Abou-Haidar v Consolidated Wire Pty Ltd

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

1. 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

1. 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.

2. 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.

3. 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…