Department of Ageing Disability & Home Care v Heggie

[2008] NSWWCCPD 112

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Department of Ageing Disability & Home Care v Heggie [2008] NSWWCCPD 112
APPELLANT:		Department of Ageing Disability & Home Care
RESPONDENT:		Marie Heggie
INSURER:		Allianz Australia Insurance Ltd
FILE NUMBER:		WCC2933-08
DATE OF ARBITRATOR’S DECISION:		6 June 2008
DATE OF APPEAL DECISION:		7 October 2008
SUBJECT MATTER OF DECISION:		Causation; weight of evidence; adequacy of reasons.
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		McLean Lawyers
Respondent:		Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 4 June 2008 is confirmed.
The Appellant is to pay the Respondent’s costs of the Appeal.

BACKGROUND TO THE APPEAL

1. On 1 July 2008, the Department of Ageing, Disability and Home Care (‘the Department’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 June 2008.

1. The Respondent to the appeal is Marie Heggie (‘Ms Heggie’).

1. Ms Heggie is a 55 year old assistant in nursing at Stockton Hospital who alleges that she suffered an injury to her left leg and right hip on 10 June 2005 when she slipped whilst leaving her place of employment at Stockton Hospital.

1. In due course, Ms Heggie sought lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for a 10% whole person impairment, 8% of which related to her restricted range of motion associated with an injury to her right hip and 2% for impairments relating to the injury to her left knee.

1. The Department disputed liability on the basis that the injury to Ms Heggie’s right hip did not arise out of the course of her employment (section 4 of the 1987 Act).  The Department also allege that employment was not a substantial contributing factor to any injury to the right hip (section 9A of the 1987 Act).

1. On 21 April 2008 Ms Heggie filed an Application to Resolve a Dispute in the Commission. 

1. The Department filed a reply relying upon the issues raised in the notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The Department raised the following reasons for disputing liability:

(a)Dr Bodel, a medico-legal consultant retained by the Department, considered that the condition of the right hip resulted not from the injury, but from the result of an underlying arthritic degenerative condition;

(b)No complaints of any injury to the right hip were made at the time of the injury on 10 June 2005 or in fact, until many months later when Ms Heggie had returned to work;

(c)Dr Sullivan, a treating sport physician, examined Ms Heggie and noted that her gait was satisfactory and her range of motion of the hip was preserved, and

(d)Dr Bodel did not consider Ms Heggie to have any impairment as a result of the injury sustained on 10 June 2005. 

1. The matter was listed for…