Greater Taree City Council v Moore

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Greater Taree City Council v Moore [2010] NSWWCCPD 49
APPELLANT:		Greater Taree City Council
RESPONDENT:		Kay Moore
INSURER:		StateCover Mutual Limited
FILE NUMBER:		A2-4142/08
ARBITRATOR:	Mr S Lancken
DATE OF ARBITRATOR’S DECISIONS:		7 October 2008; 11 May 2009 and 4 November 2009
DATE OF APPEAL DECISION:		5 May 2010
SUBJECT MATTER OF DECISION:		Claim for lump sum compensation where injury conceded; referral to Approved Medical Specialist; issues in dispute
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	Stacks Taree
ORDERS MADE ON APPEAL:		Paragraphs two and three of the determination of 7 October 2008 are revoked.  All other orders in the determination of 7 October 2008, and the determinations of 11 May 2009 and 4 November 2009, are confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal concerns the application of the principles in Haroun v Rail Corporation NSW & ors [2008] NSWCA 192 (‘Haroun’) where the only compensation claimed was lump sum compensation for whole person impairment and the employer conceded that the worker received an injury.

BACKGROUND

1. The respondent worker, Kay Moore, started work with the appellant employer, Greater Taree City Council (‘the Council’) as an executive assistant in May 1989.  Her duties were essentially clerical but, from time to time, she organised and set up functions held at the Council’s Chambers, which required physical exertion by her to move plants and other heavy objects.

1. While preparing for a function on 16 September 2004, Ms Moore injured her back whilst moving a very heavy potted palm plant in the Council’s foyer.  She reported the incident to the Council’s general manager.  The Council has not disputed that the incident occurred or that Ms Moore injured her back.  However, it has disputed the nature and extent of the injury.

1. Ms Moore continued to perform her clerical duties with the Council but did not seek medical treatment for her back until she saw her general practitioner, Dr Arnold, on 12 November 2004.  She completed a claim form on 28 January 2005 and liability was initially accepted.  Dr Arnold referred her to Professor Ghabrial, who first saw her on 15 April 2005.  On 28 June 2005, Ms Moore underwent an L5/S1 laminectomy at the hands of Professor Ghabrial.  She resumed duties with the Council in October 2005.  However, her back and leg symptoms worsened during 2006.  On 15 May 2007, she underwent a L5/S1 decompression and a lower lumbar fusion.  The Council’s workers’ compensation insurer, StateCover Mutual Limited (‘StateCover’) met the cost of both operations. 

1. On 6 September 2007, Ms Moore’s solicitors claimed work injury damages from the Council.  StateCover denied liability in a section 74 notice dated 7 December 2007.  Among other things, the notice disputed whether Ms Moore suffered from at least a 15 per cent whole person impairment.

1. At some stage,…