| 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…
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- Case
- [2013] NSWWCCPD 7
- Decision Date
CaseChat Overview and Summary
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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