Legal Bulletin No. 21
This bulletin was issued on 22 November 2019
Issued 22 November 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.
Factual findings; whether material facts were overlooked or misconstrued; Whiteley Muir & Zwanenberg Ltd v Kerr considered; Kooragang Cement Pty Ltd v Bates considered.
Decision date: 8 November 2019 | Member: President Judge Phillips
Causation; incapacity and medical expenses including surgery; whether the injury made a material contribution to the need for surgery given pre-existing degenerative changes; Murphy v Allity Management Services Pty Ltd ; Comcare v Martin; Kooragang Cement Pty Ltd v Bates discussed; reliability of evidence; alleged discrepancies in the histories of the incident of injury given by the applicant; Held - L5/S1 disc replacement surgery is reasonably necessary.
Decision date: 7 November 2019 | Member: Arbitrator Ross Bell
Alleged injuries to multiple body parts owing to nature and conditions of employment; whether applicant has satisfied onus of proof; Held - onus of proof satisfied with respect to certain body parts and not others; Kooragang Cement Pty Ltd v Bates; Mercer v ANZ Banking Corporation discussed; claim for permanent impairment remitted to the Registrar for referral to an AMS.
Decision date: 8 November 2019 | Member: Arbitrator Cameron Burge
Application to rescind COD to enable appeal against MAC in lump sum compensation claim; alleged deterioration and fresh evidence; purpose of appeal is to establish thresholds for claims under section 39 and/or section 151H of the 1987 Act; principal issue is whether worker can appeal MAC for permanent impairment compensation claim to establish threshold when no threshold claim made; worker can appeal MAC based on deterioration if otherwise appropriate to set aside COD; no time limit for allegation of deterioration or fresh evidence; strength of allegation of deterioration is relevant factor in considering whether to set aside COD; principle of finality of litigation and delay; Held - COD set aside; worker entitled to lodge medical appeal application pursuant to section 327(3)(a) and/or (b).
Decision date: 12 November 2019 | Member: Arbitrator John Harris
Worker employed as a makeup artist suffered a psychological injury when she witnessed a stabbing outside her workplace; capacity for employment; online investigation showed significant social media presence advertising services as a makeup artist; whether Commission should find that she had recovered so that the effect of the repeal of section 65(3) of the 1987 Act was that the permanent impairment claim should not be referred to an AMS; Perec v Lee and Ran (t/as Pure & Delicious Healthy); Held - award for weekly compensation for a short period and section 60 expenses, permanent impairment claim referred to an AMS.
Decision date: 12 November 2019 | Member: Arbitrator Catherine McDonald
Injury and consequential condition; whether injury to back includes lumbar spine; whether applicant suffered consequential condition to right shoulder as a result of accepted injury to neck and left shoulder; whether applicant suffered injury to right leg at or above knee; Held - injury to back includes lumbar spine; consequential condition made out; award for respondent on claim for right leg injury; Castro v State Transit Authority; Kumar v Royal Comfort Bedding Pty Ltd followed.
Decision date: 12 November 2019 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
Referral following arbitral decision regarding consequential conditons contradicted by AMS; reference to Mahenthirarasa v State Rail Authority of New South Wales & Ors and Jaffarie; Held - MAC revoked; section 323 deductions applied.
Decision date: 11 November 2019 | Panel Members: Arbitrator John Wynyard, Dr Mark Burns and Dr Brian Noll | Body system: right lower extremity, right hip, left hip, TEMSKI
Psychological injury; appellant worker alleged error in ratings by AMS under the Permanent Impairment Rating Scale; Appeal Panel could not discern error; overall assessment of WPI by AMS confirmed on appeal; Held - MAC revoked to correct obvious errors.
Decision date: 12 November 2019 | Panel Members: Arbitrator Jane Peacock, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: psychological injury
Employer’s appeal on the basis that the MAC contains a demonstrable error; the AMS assessed the upper digestive tract, the lower digestive tract and anus; the referral from the arbitrator requested assessment of the upper digestive tract only; the AMS assessed upper digestive tract at 0%, lower digestive tract at 0% and anus at 2%; Merza v Registrar Workers Compensation Commission (NSW), and Aircons v Registrar of the Workers Compensation Commission of NSW & Anor considered; the Appeal Panel found that the MAC contains a demonstrable error and that there should not be a referral for further assessment pursuant to section 329 of the 1998 Act as requested by the respondent in its alternative submission; MAC revoked and new MAC issued; 0% WPI; upper digestive tract.
Decision date: 13 November 2019 | Panel Members: Arbitrator Brett Batchelor, Dr Richard Crane and Dr Neil Berry | Body system: upper digestive tract.