Superior Formwork Pty Ltd v Livaja

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158
APPELLANT:			Superior Formwork Pty Ltd
RESPONDENT:			Marko Livaja
INSURER:			Employers Mutual NSW Limited
FILE NUMBER:			A1-2958/09
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:			20 August 2009
DATE OF APPEAL HEARING:		10 December 2009
DATE OF APPEAL DECISION:			17 December 2009
SUBJECT MATTER OF DECISION:			Status of a Medical Assessment Certificate in subsequent proceedings; section 326 of the Workplace Injury Management and Workers Compensation Act 1998; failure to give reasons; failure to consider the employer’s expert evidence; failure to determine worker’s ability to earn; section 40(2)(b) Workers Compensation Act 1987; whether the effect of the work injury had ceased
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Wardell, solicitor, Edwards Michael Lawyers
Respondent:	Mr Stockley, instructed by NSW Compensation Lawyers
ORDERS MADE ON APPEAL:			For the reasons given in this decision, the Arbitrator’s determination of 20 August 2009 is confirmed.  The matter is remitted to the Registrar for determination of any outstanding issues.
The appellant employer is to pay the respondent worker’s costs of the appeal.  Those costs are assessed at $2,200.00 plus GST.

INTRODUCTION

1. This appeal concerns three main issues:

(a)the status in the current proceedings of a Medical Assessment Certificate (‘MAC’) obtained in previous proceedings between the same parties when  those proceedings were discontinued without any determination by the Commission;

(b)whether, by failing to refer to any of the employer’s medical or other expert evidence, the Arbitrator failed to give reasons, and

(c)whether an Arbitrator is entitled to find that the effect of an injury has ceased.

BACKGROUND

1. The worker, Mr Livaja, injured his neck, back, right shoulder and right elbow in the course of his employment as a formwork carpenter with Superior Formwork Pty Ltd (‘Superior Formwork’) when he fell whilst carrying a five metre long ‘bearer’ or ‘header’ on 7 March 2005.  His claim was initially accepted and voluntary compensation paid until 14 November 2005.

1. In proceedings registered in the Commission on 26 October 2006 in matter number 16951-06 (‘the first proceedings’), Mr Livaja claimed weekly compensation from November 2005 to date and continuing, and lump sum compensation in respect of an alleged whole person impairment in respect of his cervical spine and lumbar spine as a result of injury to his neck and low back on 7 March 2005. 

1. The Commission referred that claim for assessment by an Approved Medical Specialist (‘AMS’).  The AMS, Dr Harrison, issued a MAC on 11 April 2007 in which he assessed Mr Livaja to have nil whole person impairment in respect of both his cervical spine and his lumbar spine.  He made no assessment of the impairment resulting from Mr Livaja’s right shoulder injury, as the referral had not asked him to do so.

1. On 8 May 2007, Mr Livaja appealed Dr Harrison’s assessments to a Medical Appeal Panel (‘the Appeal Panel’) on the grounds that they had been made…