Bridge Inn Nominees Pty Ltd v Carr

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bridge Inn Nominees Pty Ltd v Carr [2015] NSWWCCPD 64
APPELLANT:	Bridge Inn Nominees Pty Ltd
RESPONDENT:	Marilyn Carr
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2126/15
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	11 August 2015
DATE OF APPEAL DECISION:	16 November 2015
SUBJECT MATTER OF DECISION:	Adequacy of reasons; application of Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; finding of consequential condition in the right shoulder from the use of crutches and overuse associated with an accepted injury to the left hip; assessment of expert evidence; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Curwoods Lawyers
Respondent:	Slater + Gordon Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 11 August 2015 is confirmed.

INTRODUCTION

1. This appeal challenges an Arbitrator’s finding that the worker suffered a consequential condition in her right shoulder as a result of the use of crutches and using the right shoulder to support herself in various activities of daily living, following an accepted injury to her left hip. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

1. Mrs Marilyn Carr, the respondent worker, was employed by Bridge Inn Nominees Pty Ltd, the appellant employer, as a cleaner at the Sportslander Motor Inn at Moama, New South Wales.

2. On 23 August 2013, Mrs Carr was cleaning bathrooms at the motor inn when she slipped on a tiled floor and fell heavily on to her left side. Mrs Carr suffered a fracture of the neck of the left femur and minor injuries to her left hand and both knees. There is no dispute with respect to those injuries.

3. Immediately after the incident, Mrs Carr was taken by ambulance to Echuca hospital. She was subsequently transferred to Bendigo hospital, where she underwent internal fixation of the fracture of the neck of the femur at the hand of Dr Husaini, locum doctor.  

4. After four or five days Mrs Carr was discharged from hospital. Following her discharge from hospital Mrs Carr used crutches for 12 weeks. She alleges that due to the use of the crutches, and by reason of favouring the right arm, in addition to the impairment resulting from the fracture to the hip, she also suffered a consequential injury to the right shoulder.

5. On 8 January 2015, Mrs Carr’s legal representative, Slater + Gordon Lawyers, made a claim for lump sum compensation in the sum of $18,700 in respect of 13 per cent whole person impairment, pursuant to s 66 of the Workers Compensation Act 1987. This claim was made in accordance with Dr James Bodel’s assessment of 13 per cent, recorded in his report of 5 December 2014 to comprise of six per cent whole person impairment in respect of the right upper…