Legal Bulletin No. 7

Issued 16 August 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.

Arbitral decisions

Cox v Tweed Health for Everyone Pty Limited ATF Tweed Health for Everyone Trust [2019] NSWWCC 261

Psychological condition of applicant alleged to have been aggravated by workplace bullying; whether applicant sustained aggravation/acceleration/exacerbation/deterioration of disease question is has the affliction become more serious, citing Federal Broom Co Pty Ltd v Semlitch and Kelly v Western Institute NSW TAFE Commission; respondent submitted there was credit issue with applicant as he gave false statements to doctors and tried to supress medical history; Fair Work proceedings in Queensland produced an adverse finding of credit against applicant; Arbitrator found that applicant statements should be treated with caution but that applicant’s version of events supported by other evidence including that there was a stressful board meeting; Arbitrator found medical history showed respondent could function in employment until alleged bullying events; Arbitrator held there was a worsening of the applicant’s condition according to the principles in Semlitch; Arbitrator did not accept vague reference to personal issues in respondent’s medical expert report as outweighing the contribution of the workplace events; Arbitrator held applicant totally incapacitated for period claimed; s 60 medical expenses awarded; lump sum compensation claim remitted to Registrar.

Decision date: 1 August 2019 | Member: Arbitrator Ross Bell

Saade v Scribbles & Giggles Childcare Centre Pty Limited [2019] NSWWCC 262

Day care worker suffered fall at work; whether the applicant sustained injury to cervical spine and right upper extremity; whether the respondent admitted liability for cervical spine injury and right upper extremity injury at paragraph one of Reply; Rheumatologist performed MRI scan that showed majority of problems resulted from neck and referred down to shoulders; respondent medical report stated that ongoing problems were result of pre-existing degenerative condition; applicant submitted that respondent had conceded injury and matter was a s 319 medical dispute that should be referred to an AMS, relying on principles in Jaffarie v Quality Casting Pty Limited and citing Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; respondent submitted that pathology as well as injury must be established, relying on Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes; Arbitrator held evidence established fall occurred and that injury resulted from the fall; Arbitrator held that respondent had admitted to liability for both occurrence of injury and resulting pathology in Reply and rejected respondent submission that Arbitrtaor must make finding about precise extent of pathology; matter remitted to Registrar for referral to AMS for determination of permanent impairment.

Decision date: 1 August 2019 | Member: Arbitrator Cameron Burge

Balhatchet v Secretary, Department of Education [2019] NSWWCC 263

Teacher’s assistant had history of school incidents; whether applicant sustained personal injury or disease to lumbar spine and knees under s 4 of the 1987 Act; whether the impairments result from the same injury for the purposes of s 322(2) of the 1998 Act; whether entitlement to s 60 medical expenses; whether entitlement to weekly payments; applicant submitted that injuries arose from same incident, relying on Edmed v Wagg; respondent submitted evidence did not support disease injury; held that applicant suffered injurious event, following Lyons v Master Builders Association of NSW Pty Ltd; Arbitrator held that applicant did not sustain a disease injury but that evidence supported aggravation of existing injury; Arbitrator accepted that need for bilateral total knee replacement was to address osteoarthritic change; Arbitrator awarded medical expenses following principles in Diab v NRMA Ltd; Matter remitted to the Registrar for referral to an Approved Medical Specialist.

Decision date: 5 August 2019 | Member: Arbitrator Grahame Edwards

McCaw v Toll Holdings Limited [2019] NSWWCC 264

Facial injury and psychological condition as result of being assaulted by fellow employee; Arbitrator held that applicant was in course of employment when assaulted by fiancé of person he had made inappropriate comments about; whether assault occurred in the course of employment; Arbitrtaor held that it was, distinguishing it from Bill Williams Pty Ltd v Williams; Badawi v Nexon Asia Pacific Limited trading as Commander Australia Pty Limited discussed in relation to construction of s 9A; s 9A requires connection that is real and of substance; Arbitrator held that it did s 60 medical expenses awarded.

Decision date: 5 August 2019 | Member: Arbitrator Paul Sweeney

Monahan v R.H Anicich & A.J. Deegan & Others [2019] NSWWCC 265

Psychological injury; whether the applicant’s entitlement to lump sum compensation should be determined by the Commission without referral to an AMS; respondent submitted there was a medical dispute under s 319 of the 198 Act; Arbitrator held that as there was no liability dispute before her as the injury was accepted; Arbitrator accepted medical report as there was no evidence in reply; Arbitrator accepted that matters raised by respondent including absence of regulations pursuant to s 321A of the 1998 Act, supported finding that delay and cost of medical assessment not warranted; award for lump sum compensation;

Decision date: 5 August 2019 | Member: Arbitrator Rachel Homan

Wood v Woolworths Limited [2019] NSWWCC 266

Applicant alleged psychological condition arising from workplace bullying; applicant described various incidents of bullying and had a mental health plan with psychologist; threats to kill were made; whether the applicant sustained psychological injury pursuant to s 4 of the 1987 Act; principles in Attorney-General’s Department v K cited relating to determination of causation in psychological injury cases; Arbitrator held that applicant had been untruthful about not having psychological stressors in the past but weighed evidence objectively according to Brines v Westgate Logistics Pty Ltd; following Paric v John Holland (Constructions) Pty Ltd, Arbitrator not satisfied that there was a fair climate to accept applicant medical evidence; award for the respondent.

Decision date: 5 August 2019 | Member: Arbitrator Rachel Homan

Zahrabi v Warringah Crane and Transport Service Pty Ltd [2019] NSWWCC 267

Undisputed back injury in course of employment; undisputed consequential injury to teeth by way of severe degeneration from combined effects of smoking and taking of opiate medication; respondent medical evidence acknowledged that treatment would be of significant benefit to applicant but had reservations as to whether proposed treatment reasonably necessary; Arbitrator considered cost, even though respondent did not raise it, and held that treatment reasonable even though lower cost treatment available; s 60 medical expenses awarded.

Decision date: 5 August 2019 | Member: Arbitrator Jill Toohey

Guilbert v Glenworth Valley Horse Riding Pty Ltd [2019] NSWWCC 268

Undisputed injury thoracic spine when dismounting horse alleged to be in course of employment; whether applicant was a worker under s 4; applicant submitted that clear intention to create legal relations in volunteer relationship consistent with principles in Steven v Brodribb Sawmilling;applicant submitted that case distinguishable from Teen Ranch Pty Ltd v Brown as the applicant volunteered for the reward of free riding lessons and trail rides; respondent submitted case can be distinguished from Harris v Cudgegong Soaring Pty Ltd as applicant had no guarantee of position; Arbitrator not satisfied that the applicant was a “worker” in the employ of the respondent; held award for the respondent.

Decision date: 6 August 2019 | Member: Senior Arbitrator Glenn Capel

Lindsay v ISS Property Services Pty Limited [2019] NSWWCC 269

Applicant worked in various types of noisy employment; whether industrial deafness due to employment for the purposes of s 17 of the 1998 Act; whether applicant entitled to medical expenses for binaural hearing aids; test of the nature of employment for hearing loss claims does not require strict causation: Shire Council v Lobley; detailed evidence necessary, following Dawson v Dawson; Arbitrator held that evidence of noise levels missing from applicant’s medical evidence; held applicant had not discharged onus on the relevant principles from Dawson v Dawson, Lobley and Makita; award for respondent.

Decision date: 6 August 2019 | Member: Arbitrator Ross Bell

Sullivan v TAFE NSW [2019] NSWWCC 270

Primary psychological injury by way of a disease process under section 11A(1) of the 1987 Act; ISS Property Services Pty Ltd v Milovanovic cited as authority that it is not necessary to determine which of the actions were the whole or predominant cause of the injury; the respondent downgraded the applicant and respondent failed to establish defence under s 11A; entire process looked at in accordance with Department of Education and Training v Sinclair; Arbitrator held that insurer had misunderstood s 11A defence and saw it as a means to ceasing weekly payments, not a means to deny liability for the injury.

Decision date: 6 August 2019 | Member: Arbitrator Anthony Scarcella

Medical Appeal decisions

Khaliqi v Inala [2019] NSWWCCMA 104

Chef at restaurant injured right knee when he fell carrying a box of potatoes; appellant challenged assessment of right upper extremity and assessment of scarring; respondent submitted assessment conducted in accordance with cl 1.23 of the Guidelines; Panel held that AMS exercised clinical judgment in not finding instability involving the patella and gave clear reasons for not adopting the views of the applicant’s medial expert; MAC confirmed.

Decision Date: 5 August 2019 | Panel: Arbitrator Gerard Egan, Dr John Ashwell and Dr Brian Noll | Body system: Right lower extremity (knee)

Pearson v Carey’s Freight Lines (Tamworth) Pty Ltd [2019] NSWWCCMA 105

Psychological injury following warning letter; appellant sought to produce fresh evidence under s 328(3) of the 1998 Act concerning complaints about the way the medical assessment was conducted; the question was whether the evidence had substantial prima facie probative value, following Lukacevic v Coates Hire Operations Pty Ltd; Arbitrator rejected the s 328 argument on the basis that the applicant’s statement was of no probative value; Panel dismissive of submission that AMS obligated to consult with appellant’s medical practitioners; Panel referred to Ferguson v State of New South Wales and noted pre-eminence of AMS’s clinical observations; there has to be more than a difference of opinion, following Glenn William Parker v Select Civil Pty Ltd; reasons given by AMS supported class 2 for social functioning; MAC confirmed.

Decision date: 5 August 2019 | Panel: Arbitrator John Wynyard, Dr Julian Parmegiani and Dr Nicholas Glozier | Body System: Psychological injury

Bedford v Machin’s Sawmill Pty Limited [2019] NSWWCCMA 106

Ryder v Sundance Bakehouse cited for requirements of s 323 deduction; AMS correctly approached task as explaining how previous impairment contributed to current impairment, not by reference to how well the appellant was able to function before the injury; MAC confirmed.

Decision date: 7 August 2019 | Panel: Arbitrator Ross Bell, Dr Mark Burns and Dr James Bodel | Body system: left upper extremity

Mavin v Tomago Aluminium Co Pty Ltd [2019] NSWWCCMA 107

AMS described scarring as minimal and well-healed; AMS was not satisfied that the dysfunction of the right arm could be attributed to overuse; Panel held that finding of AMS on upper extremity was contrary to determination of Commission; role of the Arbitrator is to decide causation and the role of the AMS is to assess the level of impairment resulting from the pathology which results from injury: Bindah; Panel satisfied that the pathology reported is consistent with equal contribution from overuse of the right arm resulting from the subject injury; new MAC issued.

Decision date: 7 August 2019 | Panel: Arbitrator William Dalley, Dr Philippa Harvey-Sutton and Dr Drew Dixon | Body system: left upper extremity, right upper extremity, cervical spine and scarring

Tziallis v Elephant Boy Trading Co Pty Limited [2019] NSWWCCMA 108

Chef injured back when she reached out to stop a large commercial mixer falling off a bench; AMS diagnosed 3% for thoracic spine; appellant submitted that medical opinion not given consideration by AMS; Panel found brief reasons provided by AMS as to why he disagreed with medical expert; Panel held that appellant’s submissions based on Dogon v Redmond not apposite as it was decided on basis of Motor Accidents Authority Guidelines; MAC confirmed.

Decision date: 7 August 2019 | Panel: Arbitrator Catherine McDonald, Dr David Crocker and Associate Professor Michael Fearnside | Body system: Thoracic spine