Peter J Davis (Newcastle) Pty Ltd v McLeod

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122
APPELLANT:			Peter J Davis (Newcastle) Pty Ltd
RESPONDENT:			Wayne Anthony McLeod
INSURER:			GIO General Limited
FILE NUMBER:			A1-7629/08
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:			26 May 2009
DATE OF APPEAL DECISION:			1 October 2009
SUBJECT MATTER OF DECISION:			Leave to appeal – application of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:			Acting Deputy President Michael Snell
HEARING:			On the papers
REPRESENTATION:			Appellant:	Rankin Nathan
Respondent:	Bale Boshev
ORDERS MADE ON APPEAL:			Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 22 June 2009 Peter J Davis (Newcastle) Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 May 2009.

1. The Respondent to the Appeal is Wayne Anthony McLeod (‘the Respondent Worker’).

1. The proceedings relate to an injury to the left leg sustained by the Respondent Worker on 15 December 2005, when he fell whilst working as a bricklayer with the Appellant Employer. He had about four months off work, resumed, ultimately got back to full hours, but ceased in November 2006. He has not worked since that time.

1. The Respondent Worker was examined at his solicitors’ request by Professor Ghabriel on 31 July 2006. That doctor noted ongoing complaints in the left knee and ankle, considered maximum medical improvement had been achieved, and assessed whole person impairment at 9%. The Respondent Worker made a claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) on 25 September 2006. The Appellant Employer met this claim. The parties executed an Application for Registration of Agreement Under section 66A dated 8 December 2006. That document provided for payment of a sum of $11,250.00 pursuant to section 66. There was no issue between the parties, at the arbitration hearing in the current proceedings, that this sum was other than consistent with the assessed impairment of 9%.

1. The Respondent Worker was reassessed by Professor Ghabriel on 30 April 2008. He reported the left knee and ankle complaints remained as they had been on his earlier assessment. On this occasion there were also complaints of left hip pain. Professor Ghabrial maintained his assessment of 9% impairment in respect of the left knee and ankle complaints. He assessed an additional 3% impairment in respect of the left hip symptoms. The Appellant Employer did not accept this claim voluntarily, and relied on a report of Dr Bets dated 25 September 2008 that assessed 8% impairment resulting from the injury.

1. An Application to Resolve a Dispute was registered on 25 September 2008, claiming pursuant to section 66 for a “Further 3%” impairment, together with $25,000.00 pursuant to section 67 in respect of pain…