Legal Bulletin No. 16
This bulletin was issued on 18 October 2019
Issued 18 October 2019
The complete Arbitral and Medical Appeal Panel decisions summarised below are now available on the Commission’s website. The complete appeal decisions and judicial review decisions summarised below are available on AustLII, Jade and LexisNexis.
Supreme Court decision
WORKERS’ COMPENSATION; plaintiff injured at work; claim for compensation for permanent impairment; whether permanent impairment necessarily from work injury; medical assessment certificate issued by approved medical specialist; appeal to appeal panel; determination of causation; ADMINISTRATIVE LAW; review under s 69 of the Supreme Court Act 1970 (NSW); failure to address plaintiff’s argument; whether jurisdictional error; whether error of law on the face of the record; whether constructive failure to exercise jurisdiction by appeal panel; decision of the appeal panel ; Held - vitiated by jurisdictional error and error of law on the face of the record; Held - plaintiff’s appeal from the determination of the approved medical assessor of 26 July 2018 be remitted to the Workers Compensation Commission for determination according to law.
Decision date: 15 October 2019 | Before: Simpson AJ
Disputed claim for proposed cervical surgery pursuant to section 60(5) of the 1987 Act; claim for incurred treatment expenses pursuant to section 60; injury disputed in relation to the cervical spine and right shoulder; Held - worker suffered injury pursuant to section 4(a) of the 1987 Act to the cervical spine and right shoulder in the course of his employment, finding the surgery is reasonably necessary as a result of injury to the cervical spine and order that respondent pay costs of surgery and incurred treatment expenses; Nguyen v Cosmopolitan Homes (NSW) Pty Limited  NSWCA 246; Davis v Council of the City of Wagga Wagga  NSWCA 34 discussed; Diab v NRMA Ltd  NSWWCCPD 72; Murphy v Allity Management Services Pty Ltd  NSWWCCPD 49 applied.
Decision date: 3 October 2019 | Member: Senior Arbitrator Josephine Bamber
1987 Act section 4 (b)(ii); alleged aggravation (etc) of degenerative disease in left hip; section 9A; evidence unsatisfactory that numerous stairs traversed in course of employment causative; evidence unsatisfactory because inconsistent histories of applicant’s cessation of touch football activity; Award for the respondent.
Decision date: 4 October 2019 | Member: Arbitrator Philip Young
Accepted injury to cervical spine and left upper extremity; alleged consequential condition right shoulder (right upper extremity); absence of complaints about right shoulder but reference by an occupational therapist about 3 months after principal injury to right shoulder pain; applicant alleged right shoulder pain since injury of 10 November 2013; respondent referred to absence of complaints; Held - applying Palise v ANZ Banking Group Limited and Mason v Demasi that applicant established onus of proving complaints concerning right shoulder; award for the applicant; matter remitted to an AMS for assessment for whole person impairment including the right shoulder.
Decision date: 4 October 2019 | Member: Arbitrator Philip Young
Section 65A Workers Compensation Act 1987; psychological injury; whether primary or secondary; causation; found that adjustment disorder resulting from physical injury was also materially contributed to by return to work program, constituting primary psychological injury; matter remitted to Registrar for referral to assess WPI, if any, as a result of the primary psychological injury.
Decision date: 4 October 2019 | Member: Arbitrator Paul Sweeney
Application by employer to refer dispute back to Approved Medical Specialist for reconsideration and assessment pursuant to s 327 of the 1998 Act based on fresh surveillance evidence that was taken shortly before and after the medical examination; fresh evidence admitted and dispute referred for further examination and reconsideration by Approved Medical Specialist.
Decision date: 8 October 2019 | Member: Senior Arbitrator Glenn Capel
Psychological injury; whether events complained of were real; Townsend v Commissioner of Police (1992) 25 NSWCCR 9 distinguished; Attorney General's Department v K  NSWWCCPD 76 discussed; Arbitrator satisfied that real events which were perceived as hostile were causative of psychological injury; matter remitted to Registrar for referral to an Approved Medical Specialist to assess degree of further permanent impairment.
Decision date: 8 October 2019 | Member: Arbitrator Rachel Homan
Declaration that recommended spinal surgery reasonably necessary; Degenerative condition aggravated by subject injury loading wood for pizza oven; injury main and substantial contributing factor; aggravation had not ceased; Held – respondent to pay the costs of and associated with the surgery recommended by the worker’s treating surgeon.
Decision date: 9 October 2019 | Member: Arbitrator John Wynyard
Medical Appeal decisions
Ms Johnson sustained an injury in the course of her employment as a cleaner due to the nature and conditions of her employment between 2009 and 28 August 2011; the AMS assessed 16% WPI of the lumbar spine and deducted 1/10th for pre-existing injury, which resulted in a total assessment of 14% WPI; the appeal panel found that the AMS erred in recording the opinion of Dr Bodel in relation to the s 323 deduction Dr Bodel applied; the appeal panel also found that the AMS erred in Part 8 of the MAC in that he made a deduction pursuant to section 323 but expressed the opinion that the worker did not suffer from any relevant previous injuries, pre-existing conditions or abnormalities and there was no direct contribution from a previous injury, pre-existing condition or abnormality which was taken into account when assessing the whole person impairment that results from the injury; the appeal panel reviewed the evidence and was satisfied that the injury in 2006 and pre-existing degenerative disc disease were causes of some of the WPI assessed and reflected a difference in the degree of impairment; the appeal panel considered that the AMS made a demonstrable error but the assessment of impairment was the same as that made by the AMS and therefore confirmed the MAC as the review had not led to a different result and should not be interfered with (Robinson v Riley (1971) 1 NSWLR 403).
Decision date: 3 October 2019 | Member: Arbitrator Carolyn Rimmer, AMS Dr Drew Dixon, Dr Greg McGroder
AMS assessed lumbar spine at 12% WPI, right lower extremity (knee) at 0% and skin at 0%; AMS found inconsistent presentation on examination and that the injured knee displayed same range of movement as uninjured knee; appellant submitted that inconsistent presentation not established or otherwise based on incorrect criteria; Held - AMS erred by making an assessment of 4% WPI and deducting 100% pursuant to s 323 given his factual findings that range of movement in injured knee was the same as uninjured knee; the application of correct criteria pursuant to paragraphs 1.36 and 2.20 of the fourth edition guidelines meant that the correct assessment was 0%; findings of inconsistent presentation otherwise upheld on appeal; appellant further submitted that AMS erred in making a 0% assessment of skin because appellant was conscious of the scar; Held - Various factual findings of the nature of the scar meant that it was clearly open for the AMS to make a 0% assessment; reference made to the pre-eminence of the clinical observations: Ferguson v State of New South Wales.
Decision date: 9 October 2019 | Member: Arbitrator John Harris, AMS Dr Richard Crane,
Dr Brian Noll