Eason v Bluescope Steel Ltd

[2006] NSWWCCPD 265

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Eason v Bluescope Steel Ltd [2006] NSWWCCPD 265

APPELLANT:  Trevor Eason

RESPONDENT:  Bluescope Steel Ltd

INSURER:Self Insured

FILE NUMBER:  WCC19204-05

DATE OF ARBITRATOR’S DECISION:          11 April 2006

DATE OF APPEAL DECISION:  9 October 2006

SUBJECT MATTER OF DECISION: Serious and permanent disablement; section 65(13) Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Russell McLelland Brown

Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL:  Paragraphs one and two of the Arbitrator’s decision are revoked and the following order made:

“1. The matter is remitted to the original Arbitrator for the remaining issues in section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 to be determined and, if appropriate, for the matter to be referred to an Approved Medical Specialist for assessment of the impairment of the Applicant’s back and loss of efficient use of his right leg at or above the knee.”

Costs of the first Arbitration are to follow the event of the second Arbitration.

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 10 May 2006 Trevor Eason (‘the Appellant Worker/Mr Eason’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 April 2006.

1. The Respondent to the Appeal is Bluescope Steel Ltd (‘the Respondent Employer/Bluescope’).

1. Mr Eason was born on 19 November 1969 and started work with the Respondent Employer as an electrician in January 1986.  He worked with Bluescope until he accepted a voluntary redundancy on 26 July 2006.  He alleges that he injured his back on two occasions with the Respondent Employer: first in April 2001 and second in July 2001.  His symptoms increased significantly when he was at home in September 2001.  Neither injury was reported until about 10 December 2001 when he took steps to submit Incident Report forms to Bluescope.

1. Mr Eason made no claim for compensation until 12 April 2005 when his current solicitor wrote to Bluescope claiming lump sum compensation in the sum of $9,000.00 in respect of a 15% permanent impairment of his back, $7,500.00 in respect of a 10% loss of efficient use of his right leg at or above the knee and $10,000.00 compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Liability for the claim was denied by Bluescope’s solicitor in a letter dated 29 August 2005.

1. On 10 November 2005 Mr Eason’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission.  In the Application he claimed the same compensation set out in the letter of 12 April 2005 referred to above.  In its Reply the Respondent Employer denied liability because, among other reasons, Mr Eason had not given notice of injury and had not claimed compensation within the time limits set in the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The claim was listed for conciliation/arbitration conference on 17 March 2006. As the matter could not be resolved, it proceeded to Arbitration on that day. In a reserved decision the Arbitrator made several findings in favour of Mr Eason on the issues of ‘injury’ and ‘notice of injury’, but made an award for the Respondent Employer on the ground that the Appellant Worker’s claim for compensation had been made more than three years after the injury and the injury had not resulted in “serious and permanent disablement” within the meaning of section 65(13)(b) of the 1998 Act.

1. Mr Eason seeks leave to appeal that decision.  No appeal has been lodged by the Respondent Employer against the Arbitrator’s other findings and those findings have not been considered on appeal and remain undisturbed.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.  No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. The Appellant Worker seeks an oral hearing in this matter because the appeal is said to raise complex legal issues.  I do not believe that the matters raised in the appeal are so complex that an oral hearing is required.

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, including the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 11 April 2006, records the Arbitrator’s orders as follows:

“1.An award to the Respondent for claims for compensation under Sections 60, 66 and 67 of the Workers Compensation Act 1987 due to injuries in April and July 2001.

2.No order as to costs.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)finding that the Appellant Worker’s injuries did not result in “serious and permanent disablement” within the meaning of section 65(13)(b) of the 1998 Act;

(b)not evaluating the meaning of the terms ‘serious’ and ‘disablement’ in section 65(13)(b) in terms of the Appellant Worker’s capacity to work;

(c)evaluating the seriousness of the Appellant Worker’s injury by reference to medical evidence as to the need for surgery;

(d)failing to evaluate whether the worker had suffered a loss of capacity for work as required by the authorities of Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401 (‘Kuhna’) and Gregson v L & M Dimasi Pty Ltd (2000) 20 NSWCCR 520 (‘Gregson’); and

(e)failing to consider and apply the correct interpretation of the phrase “serious and permanent disablement”.

SECTION 65(13)

1. The Appellant Worker accepts that his claim for compensation was made more than three years after his injuries and, as a result, he has to satisfy the conditions set out in section 65(13) in order to be entitled to recover compensation. That subsection provides:

“65    Making a claim for compensation

(13)The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:

(a)  the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(b)  the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”

ARBITRATOR’S DECISION

1. The Arbitrator decided that the Appellant Worker’s injury had not resulted in serious and permanent disablement and, therefore, did not determine the first stage of section 65(13). In deciding the serious and permanent disablement issue the Arbitrator considered the dictionary definition of the words ‘serious’ and ‘disablement’ (see Statement of Reasons for Decision (‘Reasons’) at paragraphs 49 and 50). He noted that ‘disablement’ does not have the same meaning as ‘impairment’ in sections 66 and 67 of the 1987 Act. He held that all that is necessary to found a successful claim for impairment is that due to injury a body part or parts does not operate as efficiently as they did before the injury and that a person with a back impairment could be compensated for it even if they were not disabled or incapacitated (Reasons, paragraph 51).

1. The Arbitrator then considered Mr Eason’s case and referred to the claim made for 15% permanent impairment of the back and 10% permanent loss of efficient use of the right leg at or above the knee, noting that there was no claim for weekly compensation.  He thought that a person could have a permanent disablement, without it being serious, and a serious incapacity, without it being permanent.  The Arbitrator concluded that Mr Eason’s condition was a “permanent state of disablement” (Reasons, paragraph 54).  No challenge is made to that finding.

1. In respect of whether Mr Eason’s condition was ‘serious’ the Arbitrator quoted the following passage from Dr Bodel, orthopaedic surgeon qualified by the Appellant Worker, in his report of 6 January 2005:

“He has some clinical signs of mild nerve root irritability and radiculopathy in the right leg but this is not sufficiently severe to warrant surgery. 

I would encourage an exercise program to strengthen the back and abdominal region and this will enhance function.  If he does a [sic] significant flare-up of his leg pain then he will need to consider peri-radicular block injections or possible decompressive surgery as he does have a significant disc prolapse in this region.  There is no absolute indication for this at the moment however.”

1. The Arbitrator then concluded that he was not satisfied that the disablement was a “serious disablement to the extent expected with the current strenuous legislative intent” (Reasons, paragraph 56).

SUBMISSIONS

1. The Appellant Worker challenges the Arbitrator’s approach to the interpretation of section 65(13)(b), submitting:

·     whether disablement is serious and permanent raises questions of fact;

·     however, those questions must be resolved in an employment context, namely, as a question of fact, does the disablement affect in a serious and permanent way the Appellant Worker’s capacity for work;

·     it is in this context that the meaning of the words ‘serious’ and ‘disablement’ must be evaluated, not by considering the dictionary meaning of those words;

·     the Arbitrator wrongly evaluated the seriousness of the Appellant Worker’s condition by reference to medical evidence dealing with the need for surgery;

·     the Arbitrator accepted that Mr Eason sustained a lumbar sacral disc protrusion as a result of his work injuries and that his employment was a substantial contributing factor to his injuries (Reasons, paragraph 30);

·     the only evidence on impairment was from Dr Bodel who provided the assessments set out in the Application;

·     Mr Eason worked as an electrician at the time of his injuries;

· a proper application of section 65(13)(b) required the Arbitrator to evaluate whether the Appellant Worker, as a result of his injury, had suffered a loss of capacity for work and his failure to do so amounts to an error;

·     the Arbitrator failed to appreciate and apply the authorities relevant to the phrase “serious and permanent disablement”;

·     the only medical evidence on capacity for work was from Dr Bodel who thought it was appropriate that Mr Eason changed his career path “as he is better suited to the work he is currently doing [i.e. teaching] than to general electrical work, particularly in a large industrial situation” (Dr Bodel, 6 January 2005, page three);

·     Dr Bodel added at page four of the same report that Mr Eason’s “ability to find work in the open labour market has also been compromised by those injuries”;

·     therefore, it is submitted that there is only one answer to the correct legal question, namely, that as Mr Eason is incapacitated for work his injuries have resulted in “serious and permanent disablement”.

1. The Respondent Employer submits that:

·     the Appellant Worker has misrepresented the authority of Kuhna.  In that case the trial judge found that the worker’s injury had resulted in serious and permanent disablement.  On appeal the employer argued that because the worker could earn as much in his post injury work as he had if he had not been injured, the court had to find that the injury was not serious.  That argument was rejected by the Court of Appeal;

·     Kuhna is not authority for the proposition that if an injured worker’s capacity for work is in any way reduced by an employment injury the disablement must be serious.  If it was authority for this proposition then a worker who is restricted in any minor degree in the performance of his or her pre injury duties would be held to be ‘seriously disabled’ and such a result would be absurd;

·     the issues to be considered by a Presidential Member in an appeal from an Arbitrator are set out in Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7 at [18] where Deputy President Fleming said:

“18. Appeal to a Presidential Member is concerned with claimed error, of law or fact, not with the hearing of evidence and determination of the matter at first instance. A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesch v Maunz [2000] HCA 40 (3 August 2000)).”

·     the Appellant Worker has not demonstrated any error of law or misuse of discretion by the Arbitrator in reaching his decision;

·     an appellate court should not lightly interfere with a factual finding by a primary decision maker unless there are strong grounds for concluding the decision was mistaken or inconsistent with an overwhelming body of evidence or results in a glaringly improbable result;

·     the Appellant Worker’s post injury condition is set out at paragraphs 16 to 20 inclusive of his statement of 28 October 2005.  His complaints are not of great magnitude; they have not prevented him from engaging in full time employment; he does not require ongoing medical treatment or physiotherapy, and there is no suggestion that the situation is likely to change in the future;

·     there was ample evidence to support the Arbitrator’s conclusion that the Appellant Worker’s disability was not serious and this was the compelling inference that ought be drawn from the evidence, and

·     the Arbitrator’s decision should be confirmed.

DISCUSSION AND FINDINGS

1. The leading authorities on the meaning of the phrase “serious and permanent disablement” are Kuhna and Gregson.  In Kuhna the Court of Appeal considered the meaning of the phase in the context of section 14(2) of the 1987 Act which deals with situations where a worker has sustained an injury as a result of his “serious and wilful misconduct”.  In that situation compensation is not payable in respect of such an injury unless the injury has resulted in death or “serious and permanent disablement”. 

1. In Kuhna the worker suffered multiple abrasions to both elbows, a fractured nose, a fracture of two ribs on the right side, a comminuted fracture of the orthopaedic surgeon calcis and an undisplaced fracture of the left lateral malleolus. As a result of his injuries he was unfit for any work from 4 June 1988 until 14 August 1988. He was permanently unfit for his pre injury work as a miner. The employer argued on appeal that the proper question was: was the worker seriously and permanently disabled for work generally, not just for his pre injury job? Cripps JA agreed with the employer’s submission that “disablement” in section 14(2) “is to be understood in an employment context” (at 405E). His Honour added “that is to say, it is not sufficient merely to conclude that a worker suffers an impairment”. On this issue his Honour referred to Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 at 127 where Jacobs JA, in dealing with the same phrase in the Workers Compensation Act 1926, said:

“The condition required under the section now being considered will be satisfied provided there is evidence that the disability was both serious and permanent.  In the context it is correct, I think, to apply those words to employment situations, and it seems to me that that is what the medical evidence did in this case.”

1. Cripps JA then continued at 406B:

“In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work.  The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker’s activity and, it is submitted, that was not done.”

1. That submission by the employer was rejected on appeal.  Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner “did not mandate a conclusion that he had not been seriously and permanently disabled” (at 406G).

1. In a short judgment Mahoney JA agree with Cripps JA and added at 402B:

“No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work.  But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.”

1. Gregson concerned the meaning of “serious and permanent disablement” in section 65(13), though the consideration of the phrase by Judge Burke was strictly obiter.  Nevertheless the facts and his Honours comments are instructive.  At [78] his Honour said:

“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”

1. In that case the worker suffered a back injury with consequential back and leg pain. In cross examination the worker conceded that he could do some suitable light work but could not do his pre injury duties. There were conflicting diagnoses in the case: Dr Stephenson diagnosing a lumbar strain and Dr Combe diagnosing a “disc derangement”. The CT scan disclosed “discal anomalies” (at [83]). On the question of impairment Dr Stephenson assessed a 10% impairment of the back and Dr Combe a 30% impairment. In respect of the legs, Dr Stephenson assessed there to be no loss of use of the legs and Dr Combe assessed a 10% loss of use of each leg. His Honour preferred the evidence of Dr Combe. Having regard to the findings made, his Honour added at [105] that the worker “certainly falls within” the description “serious and permanent disablement” in section 65(13).

1. In the present case the Appellant Worker’s medical evidence is set out in several medical reports and, on the issue before me, is unchallenged.  The first specialist to examine Mr Eason was Dr Moloney, neurosurgeon, who saw him on 4 February 2002.  His diagnosis was that Mr Eason had sustained an injury to the lumbo sacral disc “with a protrusion on the right side irritating the transit of the S1 nerve root” (Dr Moloney 1 July 2004, page two).

1. Dr Pell, neurosurgeon, examined Mr Eason on 30 September 2003 and recommended a cortisone injection to the facet joint and to the right S1 nerve.  He felt that Mr Eason “may require surgical decompression at the lumbar sacral level with lumbar laminectomy without fusion procedure” (Dr Pell 26 May 2004, page two).

1. More detailed reports were obtained from Dr Bodel, orthopaedic surgeon, on 6 January 2006.  The following points are noted about Mr Eason and his disability in these reports:

·     he was working in Queensland as a graphic arts high school teacher;

·     he was having no active treatment apart from occasional analgesic tablets;

·     he complained of pain in the back and right buttock with occasional pain in the left buttock;

·     his symptoms included a pulling sensation and intermittent numbness and tingling in the right calf and foot;

·     prolonged sitting or bending and lifting can aggravate his symptoms;

·     some relief is obtained with rest, heat and analgesics;

·     prolonged driving can aggravate his pain;

·     he has some difficulty with household maintenance and cleaning activities;

·     on examination there was discomfort on palpation of the thoracolumbar junction and over the right side of the lumbosacral junction;

·     flexing to the mid tibia caused increasing back and right buttock pain;

·     there was pain on extension and lateral bending to the left;

·     there was some asymmetry of movement;

·     there was some mild nerve root irritability in the right leg;

·     the right calf was a half a centimetre smaller than the left;

·     the right ankle jerk was slightly diminished;

·     there was sensory impairment in the S1 distribution on the right and weakness of plantar flexion on the right, and

·     he has a 15% permanent impairment of his back and a 10% permanent loss of efficient use of his right leg at or above the knee as a result of his injuries.

1. Dr Bodel’s opinion was that there were “clinical signs of mild nerve root irritability and radiculopathy in the right leg but this is not sufficiently severe to warrant surgery” (Dr Bodel 6 January 2005, page three).  He added that if Mr Eason suffers a significant flare up of his symptoms he will need to consider peri-radicular block injections or “possible decompressive surgery as he does have a significant disc prolapse in this region”.

1. In respect of Mr Eason’s capacity for work, Dr Bodel said:

“It is appropriate for him to have changed his career path as he is better suited to the work he is currently doing than to general electrical work, particularly in a large industrial situation.

This gentleman’s complaints are quite genuine.  The episodes of injury at work are a substantial contributing factor to ongoing complaints.  His ability to find work in the open labour market has also been compromised by those injuries.”

1. The radiological evidence was fairly encapsulated in the MRI scan performed on 7 February 2002 by Dr Chapman which concluded:

“Moderately large right posterolateral focal disc protrusion at L5/S1 with mass effect upon the thecal sac and the descending right S1 nerve root.”

1. Mr Eason’s evidence about his condition is set out in paragraphs 16 to 20 inclusive of his statement of 28 October 2005 where he said:

“16.I continued to get pain in the back, right buttock and down my right leg.  I also have occasional pain [in] the left buttock.  I also suffer from a pulling sensation in my back and right calf.  I get numbness and tingling in the right calf and foot.

17.Any form of prolonged sitting, bending or lifting aggravates the symptoms.

18.I try to exercise by walking in order to maintain some form of fitness.  This also aggravates the symptoms at times.

19.When my back is painful, I take analgesic tablets and try to rest and apply heat to my back.

20.I used to enjoy playing competition golf.  At one stage I played off a handicap of 8.  However, due to my back injury I have played very little golf and do not play a full game.  Generally, I shy away or disengage from any form of heightened activity that may require anything more then [sic] a walk.”

1. In light of the above authorities and evidence it is my opinion that the Arbitrator was wrong to conclude that Mr Eason’s disablement was not “a serious disablement to the extent expected with the current strenuous legislative intent” (Reasons, paragraph 56).  The main reason for the Arbitrator reaching that conclusion was Dr Bodel’s reference to the need for surgery in the event of a significant flare up of Mr Eason’s leg pain.  The Arbitrator did not refer to or apply the principles set out in Kuhna and, in this regard, he was in error.

1. The Arbitrator rightly referred to the fact that a person can have a permanent disablement without it being serious, but did not refer to Mr Eason’s evidence about the effect the injuries had on him nor did he consider the significance of Dr Bodel’s opinion that it was appropriate for Mr Eason to have changed careers.  When one considers that evidence together with the principles set out in Kuhna, it is my opinion that the only proper conclusion is that the Appellant Worker does have a serious and permanent disablement. 

1. I have carefully considered the Respondent Employer’s argument that Mr Eason’s complaints are not of great magnitude, have not prevented him from engaging in full time employment, and that he does not require ongoing medical treatment.  These submissions ignore the fact that Mr Eason is now working in suitable employment, has a proven disc prolapse with objective evidence of nerve root irritability and radiculopathy, and that he has continuing back and leg symptoms which are aggravated with activity.  Lack of regular treatment does not necessarily indicate that a disability is not severe.  In respect of medication, it is relevant to note that Mr Eason stopped taking anti inflammatory medication because he developed an allergy to such medication (Dr Bodel 6 January 2005, page two).

1. The circumstances in which an Arbitrator’s decision may be revoked on review under section 352 of the 1998 Act have been considered in numerous cases.  In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it was said:

“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54])

1. The appellant needs to establish that the Arbitrator’s decision is affected by some error of fact, law or discretion.  I am satisfied that the Arbitrator’s decision is so affected in that he failed to consider relevant evidence from Dr Bodel and Mr Eason, and failed to consider or apply the correct principles (set out in Kuhna and discussed in Gregson) to determine if the Appellant Worker’s disability is serious.

1. In concluding that Mr Eason does have a serious and permanent disablement I have had regard to and accepted his evidence set out at paragraph [37] above.  I also accept the findings on examination and conclusions reached by Dr Bodel set out at paragraphs [33], [34] and [35] above.  That evidence establishes that Mr Eason has objective signs of nerve root irritation, pain in his back and right leg which is easily aggravated by activity, restricted activities of daily living, and a restricted capacity to perform work.  Those factors satisfy me that Mr Eason’s injuries have resulted in him suffering a serious and permanent disablement.

1. The evidence also establishes, and I find, that the ‘disablement’ or interference with Mr Eason’s capacity to work is ‘serious’ in that it was appropriate for him to have changed his career path and that his ability to find work in the open labour market has been compromised.  Further, Mr Eason’s disablement in terms of his capacity to work is ‘serious’ in circumstances where he suffers an aggravation of his symptoms with “any form of prolonged sitting, bending or lifting” and he avoids “any form of heightened activity that may require anything more then [sic] a walk” (Mr Eason’s statement 28 October 2005, paragraphs 17 and 20 respectively).

1. Therefore, it is my view that the test set out in section 65(13)(b) is satisfied and the matter should be remitted to the Arbitrator to determine the remaining issues in section 65(13) and, if appropriate, to refer the matter to an Approved Medical Specialist for assessment.

DECISION

1. Paragraphs one and two of the Arbitrator’s decision are revoked and the following order made:

“1.The matter is remitted to the original Arbitrator for the remaining issues in section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 to be determined and, if appropriate, for the matter to be referred to an Approved Medical Specialist for assessment of the impairment of the Applicant’s back and loss of efficient use of his right leg at or above the knee.”

1. Costs of the first Arbitration are to follow the event of the second Arbitration.

COSTS

1. The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

Bill Roche

Acting Deputy President

9 October 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE