Smith v Walgett Shire Council

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Smith v Walgett Shire Council [2009] NSWWCCPD 45
APPELLANT:		Matthew James Smith
RESPONDENT:		Walgett Shire Council
INSURER:		StateCover Mutual Limited
FILE NUMBER:		A2-7045/08
DATE OF ARBITRATOR’S DECISION:		17 November 2008
DATE OF APPEAL DECISION:		22 April 2009
SUBJECT MATTER OF DECISION:		Section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory order
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		McCabe Partners Lawyers
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		1.     Leave to appeal the Arbitrator’s determination of 17 November 2008 is refused.
2.     There is no order as to the costs of this appeal

BACKGROUND TO THE APPEAL

1. On 22 December 2008 Matthew James Smith (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 November 2008.

1. The Respondent to the Appeal is Walgett Shire Council (‘the Respondent’).

1. The Appellant who is 33 years of age, commenced employment with the Respondent in early 2005 as a semi skilled labourer working fulltime. There is no dispute between the parties that the Appellant has received injury to his lower back on three separate occasions in the course of his employment. Those injuries occurred on 17 September 2006, 15 December 2006 and 22 January 2007. It seems that the Appellant had a short absence from work following the first injury after which symptoms experienced in his back and right leg settled. The second injury received by the Appellant was reported on the day of its occurrence however symptoms experienced in his lower back and buttocks on that occasion resolved and he was able to resume work the following day. The third injury was sustained whilst driving a tractor over rough terrain at which time the Appellant felt intense pain in his lower back with pins and needles radiating to the right leg. The Appellant has not worked since the occurrence of that injury and has been in receipt of weekly compensation benefits to date. The Appellant was referred to Dr Peter Bentivoglio, neurosurgeon, and underwent surgical treatment being discectomy on 4 April 2007.

1. A claim in respect of lump sum compensation pursuant to section 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was lodged with the Employer and its insurer on the Appellant’s behalf by his solicitor on 22 May 2008. Included among the documents forwarded in support of that claim were medical reports from Dr Bentivoglio. Agreement with respect to that claim could not be reached between the parties and accordingly an Application to Resolve a Dispute (‘ARD’) was filed with the Commission on behalf of the Appellant on 8 September 2008. At Part 4 of the ARD the under mentioned “injury description” appeared:

“Injury to the back with pain radiating down right and left legs and effected sexual relationship with de facto wife. The Applicant also suffers reduced enjoyment of daily living…