Ozcan v Macarthur Disability Services Limited

[2020] NSWWCCPD 21

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

CITATION:

Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21

APPELLANT:

Nuray Ozcan

RESPONDENT:

Macarthur Disability Services Limited

INSURER:

AAI limited t/as GIO ­– Agent for the Workers Compensation Nominal Insurer

FILE NUMBER:

A1-691/19

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

23 September 2019

DATE OF APPEAL DECISION:

21 April 2020

SUBJECT MATTER OF DECISION:

Aggregation of impairment – application of common law principles, whether the impairment “results from” the injury – Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52, Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Nicol v Macquarie University [2018] NSWSC 530, Johnson v NSW Workers Compensation Commission [2019] NSWSC 347, Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396, considered; State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003, Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 considered and applied;

application of s 322 of the Workplace Injury Management and Workers Compensation Act 1998 – Department ofJuvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Brydens Lawyers Pty Ltd

Respondent:

Mr S Grant, counsel

Hicksons Lawyers

ORDERS MADE ON APPEAL:

1.     Paragraph one of the Certificate of Determination dated 23 September 2019 is revoked and the following order is made in its place:

(a) The respondent is to pay the applicant $17,902.50 in respect of 12% whole person impairment of the lumbar spine and the thoracic spine (including a 5% uplift) pursuant to s 66 of the Workers Compensation Act 1987.

2.     The Certificate of Determination is otherwise confirmed.

INTRODUCTION AND BACKGROUND

1. Ms Nuray Ozcan (the appellant) suffered a number of injuries in the course of her employment with Macarthur Disability Services Limited (the respondent). The injuries involved the lumbar spine, the thoracic spine, cervical spine, right shoulder and consequential conditions including the upper digestive system. The appellant also suffered a further cervical spine injury on 28 January 2013, which occurred at home and consequently was not the subject of these proceedings.

2. The appellant brought proceedings in the Commission for lump sum entitlements pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) together with a claim for weekly payments and treatment expenses pursuant to s 60 of the 1987 Act. By consent, the lump sum claim was referred by the Arbitrator, Mr C Burge, to an approved medical specialist (AMS) in the following terms:

   “Date of Injury 1:               14 November 2011

   Body part/s referred:        Lumbar Spine, Thoracic Spine, Cervical Spine, Right Upper Extremity (shoulder), Upper Digestive Tract

   Method of assessment:     Whole Person Impairment

   Date of Injury 2:                3 May 2012

   Body part/s referred:        Lumbar Spine, Thoracic Spine, Upper Digestive Tract

   Method of assessment:     Whole Person Impairment

   Date of Injury 3:                26 September 2012

   Body part/s referred:        Lumbar…