McCabe Terrill Lawyers v A

[2009] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		McCabe Terrill Lawyers v Lavery [2009] NSWWCCPD 46
APPELLANT:		McCabe Terrill Lawyers
RESPONDENT:		Priscilla Coline Marie Lavery
INSURER:		Gallagher Bassett Services Workers Compensation NSW Pty Ltd
FILE NUMBER:		A1-8022/08
DATE OF ARBITRATOR’S DECISION:		13 January 2009
DATE OF APPEAL DECISION:		30 April 2009
SUBJECT MATTER OF DECISION:		Incapacity; evidence required; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore Lawyers
Respondent:		In person
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 13 January 2009 is revoked and the matter is remitted to a different Arbitrator to be determined afresh.
Each party is to pay her or its costs of the appeal.

BACKGROUND

1. Ms Lavery commenced employment as a solicitor with McCabes Lawyers (‘the appellant’), who have been wrongly sued as McCabe Terrill Lawyers, on 24 May 1999.  The correct legal entity of the appellant is dealt with under “Other Matters” at paragraph [90] below.  Her duties required her to use a dictaphone and desktop computer to assist in legal matters involving insurance and commercial law and, at times, to attend the Compensation Court of NSW at 88 Goulburn Street, Sydney.  Her hours were Monday to Friday, 8.30am to 5.30pm, but she worked extensive overtime.

1. On or about 16 June 1999, Ms Lavery became aware of stiffness in her neck and right shoulder and pain radiating into her right arm.  On 18 June 1999, a door struck her right arm as she entered a lift at the Compensation Court.  Her symptoms were reported to the office manager (Ms Brisbane) on or about 23 June 1999, but she remained at work performing her normal duties.

1. On 5 July 1999, Ms Lavery submitted an “Employee’s Compensation Claim” (‘the claim form’), though she remained at work with no loss of time.  Her employment was terminated on 9 July 1999.

1. Her claim was accepted and compensation payments commenced.

1. In 2004, Ms Lavery sought lump sum compensation in respect of a permanent impairment of her neck and permanent loss of efficient use of her right arm at or above the elbow.  That claim was referred to an Approved Medical Specialist (‘AMS’) who assessed her on 3 February 2005 and issued a Medical Assessment Certificate (‘MAC’) on 23 February 2005 assessing her to have nil permanent impairment of her neck and a 10% permanent loss of efficient use of her right arm at or above the elbow as a result of her injury with the appellant.  As a result of the MAC, the appellant has paid lump sum compensation in the sum of $8,000.00 in respect of the 10% loss of use determined by the AMS pursuant to a Certificate of Determination dated 30 March 2005. 

1. Gallagher Bassett Services Workers Compensation NSW Pty Ltd (‘Gallagher Bassett’), the appellant’s workers compensation insurer, denied liability for weekly compensation and medical expenses in a notice dated 15 September…