Legal Bulletin No. 29

Issued 31 January 2020

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

Rochester v Best & Less Pty Ltd [2020] NSWWCC 21

Order sought for the respondent to pay cost of left knee arthroscopy; determination of the nature of the injury sustained by the worker (Macarthur Group Training v Tahere); whether injury materially contributes to need for surgery (Murphy v Allity Management Services), and whether surgery is reasonably necessary (Diab v NRMA Ltd); Held – the injury sustained by the worker to left knee materially contributes to the need for surgery and is reasonably necessary; order that respondent pays the costs of that proposed surgery.

Decision date: 16 January 2020 | Member: Arbitrator John Isaksen

Waseeq v Hue Painting Group Pty Ltd [2020] NSWWCC 22

Whether a painter who performed work for the respondent for a period of 15 days at a daily rate of pay was a worker or independent contractor; Held – Stevens v Brodribb Sawmilling Co Pty Ltd applied; Malivanek v Ring Group Pty Ltd considered; consideration of indicia leads to finding a worker; whether the worker suffered injury in the course of his employment; consideration of the reliability of his evidence; extent of the worker’s capacity for work and whether he had the capacity to perform suitable employment accordance with section 32A of the 1987 Act.

Decision date: 17 January 2020 | Member: Arbitrator Paul Sweeney

Nilsson v Wollongong City Council [2020] NSWWCC 23

Claim for lump sum compensation; respondent admits frank injury to left shoulder but denies disease injury; respondent denies injury to the cervical spine and/or consequential condition in the cervical spine resulting from left shoulder injury; conflicting opinions as to causation in reports of worker’s independent medical expert; no report of neck symptoms until nearly eighteen months after last work; Held– evidence did not establish causal connection between employment and pathology in the neck whether by way of injury or consequential condition; if cervical spine impairment not included then impairment below section 66(1) threshold; unnecessary to decide whether left shoulder impairment also due to work tasks; Department of Education v Ireland, Kooragang Cement v Bates, Mannie v Bauer Media Pty Ltd applied.

Decision date: 20 January 2020 | Member: Arbitrator William Dalley

Medical Appeal decision

C P Whitehurst Pty Ltd (Deregistered) t/as C P Whitehurst Ltd v Whitehurst [2020] NSWWCCMA 9

Adequacy of section 323 deduction; claim said to be new claim restricted to 1 year employment post 1 January 2002; worker employed since 1998; onset arthritic symptoms in 1998; bilateral total knee replacement in 2012 and 2016; one-tenth deduction at odds with evidence; one-third substituted; Held – MAC revoked.

Decision date: 15 January 2020 | Panel Members: Arbitrator John Wynyard,  Dr Brian Stephenson and Dr Margaret Gibson | Body system: left lower extremity, right lower extremity and scarring