Geary v UPS Pty Ltd [2021] NSWPIC 111 (10 May 2021) and Geary v UPS Pty Ltd [2021] NSWPICPD 47 (17 December 2021)


On 10 September 2019, Peter Geary commenced proceedings against UPS Pty Ltd in the (then) Workers Compensation Commission of NSW (the 2019 proceedings) claiming lump sum compensation reflecting a 37% whole person impairment (WPI), on the basis of injuries to his right and left shoulders and his neck, as well as medical expenses, under the Workers Compensation Act 1987 (the 1987 Act). The injury allegations in the 2019 proceedings read:

“… Type of Injury: Personal… Date of injury: 1/02/2018 … Injury description… physical injuries to … right shoulder …. As a result of overcompensation… consequential injuries to…left shoulder and neck…”.

On 29 November 2019, a Certificate of Determination was issued with the consent of the parties, with respect to the 2019 proceedings (the 2019 COD), determining the following:

“(1) The Applicant discontinues the claim pursuant to s66 …

  1. Amend ‘Injury Details – 1/2/2018 by adding after the words ‘right shoulder’ the words ‘cervical spine’…

(3) Award in favour of the Respondent in respect of the allegation of injury and/or consequential injury to the cervical spine…

(4) The Respondent …pay … medical and related expenses … incidental to the surgery to the left shoulder …”

On 28 September 2020, Mr Geary’s solicitors wrote to UPS Pty Ltd attaching a report from Dr Peter Endrey-Walder dated 17 September 2020 and making a claim under s 66 of the 1987 Act for 46% WPI based on injuries to both of Mr Geary’s shoulders and his cervical spine (the 2020 claim). This letter also requested the respondent to “revoke your denial in relation to our client’s cervical spine injury”.

On 5 January 2021, the representatives of UPS Pty Ltd wrote to the representatives of Mr Geary making an offer of 13% WPI with respect to right shoulder only noting a date of injury of 1 February 2018 (“the incident” or “the incident date”). This was on the basis of a forensic report from Dr Bosanquet, orthopaedic surgeon, dated 12 November 2020.

On 14 January 2021, an Application to Resolve a Dispute (the ARD) was registered by his solicitors in the (now) Personal Injury Commission on behalf of Mr Geary seeking to agitate the 2020 claim. The ARD claimed lump sum compensation s 66 of the 1987 act in respect of 46% WPI. The ARD alleged:

“… Type of Injury: Disease… deemed date… 1/02/2018… Injury description… as a result of the nature and conditions of his employment combined with an incident at work on 1 February 2018, the applicant sustained physical injuries to his right shoulder. As a result of overuse and over-compensation… sustained consequential injuries to his left shoulder and neck… also…scarring as a result of the surgery…”.

The critical question for consideration was whether Mr Geary was subject to an Anshun estoppel from now seeking to agitate a claim with respect to a disease injury to his cervical spine by operation of the award with respect to the cervical spine given in the 2019 proceedings in relation to the frank injury.

The Decision

It was held by Member Perry at first instance that a very important factor in analysing then question of whether an Anshun estoppel arises relates to the aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. Further, it was held that when evaluating whether it was unreasonable for Mr Geary not to rely upon a disease injury in the 2019 proceedings discretion needs to be applied. In this regard, given that the evidence available in the 2019 proceedings and the 2020 claim were effectively the same, it was open to Mr Geary to have pleaded a disease injury in the 2019 proceedings.

To this end, Member Perry concluded that the Certificate of Determination in the 2019 proceedings make it clear that there was an award for the employer in respect of the alleged injury (albeit frank) and/or consequential injury to the cervical spine.  He continued that if the Applicant were to be allowed to then reframe the case in relation to the alleged injury (or consequential injury) as a disease injury (as opposed to a frank or consequential injury), this would contribute to the existence of conflicting or contradictory judgements. As such, it was held that Mr Geary was estopped

Mr Geary thereafter sought to appeal the decision of Member Perry, although President Judge Phillips dismissed the appeal and the initial decision of Member Perry was confirmed.

The Effect

This decision shows the need for workers to properly articulate their claims for with respect to injuries said to have been sustained in the course of their employment by consideration to all available evidence. This is particularly the case with respect to ‘disease injuries’ within the meaning of s4(b) of the  1987 Act where a worker may have had a long period of employment and although an injury appears to be frank in nature, it may really be the result of a gradual process with the “frank incident” simply being the catalyst for the emergence of florid symptoms.

Were a claim not to be articulated appropriately and in consideration of the available medical evidence but thereafter resolved by providing awards for some body parts, a worker may be later subject to an Anshun estoppel from bringing a claim for that body part under s4(b) of the 1987 Act were it found that such a claim could have been conceivably pleaded by the worker in previous proceedings.

Contributor: Daniel Tuxford

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.