Harrison and Siepen v Craig

[2014] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48
APPELLANT:	Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen
RESPONDENT:	Toyah Craig
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-2957/13
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	1 April 2014
DATE OF APPEAL DECISION:	29 July 2014
SUBJECT MATTER OF DECISION:	Drawing of inferences on injury in the absence of expert medical evidence; judicial obligation to make findings of fact on proved evidence; circumstances in which the Commission’s members may rely on general knowledge acquired in their capacity as members of a specialist tribunal, interlocutory decisions
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	LHD Lawyers
ORDERS MADE ON APPEAL:	1.   Leave to appeal is granted. 2.   The Arbitrator’s orders made in the Certificate of Determination dated 1 April 2014 are revoked and the following orders are made in their place: “1.  The name of the respondents is amended to ‘Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen’. 2.    An award for the respondents. 3.    No order as to costs of the arbitration.” 3.  Each party to pay her or its own costs of the appeal.
3.

INTRODUCTION

1. This appeal concerns the circumstances in which an Arbitrator may, in the absence of expert medical evidence, draw an inference from the available evidence to support a finding of injury.

BACKGROUND

1. The respondent worker, Toyah Craig, was employed by Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen (the appellants) as an office assistant.

2. On 8 June 2004, whilst descending a staircase at her employer’s premises, Ms Craig slipped and fell, landing on her tailbone and left leg. She also injured her right arm.               Mr Craig was unfit for work for two days.                

3. In the early part of 2006, Ms Craig trained to become an assistant in nursing (AIN). On 20 November 2006, she obtained employment as an AIN at the Storm Retirement Village in Taree. After working only three shifts she developed severe pain in her lower back and shooting pain in her left leg and as a result ceased work, never returning again to that type of employment.

4. On 20 October 2009, through her solicitors, LHD Lawyers, Ms Craig made a claim for lump sum compensation in the sum of $6,250 pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) representing five per cent whole person impairment with respect to the lumbosacral spine. She relied on reports of Dr Alan Hopcroft, general surgeon, dated 10 March 2008, 26 May 2008, 15 September 2008 and 10 June 2009 and a report of Dr Hyde Page, orthopaedic surgeon, dated 26 November 2008.

5. By letter dated 3 August 2007 (which date appears to be an error), the appellants’ insurer, Employers Mutual NSW Ltd (Employers Mutual), issued a notice under s…