WDS (Mining) Pty Ltd v Piper

[2013] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		WDS (Mining) Pty Ltd v Piper [2013] NSWWCCPD 19
APPELLANT:		WDS (Mining) Pty Ltd
RESPONDENT:		Mark Anthony Piper
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6344/12
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		22 November 2012
DATE OF APPEAL DECISION:		16 April 2013
SUBJECT MATTER OF DECISION:		Settlement of claim for lump sum compensation; effect of complying agreement made under s 66A of the Workers Compensation Act 1987; interpretation of contract; principles involved; difference between an “injury” and a consequential condition that has resulted from an injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:		1.   Leave to appeal is granted. 2.   The Senior Arbitrator’s determination of 22 November 2012 is confirmed. 3.   The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION  

1. Section 66A of the Workers Compensation Act 1987 (the 1987 Act) provides for a worker who has received an injury, and an employer or insurer, to agree on the degree of permanent impairment that has resulted from the injury. An agreement made under this section is called a “complying agreement”.

2. The issue in the present appeal concerns the interpretation and effect of a complying agreement made between the worker and the insurer, which provided for the payment of lump sum compensation in respect of an eight per cent whole person impairment due to an injury to the worker’s right upper limb (right shoulder), and whether that agreement precludes the worker from claiming lump sum compensation for symptoms in his left shoulder said to have resulted from the accepted injury to the right shoulder.

BACKGROUND

1. The respondent worker, Mark Piper, injured his right shoulder in the course of his employment for the appellant employer, WDS (Mining) Pty Ltd, on or about 21 December 2006. That injury was aggravated in June 2007, but the aggravation is of no consequence to the current appeal. Liability has been accepted for the shoulder injury. As a result of the injury, Mr Piper alleges that he has overused his left shoulder and developed symptoms and restrictions in that shoulder.

2. Mr Piper also injured his back at work for the appellant. Though that injury is not relevant to the present appeal, I mention it because the letter of 26 May 2011 (see [13] below), and the Senior Arbitrator’s decision, refer to a claim for lump sum compensation for a back injury.

3. On 8 August 2010, Dr Alan Searle, orthopaedic surgeon, examined Mr Piper at the request of his solicitors. In his report of 5 September 2010, he took a history of the injury to the right shoulder (which he wrongly recorded as having occurred on 12 October 2010) and recorded that, because of symptoms in the right shoulder (continued aching), Mr Piper tended to suppress use of that shoulder and was…