Ozblue Constructions Pty Ltd v Lang

[2009] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ozblue Constructions Pty Ltd v Lang [2009] NSWWCCPD 3
APPELLANT:		Ozblue Constructions Pty Ltd
RESPONDENT:		Jayde Lang
INSURER:		CGU Workers Comp (NSW) Limited
FILE NUMBER:		A1-5947/08
DATE OF ARBITRATOR’S DECISION:		2 October 2008
DATE OF APPEAL DECISION:		12 January 2009
SUBJECT MATTER OF DECISION:		Interlocutory orders; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore
Respondent:		Brazel Moore Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s determination of 2 October 2008 is refused.
The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

1. This appeal concerns the nature of an interlocutory order and whether an order made by an arbitrator remitting a matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of the worker’s whole person impairment resulting from his undisputed injuries was such an order.

BACKGROUND

1. On 26 July 2006, Mr Lang sustained multiple injuries when he fell onto concrete from a height of about 2.5 metres whilst working for Ozblue Constructions Pty Ltd (‘Ozblue’).  Oz accepted liability for Mr Lang’s claim for weekly compensation and it is not disputed that he injured his cervical spine (neck), thoracic spine, lumbar spine, left elbow, and left leg in the fall. 

1. Mr Lang was taken to hospital by ambulance where his left leg was x-rayed and he was discharged home on the same day.  His pain continued and he saw his local doctor a few days later.  In September 2007, x-rays were taken of his jaw, facial bones, cervical spine, thoracic spine, lumbar spine, pelvis, left elbow and left foot.  The x-rays revealed no fractures, but degenerative changes were noted in his thoracic spine and lumbar spine.

1. On 29 January 2007, Professor Ghabrial, orthopaedic and spinal surgeon, examined Mr Lang and recorded that he complained of tenderness in his neck, left elbow, back (thoracic spine and lumbar spine) and left leg.  He diagnosed his injuries to be:

“1.      Severe soft tissue injury to the neck.

2.        Soft tissue injuries to his back.

3.        Post traumatic medical epicondylitis.

4.Haematoma of the left thigh with the subsequent development of lateral cutaneous nerve [damage] of the thigh [causing] dysaesthesia and post traumatic chronic trochanteric bursitis.”

1. In accordance with the WorkCover Guides for the Evaluation of Permanent Impairment (‘the WorkCover Guides’) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition (‘AMA5’), Professor Ghabrial assessed Mr Lang to have an 18% whole person impairment made up as follows:

(a)5% whole person impairment regarding the neck, according to DRE Cervical Category II;

(b)7% whole person impairment regarding the lumbar spine, according to DRE Lumbar Category II;

(c)0% whole person impairment regarding the thoracic spine;

(d)3% whole person impairment regarding left leg trochanteric bursitis, according to Table 17-33;

(e)3% whole person impairment regarding left leg dysaesthesia of the…