Gane v Dubbo City Council - [2007] NSWWCCPD 140

WORKERS COMPENSATION COMMISSION

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

CITATION:Gane v Dubbo City Council [2007] NSWWCCPD 140
APPELLANT:  Arthur William Gane
RESPONDENT:  Dubbo City Council
INSURER:Gallagher Bassett Services Workers Compensation NSW
FILE NUMBER:  WCC9815-06
DATE OF ARBITRATOR’S DECISION:          10 November 2006
DATE OF APPEAL DECISION:  14 June 2007
SUBJECT MATTER OF DECISION:                Claim for additional lump sum compensation as a result of a deterioration; weight of evidence; role of Arbitrator in such a claim.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Stacks
Respondent:   Edwards Michael Moroney

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 November 2006 is revoked and the matter is remitted to a different Arbitrator for referral to an Approved Medical Specialist and determination of the Appellant Worker’s entitlements under section 66 of the Workers Compensation Act 1987 in accordance with the reasons in this decision and, if appropriate, his entitlement to compensation for pain and suffering under section 67.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the arbitration hearing.

BACKGROUND TO THE APPEAL

On 8 December 2006 Arthur William Gane (‘the Appellant Worker/Mr Gane’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 November 2006.

The Respondent to the Appeal is Dubbo City Council (‘the Respondent Employer/the Council’).

On 7 November 1999 Mr Gane was working as a library assistant for the Council at the Dubbo branch of the Macquarie Regional Library when an alarm went off. In response to the alarm he was running towards the fire exit when his left knee gave way and he fell to the ground. He was taken by ambulance to hospital where he was admitted and found to have suffered a ruptured left patella tendon, which required surgical repair. Dr Redgment, orthopaedic surgeon, repaired the tendon and Mr Gane was discharged from hospital seven days later.

After about one month Mr Gane returned to work on light duties and then full duties two months after that. At the time he returned to full duties he had lost some feeling on the left side of his knee and had a “small degree of stiffness” in his knee (see Mr Gane’s statement 18 May 2006).

On 17 August 2000 Dr Cowdery examined Mr Gane on behalf of the Council’s insurer (‘GIO’). Dr Cowdery assessed Mr Gane to have a 10% “permanent impairment of the left knee” with no “pre-injury component”.

On 5 September 2000 Mr Gane made a claim for lump sum compensation in respect of a 25% permanent impairment (loss of efficient use) of the left leg at or above the knee plus $20,000.00 for pain and suffering (‘the first claim’). The claim was based on reports from Dr Bentivoglio dated 2 August 2000 and Dr Berry dated 3 April 2000.

The first claim was settled for $7,500.00 in respect of a 10% “loss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 140
Decision Date: 14 June 2007

CaseChat Overview and Summary

The Workers Compensation Commission was asked to review a decision of an Arbitrator, who found that Mr Arthur William Gane had not demonstrated that his left knee had deteriorated since his initial settlement for a 10% loss of efficient use of his left leg at or above the knee. The Arbitrator's decision was that Mr Gane had not demonstrated a deterioration in his left knee that would justify a further claim for compensation. Mr Gane appealed the Arbitrator's decision. The appeal was allowed and the Arbitrator's decision was revoked. The matter was remitted to a different Arbitrator for referral to an Approved Medical Specialist and determination of Mr Gane’s entitlements under section 66 of the Workers Compensation Act 1987 in accordance with the reasons in this decision and, if appropriate, his entitlement to compensation for pain and suffering under section 67. The Respondent Employer was ordered to pay the Appellant Worker’s costs of the appeal and of the arbitration hearing.

Orders