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 per cent whole person impairment. In reaching this assessment, the parties accepted the opinion of Dr Hopcroft, general surgeon qualified by Mr Roche, dated 3 February 2009, in which he assessed Mr Roche to have a two per cent whole person impairment as a result of the injury to his ankle and a four per cent whole person impairment as a result of the injury to his wrist.
On 10 May 2010, Dr Patrick, surgeon, assessed Mr Roche to have a 16 per cent whole person impairment made up as follows:
(a)     five per cent due to his lumbar spine (alleged to have been due to an altered gait because of the ankle injury);
(b)     one per cent due to his left upper extremity (wrist), and
(c)     11 per cent due to his left lower extremity (ankle/hind foot).
On 7 March 2011, Mr Roche claimed $25,093.75 (incorrectly calculated) in respect of an additional 10 per cent whole person impairment under s 66, and $25,000 for pain and suffering under s 67. QBE disputed the claim and Mr Roche filed an Application to Resolve a Dispute (the Application) in the Commission claiming $15,743.75 (the correct amount) for an additional 10 per cent lump sum compensation in respect of his lumbar spine, left upper extremity and left lower extremity.
At a teleconference on 27 June 2011, the Arbitrator, by consent, discontinued the claim for the lumbar spine and referred the remaining claims to the Registrar for referral to an Approved Medical Specialist (AMS).
The Registrar referred the assessment of Mr Roche’s whole person impairment as a result of the condition of his left upper extremity (wrist) and his left lower extremity (ankle) to Dr Hyde Page, AMS.
Dr Hyde Page issued a MAC on 24 August 2011 in which he assessed Mr Roche to have a nine per cent whole person impairment as a result of the condition of his left ankle and hind foot, but a nil impairment as a result of the condition of his left wrist.
Based on Dr Hyde Page’s assessment, the Registrar issued a Certificate of Determination on 29 September 2011 in the following terms:
“1. That the Applicant suffers 9% permanent impairment resulting from injury on 8 July 2008.
2. That the Applicant was paid $8,250.00 in respect of 6% permanent impairment as lump sum compensation under section 66 in accordance with Complying Agreement under section 66A dated 23 April 2009.
The Commission orders:
3. That the Respondent pay the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act), $4,125.00 in respect of 3% further permanent impairment resulting from injury on 8 July 2008.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
Brief statement of reasons
5. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the 1998 Act.”
On 30 September 2011, Mr Roche’s solicitor wrote to the Registrar requesting that she list the matter for a teleconference to argue Mr Roche’s entitlement to compensation under s 67. The basis for that argument was that Mr Roche previously had a “finding of 4% whole person impairment referable to the left wrist” and, when that was combined with an additional seven per cent whole person impairment for his left ankle, he met the (then applicable) 10 per cent threshold to entitle him to compensation under s 67.
At a teleconference on 15 November 2011, Mr Roche sought a reconsideration of the Certificate of Determination issued on 29 September 2011 and claimed compensation for an additional seven per cent whole person impairment as a result of the condition of his left ankle, and compensation for pain and suffering. The Arbitrator directed the parties to file written submissions and listed the matter for conciliation and arbitration on 18 January 2012. The parties subsequently consented to the conciliation and arbitration being vacated and to the Arbitrator determining the matter on the written submissions.
In a decision delivered on 29 October 2012, the Arbitrator held that the complying agreement was not an order of the Commission and could not give rise to an estoppel. She said that the legislation was clear and that impairments resulting from more than one injury, arising out of the same incident, were to be assessed together to assess the degree of permanent impairment. As Mr Roche had been compensated in respect of six per cent whole person impairment and Dr Hyde Page determined a whole person impairment of nine per cent, Mr Roche was only entitled to a further payment of three per cent. As that was the amount ordered in the Certificate of Determination of 29 September 2011, the Arbitrator confirmed that certificate and that Mr Roche had no entitlement to compensation for pain and suffering.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 29 October 2012 in the following terms:
“1. The Certificate of Determination of 29 September 2011 is confirmed.

2.An award for the respondent in respect of the claim for payment of a lump sum pursuant to section 67 of the Workers Compensation Act 1987.

3. The respondent to pay the costs of the applicant as agreed or assessed limited to costs of an application where the extent of impairment is the only issue.”
Mr Roche has appealed the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     denying Mr Roche natural justice;
(b)     failing to consider the whole of Mr Roche’s submissions;
(c)     mischaracterising Mr Roche’s case;
(d)     failing to consider the whole of the evidence;
(e)     failing to consider whether the prior acts of the respondent constituted an admission;
(f)      failing to consider the value or weight of all the evidence including admissions;
(g)     failing to consider the whole of the circumstances;
(h)     failing to consider that the legislation was to be construed beneficially, and
(i) failing to apply s 66A in accordance with law.

LEGISLATION

Section 66A provides:

“66A Agreements for compensation

(1)   In this section, "complying agreement" means a written agreement:
(a) under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.
(2)   If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed.
(3)   The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:

(a) the agreed degree of permanent impairment is manifestly too low, or
(b) the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
(4) Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.
(5) Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.

(6) Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.”

SUBMISSIONS

Appellant’s submissions

Mr Roche’s counsel, Mr Goodridge, prepared the submissions filed on appeal and before the Arbitrator. Before the Arbitrator, he submitted that s 66A envisages:
(a) an agreement;
(b) payment in accordance with that agreement, and
(c) a further payment if, inter alia, “there has been an increase in the degree of permanent impairment beyond that so agreed” (sub-s (3) of s 66A).
Parliament provided for a statutory gloss on the common law of contract arising out of the complying agreement. That is where there has been “an increase”. There is no warrant to “read up the natural meaning of the word ‘increase’ to include its antonym ie ‘decrease’”.
Mr Goodridge quoted passages from Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 referring to estoppel in general and to res judicata estoppel in particular. He also referred to authorities dealing with the effect of consent orders, but did not identify the specific principle upon which he relied.
He drew attention to the complying agreement, which said that the respondent and Mr Roche “have reached agreement in relation to compensation payable” and that “[t]he agreement as to the amount of compensation and as to the percentage loss are set out hereunder” (emphasis included in the submission). The six per cent whole person impairment referred to in the complying agreement was a direct reference to Dr Hopcroft’s findings.
On appeal, Mr Goodridge submitted that “the complying agreement contained evidence of specific agreements and admissions beyond those which were required under Section 66A” and that it gave rise to:
(a)     an inter-parte agreement (subject to a limited statutory right to vary);
(b)     an admission, and
(c)     an estoppel.
He said that the Arbitrator appeared to confuse the submissions in respect of contract law and appeared to believe that estoppels may only arise by reason of an order of a court or the Commission. He said that estoppel may take many forms and cited various passages from Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 (Verwayen), adding, “[r]es judicata issue estoppel is but one form of estoppel”.
Mr Goodridge said that the Arbitrator erred in quoting selectively from [74] of Zeaiter v NSW Department of Education and Training [2009] NSWWCCPD 103 (Zeaiter) and failed to consider other passages (at [46] and [47]) in that decision. The passage (at [74]) relevantly provided that there could be no issue estoppel since there had “only been” (emphasis included in the submission) an agreement under s 66A. The s 66A agreement (in the present case) recorded agreements “beyond what was ‘only required for Section 66A’”.
The Arbitrator failed to give the legislation its beneficial construction (Walker v Wilson [1991] HCA 8). Where a deterioration occurs, a worker may claim additional lump sum compensation. Should an improvement occur, however, the case law and the practice of the Commission has never required a worker to repay lump sum compensation previously paid.
The effect of the respondent’s submission is to agree that Mr Roche has suffered a further seven per cent whole person impairment referrable to the left ankle, but he should give credit for (in effect, repay) the lump sum benefits previously agreed in respect of the left wrist.
It was not a term of the complying agreement, nor is it consistent with the admission or the doctrine of estoppel, that a worker repay or give credit for the four per cent assessed for the left wrist in the complying agreement. The respondent cannot unilaterally amend the terms of an agreement to imply a term of that kind.

DISCUSSION AND FINDINGS

Mr Goodridge’s submissions cannot be accepted. Leaving aside the fact that he has not identified the nature of the estoppel upon which he relies, he has failed to grapple with the fundamental flaw in his client’s case. That is that the doctrine of estoppel does not apply to a changing situation (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3^rd ed, 1996 (Spencer Bower), at [199]; Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114]–[116]; O’Donel v Commissioner for Road Transport& Tramways [1938] HCA 15; 59 CLR 744 (O’Donel)), and an assessment of whole person impairment is such a situation.
In O’Donel, Evatt J observed at 763:
“The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.”
The Court of Appeal applied and followed this statement in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski) and the Commission has consistently followed this principle (Rinker Group Ltd v Mackell [2008] NSWWCCPD 100 (Mackell) at [122]; Prisk v Department of Ageing, Disability and Home Care(No 2) [2009] NSWWCCPD 13 at [55]; and Manpower Pty Ltd v Harris [2011] NSWWCCPD 10 at [157]).
As Handley JA observed (at [15]) in Dimovski, the task for the judge in that case, which involved a second claim for lump sum compensation after subsequent injuries, was to assess the worker’s “current impairment following the later injuries, without legal constraints flowing from the earlier award”.
Hodgson JA’s decision in Dimovski is also relevant. Referring to O’Donel, Hodgson JA observed, at [58]:
“This principle applies clearly in cases where an issue estoppel concerns a matter involving an element of prediction for the future. An award for permanent impairment of an arm (say) involves a conclusion not merely to the present state of the arm but also as to whether and to what extent that state will change in the future. Suppose a worker is given a lump sum award on the basis of 100% permanent impairment of both arms. An unexpected development in medical science restores the use of the arms. The worker returns to work with the original employer and is injured in the course of lifting a heavy object. The employer could not rely on an estoppel preventing the worker from proving the accident, on the basis that he was estopped from alleging that he used his arms.”
It follows that, as Mr Harlen, solicitor for the respondent, submitted to the Arbitrator, as the assessment of permanent impairment involves a prediction for the future, and as a physical condition or impairment is a “state of things which is capable of subsequent alteration”, there can be no estoppel from the complying agreement. This is consistent with the fact that “permanent” does not mean “everlasting” (Henrikson v Grafton Hotel [1942] 2 KB 184 at 196) or “perpetual” (Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR 135 at 138).
The respondent’s position in the present case is much stronger than the hypothetical situations postulated by Evatt J in O’Donel and Hodgson JA in Dimovski. In the present case, the evidence is not that there has been no change since the complying agreement, but that there is now a nil impairment from the wrist injury. Moreover, the unambiguous terms of the applicable legislation, which has been substantially amended since Dimovski, also supports the Arbitrator’s conclusion.
Mr Goodridge’s reliance on Verwayen is misplaced.
In Verwayen, the plaintiff was injured when HMAS Voyager and HMAS Melbourne collided in February 1964. He sued the Commonwealth for damages in 1984. In its defence, the Commonwealth admitted liability and did not plead that the claim was statute barred under the Limitation of Actions Act 1958 (Vic) or that it owed no duty of care to the plaintiff because he was injured as a serviceman in the course of combat exercises.
Both before and after the delivery of its defence, the Commonwealth stated that its policy in respect of claims arising from the collision was not to contest liability and not to plead a limitations defence. Following a change of policy, in 1986 the Commonwealth obtained leave to amend its defence to rely on the Limitation of Actions Act and to argue that it owed no duty of care to the plaintiff.

The High Court held, by majority, the Commonwealth was not free to dispute its liability to the plaintiff. Deane and Dawson JJ did so on the ground that the equity raised by the Commonwealth’s conduct was such that it could only be accounted for by holding it to the assumed state of affairs (namely, that the particular defences would not be raised). Toohey and Gaudron JJ did so because the Commonwealth had waived its right to rely on either defence.
Mr Goodridge referred to the following statement by Mason CJ at 409 in Verwayen:
“That brings me to estoppel, a label which covers a complex array of rules spanning various categories. There are the divisions between common law and equitable estoppel, between estoppel by conduct and estoppel by representation, and the distinction between present and future fact. There are titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence. Yet all of these categories and distinctions are intended to serve the same fundamental purpose, namely ‘protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted’: Waltons Stores, per Brennan J at p 419. See also per Mason CJ and Wilson J at p 404; Grundt, at pp 674–675.”
Apart from quoting this passage, and noting that no single “plural judgment” emerged from the decision, Mr Goodridge merely added that the principles cited by Mason CJ were, in general terms, not in dispute. He made no submission as to how those principles advanced Mr Roche’s case. If Mr Goodridge is relying on a promissory estoppel or estoppel by representation, and asserting that Mr Roche should be protected from the detriment he would suffer if the respondent were allowed to adopt a position different to that set out in the complying agreement, I do not accept that argument.
The respondent made no representation as to Mr Roche’s impairment in April 2009. It merely accepted the assessment in Dr Hopcroft’s report. Moreover, Mr Roche has not suffered a detriment from a “change of position” by the respondent. In respect of Mr Roche’s claim for additional lump sum compensation, the respondent merely, with the worker’s consent, allowed the matter to be referred to an AMS for assessment under the legislation. Once that happened, and a valid MAC issued, the MAC is conclusively presumed to be correct as to the degree of impairment of the worker as a result of an injury (s 326(1)(a)) of the 1998 Act).
It is not a matter of the respondent changing its position to Mr Roche’s detriment, but a matter of the MAC taking effect according to the terms of the legislation. And, as the Arbitrator said (at [21]), impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(3) of the 1998 Act). This is consistent with s 65(2) of the 1987 Act, which provides that if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury for the purposes of Div 4 of the 1987 Act,
As Mr Roche suffered two injuries (an injury to his ankle and an injury to his wrist) in the one incident (the fall on 8 July 2008), his impairments (and his entitlement to lump sum compensation) had to be assessed together, not as separate injuries. That is what happened in the complying agreement. He was compensated for his impairment of six per cent, not for the separate impairments of two per cent and four per cent.
Having previously been assessed to have a six per cent whole person impairment as a result of the incident on 8 July 2008 (which both parties accepted and formalised in the complying agreement) and having now been assessed by an AMS (who has issued a MAC that is conclusively presumed to be correct) to have a nine per cent whole person impairment as a result of that incident, he is only entitled to receive compensation for the difference between the two figures.
Mr Goodridge’s submission that the Arbitrator “quoted selectively from” [74] of Zeaiter was incorrect. The Arbitrator correctly quoted the whole of that paragraph, which reads as follows:
“There is an additional aspect of the decision in JC Equipment which is relevant. There could be no issue estoppel since there had only been an agreement pursuant to section 66A of the 1987 Act as to the degree of permanent impairment and no consent award in respect thereof. Indeed, section 66B of the 1987 Act restricts the circumstances in which the Commission ‘may entertain proceedings for entry of an award to give effect to the agreement’. However, the respondent in that case sought also to rely on the doctrine of conventional estoppel. It was successfully submitted by the appellant that the mutual assumption of fact which was urged by the respondent (that there was a 16% permanent impairment) was adopted only as a conventional basis of the relationship of the parties for the purpose of calculating the section 66 entitlement and for no other purpose. The argument based on estoppel thus failed.”
Mr Goodridge submitted that Zeaiter “relevantly provided that their [sic] could be no issue estoppel since there had only been an agreement pursuant to Section 66A” (emphasis included in the submission). He added that the complying agreement in the present case “recorded agreements beyond what was only required for Section 66A”. I do not accept these submissions.
The reference in Zeaiter to JC Equipment was a reference to JC Equipment Hire Pty Ltd v Registrar, Workers Compensation Commission (NSW) [2008] NSWCA 43. In that case, the employer accepted the whole person impairment assessment of 16 per cent by the worker’s qualified specialist, Dr Searle. (In that respect, the case is identical to the present matter in that the employer accepted the whole person impairment assessment by Dr Hopcroft.)
The worker in JC Equipment argued that the complying agreement created a “conventional estoppel” (at [73]) that prevented the employer from disputing that the worker had met the 15 per cent threshold to recover damages at common law. In rejecting that argument, Tobias JA (Campbell and Bell JJA agreeing) said, at [78]:
“The evidence does not establish, nor could it in the circumstances, that the mutual adoption by the parties of a degree of permanent impairment of 16% for the purpose of the s 66 calculation was so adopted by them for all purposes relating to any claims which might be made under the Acts, including a claim for work injury damages.”
It follows that there is no “conventional estoppel” in the present case.
There may well be circumstances where a complying agreement creates an estoppel (CSR Ltd v Gonzales [2010] NSWWCCPD 118 (Gonzales) at [81]). However, neither the facts nor the result in that case assists Mr Roche. Mr Gonzales was estopped from claiming additional lump sum compensation because of the effect of a complying agreement and admissions and agreed facts. Nothing in the reasons in that decision supports Mr Goodridge’s submissions.
Mr Goodridge said that the Arbitrator failed to consider the passages in Zeaiter at [46] and [47], which referred to statements in Seaib v Hays Personnel Services (Aust) Pty Ltd (2008) 6 DDCR 526) (Seaib)) and Mackell to the effect that consent awards can create res judicata estoppels, but he made no submission about the relevance of that failure. The Arbitrator’s failure to refer to those passages makes no difference to the outcome and is of no consequence. Those passages merely quoted statements from Seaib and Mackell where the potential effect of consent orders was discussed. Neither case concerned the issue in the present matter.
The submission that the Arbitrator erred by failing to give the legislation “its beneficial construction” is unpersuasive and unhelpful. While the authorities are clear that beneficial legislation should be given a beneficial construction (AB v Western Australia [2011] HCA 42 at [24] – (citing IW v City of Perth [1997] HCA 30; 191 CLR 1)), it is difficult to see how that advances Mr Roche’s case. Mr Goodridge made no submission as to how a beneficial interpretation of the legislation leads to a different result to that reached by the Arbitrator. The issue is not one of statutory construction, but of whether the complying agreement created an estoppel.
The submission that the case law has never required a worker to repay lump sum compensation should an improvement occur in his or her condition is irrelevant. The respondent does not seek a refund of the payment it made under the complying agreement and, absent fraud, it would have no prospect of obtaining one. Had it sought a refund, Mr Roche would be protected against the detriment that would flow from a change in the respondent’s position. The respondent has not changed its position and does not seek a refund.
For the reasons already explained, the submission that the “effect” of the respondent’s position is to agree that Mr Roche has suffered a further seven per cent whole person impairment referrable to his left ankle but he should give credit (“in effect repay”) the lump sum benefits previously agreed in respect of the left wrist is unsustainable. No question of a refund arises. The result follows from the legislation and the fact that there is no estoppel in a changing situation. A worker’s whole person impairment as a result of an injury is a quintessential example of such a situation.
The above reasons dispose of the issues relevant to the determination of the appeal. Because of the broad-ranging nature of the “grounds” of appeal, I make the following additional observations.
Though Mr Goodridge also alleged that the Arbitrator denied Mr Roche natural justice, he made no submissions on that ground. The Arbitrator determined the matter “on the papers” after both sides consented to that course. Each side had every opportunity to make written submissions and did so. I reject this ground of appeal.
As to the allegation that the Arbitrator failed to consider the whole of Mr Roche’s submissions, Mr Goodridge has not identified which of his submissions the Arbitrator failed to consider. On appeal, I have considered all of Mr Goodridge’s submissions and, for the reasons explained, I reject them. Therefore, if the Arbitrator failed to consider all of Mr Goodridge’s arguments, that omission makes no difference to the outcome.
Mr Goodridge has not identified how the Arbitrator has mischaracterised Mr Roche’s case. She identified (at [16]) Mr Roche’s claim for lump sum compensation in respect of an additional seven per cent permanent impairment on the basis of a contract, admissions and the law of estoppel. She said that a complying agreement “cannot give rise to an estoppel” because it is not an order of a court. While this statement was inaccurate, because complying agreements can give rise to estoppels by agreement (Gonzales), the Arbitrator’s conclusion that no estoppel arose in the circumstances of this case is correct.
With respect to the allegation that the Arbitrator failed to consider all of the evidence, Mr Goodridge has not identified the evidence the Arbitrator failed to consider or how that failure has affected the outcome. Mr Goodridge’s reference on appeal to the terms of the complying agreement does not advance his position. Consistent with s 322(3), the complying agreement provided for the payment of $8,250 in respect of a six per cent whole person impairment. It did not provide for the payment of an amount for the impairment that resulted from ankle injury and a separate amount for the impairment that resulted from the wrist injury.
While it is correct that the Arbitrator did not refer to whether the prior acts of the respondent constituted an admission, that omission makes no difference to the outcome. It is clear that the complying agreement involved an admission by the respondent that, as at the date the agreement was entered, Mr Roche had a whole person impairment of six per cent. That admission would (unless it was induced by fraud) prevent the respondent seeking a refund of the payment made under the complying agreement, but is not relevant to the determination of Mr Roche’s impairment at a later date. As explained in Dimovski (see [35] above), the current impairment is assessed without legal constraints flowing from the earlier complying agreement. The admissions carry no weight in the determination of the present claim.

CONCLUSION

As there is no estoppel in a changing situation, and as the current impairment as a result of his wrist injury is nil, it is not possible to add the previous four per cent impairment from that injury to the current impairment for the ankle injury. Moreover, as Mr Roche’s impairments must be assessed together (because they arose out of the same incident), he is only entitled to compensation for the difference between the six per cent the insurer has paid under the complying agreement and the nine per cent assessed in the current MAC.

DECISION

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

COSTS

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

Bill Roche

Deputy President
18 February 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE