Legal Bulletin No. 9
This bulletin was issued on 30 August 2019
Issued 30 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.
Mahal v State of New South Wales (No 5)  NSWWCCPD 42
Practice and procedure on appeal – Raulston v Toll Pty Ltd  NSWWCCPD 25; application for fresh evidence – CHEP Australia Limited v Strickland  NSWCA 351 considered; application for reconsideration – Samuel v Sebel Furniture Limited  NSWWCCPD 141 considered; application to re-open matter – practice and procedure in Commission; application to state a case from the Commission to the Supreme Court – Div 8 of Pt 6 UCPR considered.
Decision date: 20 August 2019 | Member: President Judge Phillips
Mahal v State of New South Wales (No 6)  NSWWCCPD 43
Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011, “exceptional circumstances”, “demonstrable and substantial injustice”, “merits of appeal”.
Decision date: 21 August 2019 | Member: President Judge Phillips
Jarvis v Toyota Material Handling Australia Pty Limited  NSWWCC 276
Psychological injury; whether the injury was caused by the reasonable actions of the respondent with respect to discipline, performance appraisal or dismissal; whether the applicant suffered incapacity for work as a result of his injury; Heggie discussed in relation to s 11A; Arbitrator satisfied that the applicant’s injury was wholly or predominantly caused by the respondent’s actions with regards to discipline; Wretowska discussed in relation to reasonableness; Arbitrator not satisfied on the balance of probabilities that the respondent’s actions were reasonable; Held applicant totally incapacitated for the period of weekly benefits claimed; Held respondent to pay weekly compensation and pay applicant’s reasonably necessary medical and treatment expenses.
Decision date: 15 August 2019 | Member: Arbitrator Cameron Burge
Dhungel v Jewel of India Admin Pty Ltd  NSWWCC 277
Injury to the cervical and lumbar spine; injuries sustained as a result of the nature and conditions of the applicant’s employment; whether the applicant suffered a workplace injury to her cervical and lumbar spine; Mercer and Rootsey considered in relation to s 9A of the 1987 Act; Arbitrator satisfied that the medical evidence is consistent with the applicant’s evidence that she was experiencing symptoms in her cervical spine; Arbitrator satisfied that the applicant’s contemporaneous evidence establishes that the applicant complained of low back pain before the first period of incapacity; Arbitrator held that the applicant suffered injuries to the cervical and lumbar spine as a result of the nature and conditions of employment; matter remitted the Registrar for referral to an AMS.
Decision date: 19 August 2019 | Member: Arbitrator Cameron Burge
Detloff v Ritchies IGA Pty Ltd  NSWWCC 278
Injury to head, brain and neck and primary psychological injury; injury in dispute; Nguyen considered in relation to causation; applicant relied on Romanous Constructions Pty Ltd v Arsenovic to distinguish the occurrence of a primary compared to a secondary psychological injury; Arbitrator satisfied that the applicant sustained a traumatic brain injury; Fernandez considered; s 65A of the 1987 Act applied; Arbitrator persuaded that the applicant suffered a direct and psychological injury; March referred; Held – applicant suffered a traumatic brain injury and primary psychological condition.
Decision date: 20 August 2019 | Member: Arbitrator Gerard Egan
Duck v EB & DE Bunt Pty Ltd  NSWWCC 279
Injury to the left and right wrists in the form of bilateral carpal syndrome; injury in dispute; whether the proposed bilateral carpal tunnel surgery reasonably necessary; Nguyen, Kumar and Kennedy considered in relation to causation; Arbitrator noted that the applicant did not present for any medical treatment for a considerable amount of time after the injury; Arbitrator noted that there was a lack of expert evidence to discharge the onus that the applicant suffered carpal tunnel injury in the incident; Luxton v Flounders applied; Held award for the respondent with respect to the applicant’s claim for injury to the right and left wrist in the form of bilateral carpel tunnel syndrome; Arbitrator further held that there be an award for respondent with respect to the claim for proposed bilateral carpel tunnel release.
Decision date: 21 August 2019 | Member: Arbitrator Gerard Egan
Sharron McCartney v Evergreen Lifecare Limited  NSWWCC 280
Injury to the right knee and lumbar spine; injury to the lumbar spine not in dispute; injury to the right knee in dispute; whether the applicant is entitled to weekly payments pursuant to s 37 of the 1987 Act; whether the applicant’s medical and treatment expenses were reasonably necessary as a result of injury within the meaning of s 60; Nguyen and Kooragang considered in regards to causation; Arbitrator not satisfied that there was a distinct physiological change or disturbance in the right knee; Semlitch discussed in relation to disease injury within the meaning of s 4(b)(i) of the 1987 Act; Arbitrator noted that the medical opinions in evidence did not support the proposition that the applicant contracted a disease process to the right knee in which employment was the main contributing factor; Arbitrator not satisfied that the worker suffered any aggravation or consequential injury to the right knee; s 32A if the 1987 applied; Held – award for the respondent in relation to the alleged injury to the right knee; Held – respondent to pay the applicant weekly compensation in respect of the accepted lumbar spine injury; Held – respondent to pay the applicant’s reasonably necessary medical and related expenses pursuant to section 60 of the 1987 Act.
Decision date: 21 August 2019 | Member: Arbitrator Anthony Scarcella
Medical Appeal decisions
The Australian Jockey Club t/as The Australian Turf club v Agnew  NSWWCCMA 113
Injury to the thoracic spine, lumbar spine and scarring; whether the AMS erred in failing to apply a deduction pursuant to s 323 of the 1998 Act; whether the AMS erred in attributing scarring to a subsequent injury; Panel satisfied that there is no evidence of any pre-existing element that would allow a deduction under s 323 of the 1998 Act; Panel of the view that there had been a significant increase in symptoms resulting from a fall in 2009; Panel considered that 2% WPI is the additional impairment due to the subsequent injury; Panel noted that the AMS erred in giving a date of injury to the scarring in 2011, when the worker underwent a laminectomy; Panel confirmed that scarring was due to the surgery in 2011 and that surgery was attributable to the injury referred; new MAC issued.
Decision date: 15 August 2019 | Panel: Arbitrator Ross Bell, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: thoracic spine, lumbar spine and scarring
Fard v Sash Transport Pty Ltd  NSWWCCMA 114
Injury to the left lower extremity and consequential condition to the lumbar spine; injury sustained when a cable drum weighing 700 kilograms rolled from a truck and onto the appellant worker; appellant worker submitted that the AMS failed to assess the injury to the left lower extremity; Panel considered the AMS’s failure to assess the left lower extremity was a demonstrable error; once the AMS has determined the condition affecting the left lower extremity, in order to comply with s 325 of the 1998 Act, the AMS has to determine whole person impairment as a percentage; Bukorovic; new MAC issued.
Decision date: 15 August 2019 | Panel: Arbitrator Carolyn Rimmer, Dr Mark Burns and, Dr Tommasino Mastroianni | Body System: left lower extremity and consequential condition to the lumbar spine
Vishal Mehta Bay of India v Han  NSWWCCMA 115
Psychological injury; whether the AMS failed to consider relevant material; appellant employer submitted that a social media report provided evidence of the worker’s activities that were inconsistent with the history reported to the AMS; Brennan and De Gelder discussed in relation to relevance; Panel noted that the social media report is irrelevant to the AMS’s task; even if the worker had involvement in the activities offered in the social media report, it was 13 months prior to the AMS’s clinical examination; Clause 1.6 of the Guidelines makes the required approach clear that clinical assessment of the claimant as they present on the day of assessment; Panel not of the view that the social media report would have any effect on the assessor’s clinical judgement; MAC confirmed.
Decision date: 15 August 2019 | Panel: Arbitrator Gerard Egan, Dr Patrick Morris and Professor Nicholas Glozier | Body System: Psychological Injury
Prosser v Roads and Maritime Services  NSWWCCMA 116
Psychiatric/Psychological injury; injury sustained when the appellant was harassed and intimidated while working as a school crossing supervisor; whether AMS erred by failing to refer to statements made by the appellant worker; whether the AMS applied the relevant criteria in chapter 11.10 of the Guidelines when applying the s 323 deduction under the 1998 Act; appellant submitted the AMS did not take into account any history concerning the details of the appellant’s personal hygiene; Ferguson discussed in relation to Chapter 11.12 of the Guidelines; the examples contained within the descriptors are to be taken as a guide; Panel accepted that AMS’s conclusion that the appellant’s continued prescription of psychiatric medication controlled her pre-existing condition; MAC confirmed.
Decision date: 15 August 2019 | Panel: Arbitrator John Wynyard, Dr Julian Parmegiani, Dr Patrick Morris | Body system: Psychological Injury
Emmett v Hancock Precast Pty Ltd  NSWWCCMA 117
Facial disfigurement, mastication, air passage defect and scarring; injuries sustained when there was a sudden explosion resulting in the worker falling face down onto a thermal lance; Appeal Panel determined that it was necessary for the worker to undergo a further medical examination due to insufficient medical evidence; Appeal Panel noted that the AMS did not provide a social history in sufficient detail to indicate whether the disfigurement severe enough to preclude social acceptance; Appeal panel noted that the disfigurement was considerable affecting all three facial zones and was consistent with his complaints of social isolation; Appeal Panel confirmed that the disfigurement be rated as a Class 4 impairment as defined in Table 6.1 of WCC Guidelines; MAC revoked.
Decision date: 16 August 2019 | Panel: Arbitrator Carolyn Rimmer Dr Paul Curtin, Dr Michael McGlynn | Body system: Facial disfigurement, mastication, air passage defect and scarring
Ryan v Gault  NSWWCCMA 118
Complex fracture dislocation to the left ankle and scarring; injury sustained when the appellant worker fell from a height of 3 metres; appellant submits that the AMS did not consider all parameters for measuring the restriction of range of movement of the ankle and did not consider flexion contraction and varus of valgus; Panel noted that the AMS did not set out his findings with respect to each criterion in Table 14.1 of the Guidelines and consequently did not reveal path of reasoning for assessment of worker’s impairment due to scarring, which was a demonstrable error; Appeal Panel required the appellant to be reassessed; Appeal Panel assessed scarring to be 0% due to lack of treatment, colour contrast and adherence; Appeal panel confirmed the AMS’s findings in regard to the left ankle; Appeal panel noted that because the worker’s ankle was internally fixed, there could not have been varus or valgus deformity; MAC revoked.
Decision date: 16 August 2019 | Panel: Arbitrator Marshal Douglas, Dr Richard Crane, Dr Margaret Gibson | Body system: left ankle and scarring
Fujitsu General Pty Ltd v Mendez  NSWWCCMA 119
Injury to the lumbar spine; injury sustained when the applicant was trying to lift and move an air conditioner; appellant employer submitted that the AMS erred when making an allowance of 3% and failing to make a deduction due to a pre-existing condition; Appeal Panel determined that re-examination is required; Appeal Panel noted that the worker confirmed that following a motor vehicle accident in 2010 he experienced significant lower back problems; Appeal Panel satisfied that a deduction of one-fifth is appropriate; Cole and Ryder referred to in relation to section 323 deduction under the 1998 Act; Appeal Panel noted that the worker did not complain about interference with personal care which more properly reflects the Guidelines examples in cl 4.35 for a 2% addition; Held – new MAC issued.
Decision date: 21 August 2019 | Panel: Arbitrator Gerard Egan, Dr Roger Pillemer, Dr Gregory McGroder | Body system: lumbar spine
Hallmark Cards Australia Ltd v Shepherd  NSWWCCMA 120
Injury to the lumbar spine; appellant employer submitted that a greater deduction of at least one-third ought to have been applied; appellant employer also submitted that the AMS erred in applying a 2% uplift for the restrictions in the activities of daily living; Appeal panel noted that the AMS’s factual findings of no previous symptoms were contrary to objective evidence including complaints to the worker’s general practitioner and prior CT scan. Factual findings by AMS held to be a demonstrable error due to failure to consider critical evidence; Christensen, Soulemezis and Wingfoot considered in regards to the standard of reasons required by the AMS; 4.33 – 4.36 of the 4th edition Guidelines discussed; Appeal Panel satisfied that the AMS was entitled to assess the effect on ADL’s at 2%; Appeal Panel opined that one fifth of the respondent’s impairment is due to the respondent’s pre-existing condition; new MAC issued.
Decision date: 21 August 2019 | Panel: Arbitrator John Harris, Dr Brian Noll, Dr Philippa Harvey-Sutton | Body system: lumbar spine