Moore v Greater Taree City Council

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Moore v Greater Taree City Council [2009] NSWWCCPD 17
APPELLANT:		Kay Moore
RESPONDENT:		Greater Taree City Council
INSURER:		Statecover Mutual Limited
FILE NUMBER:		A1-4142/08
DATE OF ARBITRATOR’S DECISION:		7 October 2008
DATE OF APPEAL DECISION:		20 February 2009
SUBJECT MATTER OF DECISION:		Section 352(8) of the Workplace Injury Management & Workers Compensation Act 1998 and Clause 200B of the Workers Compensation Regulation 2003 – preliminary or interim orders of an interlocutory nature.
PRESIDENTIAL MEMBER:		Acting Deputy President Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		Maurice Blackburn Lawyers
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		Leave to appeal is refused.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 4 November 2008 Kay Moore (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 October 2008.

1. The Respondent to the Appeal is Greater Taree Shire Council (‘the Respondent Employer’).

1. The Appellant Worker, who is now fifty-five years of age, was employed by the Respondent Employer in a clerical capacity, as an executive assistant, from 1 May 1989. Her duties included periodically organising and setting up for functions held at the Council Chambers. The Appellant Worker was moving what she described as a “very heavy palm pot plant”, in the course of such a set up on 16 September 2004, when she injured her back. The Appellant Worker may have had a short period off work, this was the subject of some dispute. She continued working with the Respondent Employer. The clinical records of her general practitioner, Dr Arnold, indicate the Appellant Worker consulted him about the back problem on 12 November 2004.

1. Dr Arnold referred the Appellant Worker to Professor Ghabriel, who she first consulted on 15 April 2005. On 28 June 2005 Professor Ghabriel carried out L5/S1 laminectomy on the Appellant Worker. She resumed duties with the Respondent Employer in October 2005, initially part-time. Her statement says leg pain resumed and worsened, and back pain worsened, during 2006. On 15 May 2007 Professor Ghabriel performed left L5/S1 decompression of the nerve roots, and L4/5 posterolateral fusion (according to Professor Ghabriel, some other evidence suggests the fusion involved L4/5 and L5/S1). It appears she subsequently resumed carrying out some duties for the Respondent Employer from home, on a computer.

1. On 6 September 2007 the Appellant Worker made a claim on the Respondent Employer for work injury damages. Statecover Mutual Limited, the insurer of the Respondent Employer (‘the insurer’) in a section 74 Notice dated 7 December 2007, denied liability for this damages claim. This denial was in part on the basis it was not conceded the Appellant Worker suffered from at least 15% whole person impairment (section 151H of the Workers Compensation Act 1987 (‘the 1987 Act’)).

1. On a later date, not readily apparent from the material, the Appellant Worker made a claim for lump…