Finding a Finding is not Binding: workers compensation

16 April 2015
Q v Z [2015] NSWWCCPD 25
Acting President O'Grady      

Facts

Q (the worker) was a school teacher who suffered a psychological injury, allegedly caused by bullying and harassment, in the course of her employment with Z.  The worker alleged her psychological injury caused her incapacity.  The worker’s claim for compensation was denied. 

She brought proceedings in the Commission in 2013 seeking weekly benefits and medical expenses.  At that time, the worker’s medical evidence supported an ongoing incapacity resulting from her injury.  The medical evidence of the employer supported the worker continuing to suffer the effects of a mental illness, albeit not work-related.

The 2013 proceedings were resolved for a closed period award for weekly benefits, payment of s60 expenses with a consent finding that worker “had recovered from the effects of any work related psychological injury”.

In February 2014 the worker brought a claim for lump sum compensation pursuant to sections 66 and 67 of the 1987 Workers Compensation Act 1987 (the 1987 Act).  The worker’s claim for lump sum compensation was rejected by the insurer on the basis the worker had recovered from the effects of her psychological injury in accordance with the prior consent award.  The insurer also asserted the worker was estopped from denying she had recovered from the effects of her psychological injury.

The worker commenced proceedings in the Commission pursuing her claim for lump sum compensation.  The Arbitrator who heard the matter at first instance found in favour of the employer on the basis of the prior finding that the worker had recovered from the effects of injury and she was estopped from asserting she continued to suffer the effects of her injury. 

The worker appealed that decision.

Decision

On appeal, Acting President Kevin O’Grady determined:

• An Arbitrator cannot make a finding, which by inference finds the worker has suffered no whole person impairment resulting from injury, even by consent.  The jurisdiction to assess whole person impairment lies with an Approved Medical Specialist (AMS) or a Medical Appeal Panel (MAP).
• The first Arbitrator's consent finding, that the worker had recovered from the effects of injury, had been made in error to the extent that it infringes upon the jurisdiction of an AMS to assess any permanent impairment resulting from the worker’s injury.  Therefore, the consent finding that the worker had recovered from the effects of injury did not create an issue estoppel as the Arbitrator did not have the jurisdiction to make that finding, even by consent.
• In obiter, an attempt to reach an agreement which relinquished a worker’s rights to workers compensation on the basis she had recovered from the effects of injury, in the face of evidence she had not recovered, was defeated by section 234 of the Workplace Injury Management and Workers Compensation Act 1998, as the parties cannot contract out of the Acts. 

Impact

Where proceedings before the Commission have been resolved with a consent finding the worker had recovered from the effects of injury or even an award for the respondent on the worker’s claim for lump sum compensation, a worker is not prevented from making a claim for lump sum compensation in respect of that injury, subject to the 2012 lump sum amendments.

When negotiating a settlement in current or future claims for weekly benefits, bear in mind that a consent finding that a worker has recovered from the effects of an injury, a closed period with an award for the respondent of the worker’s claim for future weekly benefits or which purports to deal with matters within the jurisdiction of an AMS or MAP does not prevent a future claim lump sum claim, subject to the 2012 lump sum amendments.

When resolving claims for weekly benefits and/or medical expenses, ensure any errors in the manner in which the injury is pleaded are corrected.  This will assist in having the injury correctly framed should the worker subsequently make a claim for lump sum compensation.

Author: Stephen Marsh