Rainbow Group Pty Limited v Carrabs

[2019] NSWWCCPD 58

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Rainbow Group Pty Limited v Carrabs [2019] NSWWCCPD 58
APPELLANT:	Rainbow Group Pty Limited
RESPONDENT:	Richard Carrabs
INSURER:	AAI Ltd t/as GIO – Agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-1812/19
ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	31 May 2019
DATE OF APPEAL DECISION:	19 November 2019
SUBJECT MATTER OF DECISION:	Whether certain findings of fact made by the Senior Arbitrator were available on the evidence; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; regarding contents of medical notes considered
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr Robert Mitas, solicitor
Hicksons Lawyers
Respondent:
Mr J Beran, of Counsel
Care Compensation Lawyers
ORDERS MADE ON APPEAL:	1.    The Senior Arbitrator’s Certificate of Determination dated 31 May 2019 is confirmed.

INTRODUCTION

1. The respondent worker in this case, Mr Richard Carrabs, suffered an accepted injury, resulting in him requiring surgery to his lumbar spine. This case concerns whether Mr Carrabs’ post-operative use of crutches caused him to develop a consequential injury to his right shoulder. An assessment of this involves close consideration of Mr Carrabs’ statements, the medical evidence and relevant case law regarding consequential conditions.

BACKGROUND

1. Mr Carrabs was employed by the appellant, Rainbow Group Pty Limited, as a general labourer from July 2011. It is agreed that on 25 May 2012 in the course of his employment he sustained an injury to his lumbar spine when a bucket on an excavator struck him in the back. In earlier proceedings before the Commission (Matter Number 4080/13) the appellant agreed, inter alia, to pay the reasonable costs of lumbar surgery, comprised of a decompression and discectomy at L3/4 and L4/5[1]. This surgery was performed by Dr Diwan on 10 February 2015.

   [1] ARD, p 36.

2. Mr Carrabs in the present proceedings alleges that because of the lumbar surgery he used crutches and as a consequence of this use he sustained a condition in his right shoulder, being supraspinatus tendinopathy.

3. On 4 April 2017 the appellant’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (the insurer), declined liability for the claim for permanent impairment, declining any injury had been sustained to the right shoulder. The insurer relied on sections 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). The insurer at that time made an offer of settlement for permanent impairment suffered by Mr Carrabs to his lumbar spine and scarring as assessed by Dr Carney in a report dated 1 March 2017.[2]

   [2] ARD, p 24.

4. On 13 June 2017 Mr Carrabs sought for the insurer to review their decision on the basis that his right shoulder had not been assessed by their doctor and referring to clinical notes indicating the right shoulder condition arose as a result of the use of crutches after the lumbar surgery.[3] The clinical notes of Dr Kuzmanovski were attached to that review application.

   [3] ARD,…