Plateau Tree Services Pty Ltd v Shannon

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Plateau Tree Services Pty Ltd v Shannon [2011] NSWWCCPD 75
APPELLANT:		Plateau Tree Services Pty Ltd
RESPONDENT:		Ross Shannon
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6398/11
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:		15 September 2011
DATE OF APPEAL DECISION:		22 December 2011
SUBJECT MATTER OF DECISION:		Incapacity; application to rely on fresh evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; reasons for preferring one medical specialist over another; alleged failure to consider all evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Kaden Boriss
Respondent:	Walker Legal
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 15 September 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

1. The respondent worker, Ross Shannon, worked for the appellant employer, Plateau Tree Services Pty Ltd, as a truck driver/arborist. His duties required him to not only drive trucks but also manipulate various heavy pieces of equipment involved in the tree lopping industry (such as stump grinders), climb trees, lift and carry branches, and to walk over uneven ground. His work was clearly heavy. He injured his right knee while operating a friction drum (which is similar to a winch) in the course of his employment on 28 January 2010. Investigations revealed a tear of the right medial meniscus. The appellant has not disputed the circumstances of the incident or the nature of the pathology that has resulted from it.

2. Mr Shannon underwent surgery on his right knee on 24 March 2010 at the hands of Dr Dickison. The operation revealed a large flap tear of the posterior one third of the medial meniscus. Mr Shannon was off work for about four or five weeks. After receiving physiotherapy, he returned to work on suitable duties in April 2010, though he said there were really no suitable duties with the appellant. His knee was not as strong as it had been and he still had a burning at the site of the surgery. He had to be more careful, and was worried about twisting it again and doing more damage.

3. Mr Shannon said that he wanted to go off workers compensation and start back at a normal job and, after a period on suitable duties, he asked his treating general practitioner, Dr Artinian, if he could write down that he could go back to work normally. As a result of that request, Dr Artinian certified Mr Shannon fit for work on 25 October 2010. Also on 25 October 2010, Mr Shannon reluctantly decided to leave the appellant. He found a job that only required him to drive a truck and use a “palfinger”, a crane attached to the back of a truck, to load and unload bricks. His new job was a lot easier than his pre-injury work with the appellant. He…