Central West Group Apprentices Ltd v Barrett

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137
APPELLANT:		Central West Group Apprentices Ltd
RESPONDENT:		Mark Thomas Barrett
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		WCC8933-07
DATE OF ARBITRATOR’S DECISION:		22 August 2008
DATE OF APPEAL DECISION:		20 November 2008
SUBJECT MATTER OF DECISION:		Lump sum compensation; multiple post 31 December 2001 injurious events; circumstances in which the effects of multiple injurious events may be aggregated to meet the threshold for compensation under section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Ellison Tillyard Callanan
Respondent:	White Barnes
ORDERS MADE ON APPEAL:		Paragraphs one and two of the Arbitrator’s determination of 22 August 2008 are revoked and the following orders made: “1.The Applicant sustained the same injury to his lumbar spine arising out of or in the course of his employment with the Respondent in incidents on 8 April 2003 and 25 January 2005. As a result, under section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998, his impairments, assessed by an Approved Medical Specialist in a Medical Assessment Certificate dated 11 March 2008, are to be assessed together. 2.   The Respondent is to pay the Applicant the following lump sum compensation: (i) $15,000 under section 66 of the Workers Compensation Act 1987 in respect of a 12% whole person impairment made up as follows: 6% permanent impairment as a result of the incident on 8 April 2003 and 6% permanent impairment as a result of the incident on 25 January 2005; (ii) $12,500 under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering. 3.  The orders made in paragraph 2 of the Certificate of Determination of 10 June 2008 and in paragraph 2(i) above will be satisfied on the payment of $15,000, if that has not already been paid.” Paragraphs three and four of the Arbitrator’s determination of 22 August 2008 are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

1. This appeal concerns the circumstances in which the effects of two work incidents may be aggregated to meet the threshold for the recovery of compensation in section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND

1. The worker, Mr Barrett, injured his back whilst working for Central West Apprentices Ltd (‘Central West’) on 8 April 2003.  After a few months off work, during which time he received physiotherapy, his back settled and he returned to his original job.  He had no restrictions in the use or movement of his back and he continued his full pre-injury duties until 25 January 2005, when he suddenly developed severe pain in his low back and right leg whilst swinging an axe in the course of his employment.  He stopped work and…