| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 | ||||
| APPELLANT: | Jean Abou-Haidar | ||||
| RESPONDENT: | Consolidated Wire Pty Ltd | ||||
| INSURER: | Employers Mutual NSW Limited | ||||
| FILE NUMBER: | A1-4108/10 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 13 September 2010 | ||||
| DATE OF APPEAL HEARING: | 2 December 2010 | ||||
| DATE OF APPEAL DECISION: | 10 December 2010 | ||||
| SUBJECT MATTER OF DECISION: | Claim for additional lump sum compensation; injury conceded; whether any need to establish deterioration since initial claim | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Mr J Harris, instructed by Sanford Legal | |||
| Respondent: | Mr S Flett, instructed by Edwards Michael Lawyers | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 13 September 2010 is revoked and the following orders made: 1. The matter is remitted to another arbitrator for a teleconference and, if sought by the worker, remittal to the Registrar for referral to an Approved Medical Specialist (Dr O’Neill) for assessment of the worker’s whole person impairment as a result of his injury to his thoracic spine. 2. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $800 plus GST. In the event that Dr O’Neill conducts a further whole person impairment assessment, the parties are given liberty to apply to an arbitrator in respect of costs of the arbitration. | ||||
INTRODUCTION
This appeal concerns an application for additional lump sum compensation in respect of an undisputed injury to the thoracic spine. The issue is whether, in such an application, it is necessary for a worker to establish a deterioration in his or her condition since the initial claim before the matter can be referred for assessment by an Approved Medical Specialist (AMS).
BACKGROUND
The appellant worker, Mr Abou-Haidar, started work for the respondent employer, Consolidated Wire Pty Ltd (Consolidated), as a machine operator and process worker in August 2004. He first injured his neck and thoracic spine in the course of his employment on 6 August 2005 when he and another worker unrolled lengths of wire and, secondly, as a result of performing work between 2 August 2004 and 24 August 2005 that required him to sit at a bench with his neck constantly bent forward, checking cables. The insurer accepted liability and paid weekly compensation until 15 December 2005.
On 25 June 2006, Dr Guirgis assessed the worker to have a 16 per cent whole person impairment, assessed as follows:
(a) seven per cent for the cervical spine, reduced to six per cent because of a pre-existing condition;
(b) seven per cent for the thoracic spine, reduced to six per cent because of a pre-existing condition;
(c) nil per cent for the lumbar spine;
(d) two per cent for the right knee, and
(e) two per cent for the left knee.
Dr Guirgis wrongly made an allowance for the “significant” effects on the activities of daily living in both his assessment of the impairment for the cervical spine…
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- Case
- [2010] NSWWCCPD 128
- Decision Date
CaseChat Overview and Summary
The central issue for the tribunal was whether, in cases where the injury itself is not contested, the worker is still required to establish a deterioration in their condition since the initial injury claim in order to be entitled to additional compensation. The tribunal examined whether the worker must demonstrate that their current state is worse than when the initial claim was made, or if the concession of the injury alone suffices.
The tribunal found that, in such circumstances, the worker need not establish a deterioration in their condition since the initial injury claim. The tribunal revoked the Arbitrator’s determination and directed that the matter be remitted to another arbitrator for a teleconference, and potentially to an Approved Medical Specialist for further assessment of the worker's whole person impairment. The tribunal also ordered the employer to pay the worker's costs of the appeal. If Dr O’Neill conducts a further whole person impairment assessment, the parties are given liberty to apply to an arbitrator in respect of costs of the arbitration.
Orders
Orders of the court
The Arbitrator’s determination of 13 September 2010 is revoked and the following orders made:
1. The matter is remitted to another arbitrator for a teleconference and, if sought by the worker, remittal to the Registrar for referral to an Approved Medical Specialist (Dr O’Neill) for assessment of the worker’s whole person impairment as a result of his injury to his thoracic spine.
2. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $800 plus GST. In the event that Dr O’Neill conducts a further whole person impairment assessment, the parties are given liberty to apply to an arbitrator in respect of costs of the arbitration.
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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