Legal Bulletin No. 1
This legal bulletin was issued on 5 July 2019.
Issued 5 July 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.
Construction of s 39 of the Workers Compensation Act 1987; RSM Building Services Pty Ltd v Hochbaum  NSWWCCPD 15.
Decision date: 17 June 2019 | Member: President Judge Gerard Phillips
Duty to give adequate reasons: Pollard v RRR Corporation Pty Ltd  NSWCA 110; error in fact-finding: Waterways Authority v Fitzgibbon  HCA 57; 221 ALR 402; 79 ALJR 1816.
Decision date: 20 June 2019 | Member: Deputy President Michael Snell
Accepted section 4 psychological injury; whether respondent’s actions reasonable under section 11A of the 1987 Act; allegations of aggressive conduct and other misconduct in formal Notification of Misconduct and subsequent investigation leading to dismissal; applicant submitted procedural fairness required by Kioa v West not provided; respondent submitted Code of Conduct not followed by applicant; principles in Northern NSW Local Health Network v Heggie applied; blemishes of the applicant do not make entire conduct of respondent reasonable: Department of Education & Training v Sinclair; Arbitrator held delay in investigation reasonable as it related to safety of employees; Arbitrator held failure to provide statements to applicant a blemish that did not affect final outcome: Arbitrator held absence of various documents including policy documents in proceedings unreasonable: State of New South Wales v Stokes; Arbitrator held s 11A defence not established; award for applicant.
Decision date: 18 June 2019 | Decision Maker: Arbitrator John Harris
Public relations officer sustained psychological injury after respondent had employment terminated; whether section 11A defence established by respondent; complaints of inappropriate conduct towards female staff members led to disciplinary investigation; applicant submitted that he felt he had been prejudged and not been given access to all the evidence against him; respondent submitted respondent conformed to the Local Government Industry Guidelines; Arbitrator held investigation was procedurally unfair as applicant should have been given opportunity of responding to allegations contained in complainant e-mail and serious allegations of bias should have been addressed; investigation was also in breach of the Industry Guidelines because applicant not given report of findings; consideration of “no current work capacity’ following Wollongong Nursing Home Pty Ltd v Dewar; Arbitrator held no work capacity; award for applicant.
Decision date: 24 June 2019 | Decision Maker: Arbitrator Glenn Capel
Applicant employed as plant operator for respondent; whether applicant sustained left shoulder injury and neck injury in course of employment; whether applicant sustained a consequential condition in right shoulder; leave granted under section 298A(4) for respondent to bring consequential injury into dispute with ultrasound evidence following Matteus v Zodune Pty Ltd; applicant relied on orthopaedic surgeon report of acute rupture of the left rotator cuff; applicant submitted after left shoulder sling removed he used his right shoulder in performing household chores; applicant submitted lack of reference to neck or right shoulder pain in medical reports was due to focus on left shoulder injury; definition of personal injury in Trustees of the Society of St Vincent de Paul (NSW v Kear) considered; Arbitrator held that respondent’s case was mere suspicion that no left shoulder injury was sustained and applicant’s evidence weighed according to Field v Department of Education and Communities; Arbitrator held insufficient evidence to support neck injury; Arbitrator satisfied that Koorang causation test met for consequential injury; award for applicant on shoulder injuries; award for respondent on neck injury.
Decision date: 24 June 2019 | Decision Maker: Arbitrator John Isaksen
Injury to the lower back; injury sustained as a result of the applicant’s work activities as an apprentice motor mechanic; applicant made a claim pursuant to s 66; whether proposed surgery is reasonably necessary; whether the applicant is entitled to weekly payments pursuant to s 38; Rose, Pelama and Diab discussed; Arbitrator satisfied that surgery is appropriate given that alternative methods of treatment have been tried but have not given long-term relief; s 32A discussed; John Grima v Bursons Automotive Pty Ltd discussed; Commission has no power to make a decision that is not consistent with a work capacity decision reached before 1 January 2019; held proposed surgery reasonably necessary; Arbitrator refused application for referral of matter to AMS to determine whether maximum medical improvement reached and whether degree of permanent impairment fully ascertainable, for lack of jurisdiction; Arbitrator held that Commission lacked jurisdiction to determine entitlement to s 38 weekly payments, following Lee v Bunnings; leave granted to parties to apply for further orders in respect of the claim for past treatment expenses pursuant to section 60 of the 1987 Act.
Decision date: 25 June 2019 | Decision Maker: Arbitrator William Dalley
Applicant sustained spinal injuries installing concrete panels in hostel ceiling; consequential condition for digestive system as a result of medication taken for spinal injury; Approved Medical Specialist assessed 0% for thoracic spine and lower digestive track; dismissal of first and second respondent’s first medical appeal quashed on judicial review; second Appeal Panel found anal assessment not within referral; determination then made that s 66 compensation be paid by respondent; applicant sought s 350(3) reconsideration and rescinding of the certificate of determination; applicant sought s 329(1A) reconsideration of medical assessment certificate or, in the alternative, a s 378 reconsideration by a Medical Appeal Panel; applicant submitted DRE II thoracic category should have been found; respondents submitted certificate of determination binding and that applicant could have appealed MAC at the time; general principles in Hatfield Engineering Pty Ltd v Fitzgerald and Reodica v State Rail Authority considered; question is one of interests of justice: Atomic Steel Constructions Pty Ltd; Arbitrator rejected third respondent submission that Hurst v Goodyear Tyre and Rubber Company authority to preclude lawyer mistake giving rise to reconsideration; delay fault of applicant’s solicitors and applicant’s claim not without merit but appeal out of time under section 327(5); Arbitrator held prejudice of legal cost and insufficient service to respondents; Arbitrator held that principle of finality important to effective and efficient system that Milosavljevic v Medina Property Services Pty Ltd observed s 329 falls within; Arbitrator held in obiter that it would be inappropriate under Arnone v Bluescope Steel Pty Ltd for s 378 reconsideration for the thoracic spine as it was not originally considered; award for respondents.
Decision date: 25 June 2019 | Decision Maker: Arbitrator John Harris
Injury to the back; injury sustained when the applicant was unloading a wet and heavy mattress; whether the spinal cord stimulator constitutes an “artificial aid” within the definition s 59A(6)(a); Thomas and Baldacchino discussed; aid must be specially tailored to the needs of a person, which flowed from the injury; applicant submitted that the medical evidence demonstrated that the insertion of the stimulator was specifically tailored to the applicant’s disability; arbitrator satisfied that the procedure is specifically tailored to the applicant as the procedure involves inserting leads into the epidural space for the purpose of locating the pain signal and delivering mild electric impulses to interrupt it; held that the proposed insertion of a spinal cord stimulator is the provision of an artificial aid within the meaning of s 59A(6)(a) of the 1987 Act.
Decision date: 25 June 2019 | Decision Maker: Arbitrator John Wynyard
Medical Appeal Panel decisions
Respondent kicked in back of right knee; subsequently experienced pain in lower back; AMS assessed evidence of dysfunction but no neurological features in lumbar spine; AMS assessed knee flexion to 50%; appellant employer appealed against MAC under ss 327(3)(c) and (d) on the basis that insufficient reasons provided for DRE Category II assessment and for 2% WPI for effects on Activities of Daily Living; appellant also appealed assessment of knee and failure to apply s 323 deduction; Panel held no error in assessment of lumbar spine; Panel held no error in assessment of effects on Activities of Daily Living; Panel held calculation method for lower extremity impairment not followed; Panel held investigation reports support conclusion that pre-existing degenerative condition existed in right knee but not lumbar spine; Panel identified and corrected error following Roads and Maritime Services v Rodger Wilson; Panel deducted 10% as proportion of injury attributable to pre-existing condition difficult to determine; original MAC revoked; new MAC issued.
25 June 2019 | Panel: Arbitrator Ross Bell, Dr Gregory McGroder and Dr John Brian Stephenson | Body System: Right lower extremity and lumbar spine
Work capacity dispute. Applicant sought interim payment direction pursuant to s 297 of the 1998 Act; whether the provision of a motor vehicle to the applicant constituted “non-pecuniary benefits”; applicant submitted that his PIAWE, and his weekly entitlements should include an amount for non-pecuniary benefits pursuant to 35, s 36, s 37 and s 44F of the 1987 Act; respondent denied that the motor vehicle fell within the definition of a NPB, because it was provided solely for work use; discussion of 44E and 44F of the 1987 Act ; onus on the applicant to establish that a NPB was provided; benefits must be provided for more than the mere practical carrying out of the work required of the applicant in the respondent’s enterprise; Arbitrator satisfied that the vehicle was for work purposes only; held application for an interim payment direction for weekly payments incorporating non-pecuniary benefits dismissed.
Decision date: 26 June 2019 | Delegate Gerard Egan