Hogan v Mercy Care Centre Young

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hogan v Mercy Care Centre Young [2008] NSWWCCPD 119
APPELLANT:		Jane Maree Hogan
RESPONDENT:		Mercy Care Centre Young
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		WCC009769/07
DATE OF ARBITRATOR’S DECISION:		10 July 2008
DATE OF APPEAL DECISION:		20 October 2008
SUBJECT MATTER OF DECISION:		Leave to appeal; costs and disbursements; sections 60, 66 and 67 of the Workers Compensation Act 1987; sections 75 and 341(4) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Gary Byron
HEARING:		Determined on the papers
REPRESENTATION:		Appellant:		McCabe Partners Lawyers
Respondent:		Sparke Helmore
ORDERS MADE ON APPEAL:		Leave to appeal the decision of the Arbitrator dated 10 July 2008 is refused.
No order is made as to the costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 31 July 2008 Jane Maree Hogan (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 July 2008.

1. The Respondent to the Appeal is Mercy Care Centre Young (‘the Centre/the Respondent Employer’).

1. The Insurer is Employers Mutual Indemnity (Workers Compensation) Limited.

1. Ms Hogan initially lodged an ‘Application to Resolve a Dispute’ in the Commission on 19 December 2007 for injuries sustained on 12 October 1987; for injuries sustained on 18 September 1990; for injuries sustained as a result of the nature and conditions of her employment with the Centre from 1 July 1987 to 24 February 2006, and “as a result of the disease provisions of the Workers Compensation Act 1987 [‘the 1987 Act’] up until the 24.02.2006.”

1. The injury is described in her Application as:

“Back pain with pain radiating down the right and left legs and impairment to the sexual organs, neck with pain radiating down to the ring finger on the left hand, pain in the cervical and left upper shoulder girdle.”

1. Details of frank injuries on or about 12 October 1987 and on 18 September 1990 are set out in the Application, as are the details of the nature and conditions claim and the claim pursuant to sections 15 and 16 of the 1987 Act.  Those details are as follows:

“Frank Injuries:

On or about the 12.10.1987, the Applicant was working for the respondent and was trying to help a patient out of a wheel chair, when the patient fell with the patient’s arms up around the Applicant’s neck, pulling her in a downwards motion.  As a result, the Applicant suffered back pain.

Frank Injury:

On the 18.09.1990, the Applicant was working for the Respondent and was pulling a pill trolley whilst giving out medication and as she pulled the trolley back, the Applicant felt pain in her lower back with the pain down both legs.

Nature and Conditions:                   

Whilst employed by the Respondent from 01.01.2002, the Applicant performed work involving repetitive bending and lifting of heavy weights, the nature and conditions of…