on 20 March 2023, I directed the parties to lodge written submissions on the issues arising from the terms of the referral including submissions as to whether the applicant is estopped from withdrawing her consent to the amended referral by the principles of estoppel.
Respondent’s position
By its submissions, the respondent stated that the proposed amendment:
“would have changed the direction to be provided to the MA in that instead of the two left shoulder injuries being assessed together, the applicant’s frank left shoulder injury on 4 February 2013 was to be assessed separately from the left and right shoulder injuries on 12 October 2016.”
In short, the amended referral effectively meant that the two left shoulder injuries could not be aggregated. The amended referral by consent confined the medical dispute:
“to exclude any issues pertaining to ss 322(2) and 322(3) of the WIM Act. That is that aspect of the ‘medical dispute’ was no longer in dispute, meaning that there was no further need to determine any question of aggregation”
On the estoppel point, the respondent submitted that the applicant’s consent to the amended referral:
“amounted to an agreement that the two left shoulder injuries could not be aggregated and that the terms of the ‘medical dispute’ in respect of that issue had been narrowed to the point that it now no longer needed to be determined”
The respondent then refers to the recent case law concerning the doctrine of estoppel including Sidhu v Van Dyke,[1] Protheroe v Protheroe[2] and Paul Rawson Investments Pty Ltd & Anor v James Boon Corporation Pty Ltd & Ors.[3] The latter case extended the the undoubted authority of a solicitor to bind his client in the conduct of litigation to the conduct of an arbitration.
[1] (2014) 251 CLR 505
[2] [2023] NSWSC 188
[3] [2022] NSWSC 613..
Applicant’s position
As I understand the position of the applicant, it is that both the referrals and the amended Certificate of Determination should be set aside. The applicant also submits that the assertion that her legal advisers abandoned “any available and appropriate aggregation” was inconsistent with the course of the matter and the manner in which it had been argued at the arbitration. It continues:
“No estoppel point is available in these circumstances and the respondent’s outline of legal principles dealing with estoppel are of no assistance in the present case.”
The applicant relies on a statement from her solicitor, Mr McDonnell, to assert that the applicant’s response to the proposed amended referral came from a legal secretary who:
“was entitled to assume that the respondent was seeking the correction of an administered-tight matter, (as referred to in Mr McDonnell’s statement), not a matter going to an issue of a legal benefit of “aggregation” which may be available to the applicant in the appropriate circumstances.”
Finally, with reference to Commonwealth v Verwayen,[4] the applicant argues the decision that case related to a matter of pleading whereas the present case involves the settlement of a referral by the administrative staff of the Commission after the conclusion of a contested hearing and the delivery of judgment.
[4] (1990) 170 CLR 394 (Verwayen).
Disposition
There is an obvious flaw in the respondent’s argument. Aggregation of injuries pursuant to s 322(2) and (3) is not one of the matters enumerated in s 326 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on which the MA’s certification is conclusively presumed to be correct. I appreciate that the terms of a referral may be relevant to the issue of aggregation and to the issue of whether a later injury is causally related to an earlier injury in accordance with common law principles. The MAC, however, cannot be determinative of the first of these matters. Irrespective of the outcome, it is open to the applicant to have aggregation determined by a Member following receipt of the MAC. The jurisdiction to determine aggregation pursuant to s 322 is conferred upon the Commission and not the MA.
As the form of the referral cannot deprive the applicant of its right to have the issue of aggregation determined subsequent to a medical assessment certificate, there is no basis for the respondent’s assertion that it would be prejudiced by the applicant withdrawing her consent to the amended referral. In my opinion, this conclusion is sufficient to defeat the respondent’s argument in respect of estoppel. As the issue of aggregation remains to be litigated should it be necessary, the respondent cannot establish that it relied to its detriment on the email consenting to the amended referral. It did not suffer a substantial material disadvantage as a consequence of the withdrawal of consent to the amended referral. There is one additional relevant matter.
While a solicitor undoubtedly has ostensible authority to conduct and compromise litigation on behalf of his client, it has never (as far as I am aware) previously been suggested that a client can be bound by the acts of a secretary in the solicitor’s office. In the circumstances of this case, her agreement could not create an estoppel. If it were necessary to do so, I would set the amended referral aside. It would not be unconscionable, unconscientious, or inconsistent with the powers of the Commission under the Workers Compensation Act to determine again the wording of the referral. However, in my opinion, the language of the amended referral appropriately describes the medical dispute that is to be referred for assessment. Accordingly, I propose to make orders that the matter be referred in that form. I also propose to grant liberty to the parties to list the matter before the Commission on receipt of a MAC to permit determination of the issue of aggregation if that is necessary.
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