French v Hayes

[2020] NSWWCCPD 26

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

CITATION:

French v Hayes [2020] NSWWCCPD 26

APPELLANT:

Kevin J French

RESPONDENT:

Sean Hayes

INSURER:

AAI Limited t/as GIO – agent for the Workers Compensation Nominal Insurer

FILE NUMBER:

A1-4469/19

SENIOR ARBITRATOR:

Mr G Capel

DATE OF SENIOR ARBITRATOR’S DECISION:

30 October 2019

DATE OF APPEAL DECISION:

7 May 2020

SUBJECT MATTER OF DECISION:

Whether error in determining the need for surgery resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 considered and applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr D Adhikary, counsel

Rankin Ellison Lawyers

Respondent:

Mr L Morgan, counsel

Toby Tancred Solicitor

ORDERS MADE ON APPEAL:

1.    The name of the respondent wherever it appears is amended to “Kevin J French”.

2.    The Senior Arbitrator’s Certificate of Determination dated 30 October 2019 is confirmed.

3.    The matter is remitted to the Senior Arbitrator for determination of the remaining issues

INTRODUCTION AND BACKGROUND

1. Mr Sean Hayes (the respondent) commenced proceedings in the Commission claiming weekly payments of compensation, treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum compensation pursuant to s 66 of the 1987 Act. The respondent also sought an assessment of his whole person impairment (WPI) for the purpose of establishing that he was a worker with highest needs as defined by s 32A of the 1987 Act. The respondent alleged that he suffered injury to his neck with symptoms in both arms as a result of being hit in the head by a falling aluminium plank during the course of his employment with Kevin J French (the appellant) as a painter. The injury occurred on 28 January 1998. The appellant declined the claim.

2. The respondent had previously received compensation pursuant to s 66 of the 1987 Act. On 4 December 2002, the appellant agreed to pay compensation in respect of 25% permanent impairment of the respondent’s neck, together with an amount in respect of the associated pain and suffering pursuant to s 67 of the 1987 Act. A second lump sum claim was resolved in favour of the respondent on 29 February 2012 in which the respondent was assessed as having a further 5% impairment of the neck as well as 15% loss of efficient use of the left arm at or above the elbow and 5% loss of use of the right arm at or above the elbow.

3. On 29 May 2017, the respondent underwent surgery to his cervical spine in the form of a two-level anterior discectomy and fusion at the C5/6 and C6/7 levels, which was performed under the public health system, as liability for the surgery had been declined…