Roche v Australian Prestressing Services Pty Ltd - [2013] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Roche v Australian Prestressing Services Pty Ltd [2013] NSWWCCPD 7
APPELLANT:		Stephen Roche
RESPONDENT:		Australian Prestressing Services Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-3873/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		29 October 2012
DATE OF APPEAL DECISION:		18 February 2013
SUBJECT MATTER OF DECISION:		Estoppel; effect of complying agreement made under s 66A of the Workers Compensation Act 1987; effect of later binding Medical Assessment Certificate; whether estoppel arises in a changing situation; ss 322 and 326 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Firths
Respondent:	Mulcahy Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 29 October 2012 is confirmed. 2. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This appeal concerns the effect of a complying agreement made under s 66A of the Workers Compensation Act 1987 (the 1987 Act) in which it was agreed that the worker suffered a six per cent whole person impairment due to multiple injuries (an injury to his left ankle and an injury to his left wrist) in one incident and where, based on a later binding Medical Assessment Certificate (MAC), the impairment due to his wrist injury has decreased from four per cent to nil and the impairment due to his ankle injury has increased from two per cent to nine per cent.
The essential issue is whether the employer is estopped from denying the percentage assessments upon which the complying agreement was based. If it is, the worker contends that the earlier agreed percentage assessment for the wrist injury (four per cent) can be added to the increased impairment due to the deterioration in the ankle injury (seven per cent) to meet the threshold for compensation for pain and suffering.
For the reasons explained below, no estoppel arises because there is no estoppel in a changing situation, such as a person’s physical condition, and impairments that arise from the same incident are assessed together and not separately.

BACKGROUND

On 8 July 2008, the appellant worker, Stephen Roche, injured his left ankle and left wrist when he fell about four metres in the course of his employment for the respondent employer. The injury to his ankle was a comminuted fracture of the os calcis (heel bone) and the injury to his wrist was a fracture of the left distal radius.
On 19 April 2009, Mr Roche entered a “complying agreement” with the respondent under s 66A of the 1987 Act in relation to permanent impairment compensation payable under ss 66 and/or 67 of the 1987 Act (the complying agreement) in respect of his injuries.
The complying agreement provided that the respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), was to pay Mr Roche permanent impairment compensation in the sum of $8,250 in respect of a six…

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.

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Details

Case: [2013] NSWWCCPD 7
Decision Date: 18 February 2013

CaseChat Overview and Summary

Roche brought an appeal against the decision of an Arbitrator who found that he was not entitled to weekly payments after his statutory weekly payments ceased. Roche had previously entered into a complying agreement with his employer, Australian Prestressing Services, under section 66A of the Workers Compensation Act 1987. This agreement stipulated Roche's weekly payments would end once he reached the age of 60. Roche subsequently obtained a Medical Assessment Certificate, which indicated that he was not capable of undertaking his pre-injury employment. Roche argued that this certificate entitled him to continuing weekly payments. The court was required to determine whether Roche was estopped from asserting his right to continued weekly payments by the complying agreement, and whether the subsequent Medical Assessment Certificate could override the terms of that agreement.

The court considered whether the doctrine of estoppel applied in this situation, where Roche had entered into a complying agreement and later obtained a Medical Assessment Certificate indicating he was unable to return to his pre-injury employment. The court noted that estoppel could potentially apply in situations where there is a change in circumstances, but the party seeking to rely on estoppel must establish that it would be inequitable to allow them to resile from a representation. The court held that Roche had not established that it would be inequitable for him to seek continued weekly payments based on the Medical Assessment Certificate, given that the complying agreement had not been varied or brought to an end. The court further found that the subsequent Medical Assessment Certificate did not automatically override the terms of the complying agreement. The Arbitrator's determination was thus confirmed, and Roche was not entitled to the weekly payments he sought.

The final orders of the court were that the Arbitrator's determination of 29 October 2012 was confirmed and that each party was to pay their own costs of the appeal. This outcome emphasised the importance of clear and binding agreements in workers' compensation matters, and the limited circumstances in which estoppel might apply to alter the terms of such agreements.

Orders

Orders of the court

1. The Arbitrator’s determination of 29 October 2012 is confirmed.

2. Each party is to pay his or its own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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