Warwar v Speedy Courier (Australia) Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92
APPELLANT:		Hayssam Warwar
RESPONDENT:		Speedy Courier (Australia) Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-1448/10
ARBITRATOR:	Mr R O’Moore
DATE OF ARBITRATOR’S DECISION:		28 April 2010
DATE OF APPEAL DECISION:		25 August 2010
SUBJECT MATTER OF DECISION:		Lump sum compensation; two injuries; circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation for pain and suffering in section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998; consideration of the principles in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; construction of complying agreement under section 66A of the Workers Compensation Act 1987; principle of objectivity; relevance of surrounding circumstances; application of principles in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltdand others [2004] HCA 52; 219 CLR 165
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Michael E Bradstreet
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 28 April 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

1. This appeal raises the question of whether a worker can combine impairments from two separate incidents to reach the 10 per cent threshold to recover compensation for pain and suffering in section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND

1. The appellant worker, Mr Warwar, started work with the respondent employer, Speedy Courier (Australia) Pty Ltd, as a trolley collector at a Bankstown shopping centre in early 2007. On 22 February 2007, he injured his lower back whilst closing a heavy door on a trailer. He experienced immediate severe low back pain and was taken to Bankstown Hospital. He was released after a short period of observation. Mr Warwar has not returned to work since his injury.

2. As part of his treatment for his back injury, Mr Warwar attended on an osteopath at Punchbowl. Whilst driving home after having received osteopathic treatment for his back on 18 August 2008, Mr Warwar was involved in a motor vehicle accident in which he injured his neck and experienced increased symptoms in his lower back.

3. On 19 March 2009, Dr Peter Giblin, orthopaedic surgeon, assessed Mr Warwar to have a five per cent whole person impairment (after allowing a 1/10^th  deduction for a pre-existing condition) as a result of the injury to his lumbar spine on 22 February 2007, and a six per cent whole person impairment as a result of the injury to his cervical spine and lumbar spine on 18 August 2008 (wrongly referred to as 18 August 2007 in the report). The assessment in respect of the August 2008 injury was made up of a five per cent whole person impairment as a…