John Baker Contracting Pty Ltd v Rowe - [2008] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION

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

CITATION:John Baker Contracting Pty Ltd v Rowe [2008] NSWWCCPD 20
APPELLANT:  John Baker Contracting Pty Ltd
RESPONDENT:  Danny John Rowe
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC8955-06
DATE OF ARBITRATOR’S DECISION:          26 September 2007
DATE OF APPEAL DECISION:  18 February 2008
SUBJECT MATTER OF DECISION: Assessment of claim for additional lump sum compensation; Schedule 6 Part 18C of the Workers Compensation Act 1987; effect of Medical Assessment Certificates; correct method of calculation of further loss/impairment
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Lyons Barnett Kennedy
Respondent:   McCabe Partners

ORDERS MADE ON APPEAL: Paragraphs 1(a), (b) and (c) and paragraph two of the Arbitrator’s determination of 26 September 2007 are revoked and the following orders made:

“1.The Respondent Employer is to pay the Applicant Worker the sum of $11,250.00 as lump sum compensation under section 66 of the Workers Compensation Act 1987 (as saved by Schedule 6 Part 18C of the Workers Compensation Act 1987) in respect of an additional 15% permanent loss of use of the Applicant’s left leg at or above the knee as a result of his injury on 13 January 2001.
1A.The assessment of the Applicant Worker’s claim for additional loss of efficient use of sexual organs is remitted to the Registrar for referral to Dr Breslin, Approved Medical Specialist.”
Paragraphs three, four and five of the Arbitrator’s determination of 26 September 2007 are confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

This appeal concerns the interpretation of certain Medical Assessment Certificates (‘MACs’) under section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and under Schedule 6 Part 18C of the Workers Compensation Act 1987 (‘the 1987 Act’) where the worker made a claim for additional lump sum compensation due to a deterioration in his condition resulting from his proven work injury.

The matter has been the subject of a previous claim between the same parties in the former Compensation Court of NSW. Campbell ACJ decided that claim on 14 May 2003 when his Honour found that Mr Rowe had sustained injury to his back on 13 January 2001 (Rowe v John Baker Contracting Pty Ltd, matter No 3056 of 2002). Though the date of injury is recorded as 7 February 2001 in several of the documents referred to in this decision, nothing turns on that error. In the Compensation Court Mr Rowe (‘the Respondent Worker’) claimed lump sum compensation as a result of a disease injury contracted by a gradual process in the course of his employment with John Baker Contracting Pty Ltd (‘the Appellant Employer’). His claim was in respect of a permanent impairment of his back, loss of efficient use of his legs, loss of efficient use of sexual organs and for pain and suffering as a result of those losses.

His Honour found that as a result…

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: [2008] NSWWCCPD 20
Decision Date: 18 February 2008

CaseChat Overview and Summary

This appeal concerns the assessment of additional lump sum compensation for a worker's deterioration in condition following a work injury. The appellant employer challenges the arbitrator's assessment of additional impairment and loss of use, arguing that the assessment is contrary to the medical assessment certificates. The respondent worker claims that the correct approach to assessing additional impairment is to compare the current assessment to the previous assessment, and the difference represents the additional impairment. The court found that the arbitrator erred in his assessment of additional impairment to the back and left leg, and the matter was remitted for reassessment. The court also found that the assessment of additional loss of efficient use of sexual organs was flawed and required clarification from the approved medical specialist. The appeal was allowed in part, and the matter was remitted for reassessment of additional impairment and loss of efficient use of sexual organs. The orders of the arbitrator were varied accordingly.

Orders