Tramontini v R & K Davies Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tramontini v R & K Davies Pty Ltd [2010] NSWWCCPD 30
APPELLANT:		Dante Tramontini
RESPONDENT:		R & K Davies Pty Ltd
INSURER:		GIO Workers Compensation (NSW) Limited
FILE NUMBER:		A1-5194/09
ARBITRATOR:	Mr M Oldfield
DATE OF ARBITRATOR’S DECISION:		17 November 2009
DATE OF APPEAL DECISION:		25 March 2010
SUBJECT MATTER OF DECISION:		Section 4 of the Workers Compensation Act 1987; causation; weight of evidence
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		Owen Hodge Lawyers
Respondent:		Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:		Paragraphs (1), (3) and (4) of the Certificate of Determination dated 17 November 2009 are confirmed.
Paragraph (2) of the Certificate of Determination dated 17 November 2009 is revoked and the following order is made in its place:
“2.      That the dispute concerning further whole person impairment with respect to the applicant’s lumbar spine and right upper extremity since the issue of Dr David Maxwell’s Medical Assessment Certificate dated 4 November 2005 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The date of injury is 7 June 2002 and the assessment is to be undertaken under the whole person impairment regime.”
No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

1. Dante Tramontini (‘the worker’), who is 62 years of age, was born in Argentina and arrived in Australia in 1982. Since his arrival in Australia, he has worked as a motor vehicle panel beater. He was employed in that capacity by R & K Davies Pty Ltd (‘the employer’) in 1993 and remained in that employ until 2002.

1. In 2002 the worker received injury in the course of his employment when, whilst carrying a car seat, he tripped on the edge of a raised rim and fell to the ground. Whilst the evidence is scant, it seems that the worker has not resumed duties since the time of that injury and has been paid weekly compensation benefits by his employer to date. It is the worker’s allegation that he injured his neck, right shoulder and back in the subject fall.

1. A dispute arose between the parties concerning the worker’s entitlement or otherwise to lump sum compensation. Proceedings were commenced in the Commission on behalf of the worker being matter no. 8470 of 2005 in which, it seems, a claim was made with respect to whole person impairment (‘WPI’). The evidence does not reveal the precise sequence of events however it is clear that the claim, which apparently specified the right shoulder, cervical spine and lumbar spine as being the relevant body parts or systems requiring assessment, was referred for assessment to Dr David Maxwell, an Approved Medical Specialist (‘AMS’). That assessment was conducted in November 2005 and a Medical Assessment Certificate (‘MAC’) was issued by Dr Maxwell on 4 November 2005. That certificate was accompanied by a lengthy report detailing the information that had been made available to the AMS, relevant…