Hamilton v D & LE Paddon Pty Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hamilton v D & LE Paddon Pty Limited [2008] NSWWCCPD 138
APPELLANT:		Peter Hamilton
RESPONDENT:		D & LE Paddon Pty Limited
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC A1004091-08
DATE OF ARBITRATOR’S DECISION:		12 August 2008
DATE OF APPEAL DECISION:		20 November 2008
SUBJECT MATTER OF DECISION:		Partial incapacity, and sections 38 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Burke Love McCartney Young
Respondent:		Ellison Tillyard Callanan
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 12 August 2008 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.Mr Hamilton is 67 years of age.  He was injured on 19 October 2007 when he was ploughing a paddock using a tractor at a property owned by D & LE Paddon Pty Ltd (‘Paddon’).  As part of his duties, when he came across a rock in the paddock he was ploughing, he was required to get off his tractor, extract the rock from its position and move it to a nearby hill where the rocks would be collected, pending subsequent removal.

2.As Mr Hamilton bent over to remove a rock he experienced severe pain in his lower back, which radiated down his right leg to his ankle.  He also had numbness in the toes of his right foot.  He was unable to continue with his duties and went home.

3.Prior to the incident on 19 October 2007, Mr Hamilton had never previously experienced pain like that in his back and legs. 

4.The next day Mr Hamilton attended his general practitioner, Dr Snedden, and was referred for x-rays and a CT scan.  He subsequently attended a physiotherapist and a chiropractor for treatment as well as undertaking swimming, walking for exercise and stretching. 

5.In early December 2007 Mr Hamilton attempted to return to work on light duties.  The duties he was given involved tractor work and also cutting vines.  He was able to drive the tractor without incident but found that cutting vines required him to bend and that action severely aggravated his back injury.  As a consequence he was unable to complete his duties and lasted no longer than a few hours. 

6.Mr Hamilton has not returned to work again since he attempted light work in December 2007.  His employment was terminated in early January 2008.

7.Physiotherapy treatment ceased in March 2008 and he has continued on his own exercise program.  He complains of intermittent back pain, which increases in severity with sitting for prolonged periods of time when driving.  He sometimes experiences pain radiating down his right leg.

8.Mr Hamilton’s back is often painful at night and it causes him some discomfort when sleeping.  He has occasional parasthesia in the right foot, which also occurs mainly at night.  He avoids activities that involve bending, twisting, or lifting, as these actions cause him severe…