WorkCover New South Wales v Evans

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: WorkCover New South Wales v Evans (2009) 7 DDCR 231
CITATION:		WorkCover New South Wales v Evans  [2009] NSWWCCPD 95
APPELLANT:		WorkCover New South Wales
RESPONDENT:		Craig Anthony Evans
INSURER:		WorkCover New South Wales
FILE NUMBER:		A1-9527/08
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		9 March 2009
DATE OF APPEAL DECISION:		11 August 2009
SUBJECT MATTER OF DECISION:		Review of weekly payment pursuant to section 55 of the Workers Compensation Act 1987 – change in financial circumstances; issue estoppel and referral of lump sum claims to Approved Medical Specialist – application of Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192 where causation decided by Arbitrator in determining claims other than lump sum claims.
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:	Taylor & Scott
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 9 March 2009 is varied, by revoking paragraph two, and substituting in its place: “2. The following is remitted to the Registrar for referral to an AMS for assessment of the degree of permanent loss: -     permanent loss of efficient use of the right leg at or above the knee resulting from the date of injury of 5 October 2001.”
The balance of the decision dated 9 March 2009 is confirmed.
The Appellant is to pay the Respondent’s costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 8 April 2009 WorkCover New South Wales (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 March 2009.

1. The Respondent to the Appeal is Craig Anthony Evans (‘the Respondent’).

1. The Respondent, who is now 34 years of age, commenced working with Jeremy Adams trading as JWA Furniture Restorations on about 1 January 2000, as an apprentice cabinet maker. He suffered injuries in the course of such employment on 26 September 2001 and 5 October 2001.

1. His statement dated 22 May 2008 indicates that in the first of these incidents a gust of wind caught a sheet of material he was carrying, forcing him against a wall. He said he felt pain in his lower and mid back, right shoulder and neck. He did not actually take time off after this incident, although said he carried out lighter work and reported the injury. On 5 October 2001 he was assisting in carrying a large television cabinet into a residence, when he tripped and fell. He said he felt pain in the whole of his spine from the lower back to the neck, together with the right leg and right shoulder. He ceased working from 12 October 2001.

1. His employer was uninsured, and his claim for compensation was met by the Appellant. The Appellant declined liability for weekly compensation from 6 August 2002. The Respondent instituted proceedings (matter number 4626-02), which were determined by an…