Legal Bulletin No. 32
This bulletin was issued on 21 February 2020
Issued 21 February 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.
Nature of error required on appeal; Raulston v Toll Pty Ltd considered.
Decision date: 11 February 2020 | Member: President Judge Phillips
Psychological injury; whether worker sustained primary injury on 10 December 2014 or secondary injury due to pain relief medication (hallucinations and nightmares); pre-existing condition or subsequent pain and disability; Held - on the facts and medical evidence worker’s symptoms date from incident on 10 December 2014; worker’s condition was stable for two years before 10 December 2014; worker suffered primary psychological injury; matter remitted to Registrar for referral to an AMS.
Decision date: 7 February 2020 | Member: Arbitrator Philip Young
Claim made by executrix of estate of the late worker for lump sum death benefit, funeral expenses and interest; claimant claims that as a result of lower back injury requiring multiple operations and causing immobility, the deceased worker gained weight which contributed to lower limb deep vein thrombosis and caused pulmonary emboli and subsequent death; application of Kooragang Cement P/L v Bates; consideration of various expert opinions on the cause of death; reference to the use of the term ‘results from’ in State of New South Wales v Rattenbury and Murphy v Allity Management Services Pty Ltd; determination of no one dependent on deceased worker at the time of death; reference to Kaur v Thales Underwater Systems Pty Ltd on claim for interest; Held - causal chain established from work injury to the death of the deceased worker; award of lump sum death benefit to claimant and the payment of funeral expenses; discretion exercised not to award interest.
Decision date: 7 February 2020 | Member: Arbitrator John Isaksen
Lump sum claim for neck and right shoulder; worker claimed neck injury at time of shoulder injury; worker’s rehabilitation medicolegal expert unaware of prior cervical cord injury; worker’s neurosurgeon expert so aware and unsupportive of causal nexus between shoulder injury and later recurrence of neck symptoms; respondent expert considered question of aggravation but also unsupportive of causal nexus; Held - onus not satisfied; award respondent for cervical injury left worker assessment of 10% for shoulder; failed to make section 66 threshold; award respondent for both claims.
Decision date: 7 February 2020 | Member: Arbitrator John Wynyard
Accepted injury to the left shoulder and scarring; worker pleaded also injured right shoulder at the same time or in the alternative suffered a consequential injury to the right shoulder. Conflicting evidence and insufficient evidence to support either type of injury to the right shoulder; Held - Award for the respondent in respect of the right shoulder injury; left shoulder injury remitted to an AMS.
Decision Date: 10 February 2020 | Member: Arbitrator Deborah Moore
Claim for permanent impairment of cervical spine; whether worker precluded from bringing claim because of operation of section 66(1A) of the 1987 Act and section 322A of the 1998 Act; injury and liability for injury also in dispute; Held - award for respondent on basis worker had already undergone assessment by AMS for injuries suffered in incident pleaded; additionally, worker did not satisfy onus of proof in establishing injury to cervical spine.
Decision Date: 10 February 2020 | Member: Arbitrator Cameron Burge
Claim for weekly benefits pursuant to section 38(2) of the 1987 Act; issue as to whether applicant suffered a secondary psychological injury, capacity for work in dispute; respondent claimed applicant was barred by section 119(3) of the 1998 Act from recovering compensation due to failure to submit himself for medical examination; Held – applicant suffered from a secondary psychological injury and had no current work capacity; applicant not barred by section 119(3) from recovering compensation; award in favour of the applicant pursuant to section 38(2) of the 1987 Act.
Decision Date: 11 February 2020 | Member: Arbitrator Brett Batchelor
Application for further medical assessment pursuant to section 329 of the 1998 Act. Held - application refused due to operation of section 66(1A) of the 1987 Act and section 322A of the 1998 Act; O’Callaghan v Energy World Corporation Limited and Singh v B & E Poultry Holdings Pty Ltd discussed.
Decision Date: 11 February 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for weekly benefits and section 60 expenses including the cost of future surgery; applicant pleads personal injury or aggravation of degenerative disease over period(s) of applicant’s employment, or on a particular day; respondent asserts injury is pre-existing gout; Held - finding of frank injury and substantial contributing factor to injury on a particular day; award for applicant from date of frank injury to the end of the closed period claimed by the applicant; section 60 award including the cost of future surgery.
Decision date 11 February 2020 | Member: Arbitrator Brett Batchelor
Medical Appeal decisions
Appellant suffered head injuries when he was struck by a soccer ball; AMS assessed tinnitus with no assessable impairment; brain injury at 5% WPI and no vestibular dysfunction; Held - MAC contained inconsistent assessments for the brain injury giving rise to demonstrable error; finding by AMS that the medical evidence did not establish adequate grounds for assessment of the vestibular system amounted to demonstrable error; medical evidence was consistent with ongoing problems associated with vestibular dysfunction; on reassessment the Appeal Panel was not satisfied the appellant had satisfied an essential clinical finding pursuant to paragraph 5.9 of the Guidelines to constitute traumatic brain injury; appellant had no treatment for his vestibular dysfunction despite recommendations; Appeal Panel not satisfied maximum medical improvement reached for the vestibular system; Held – MAC revoked.
Decision date: 10 February 2020 | Panel Members: Arbitrator John Harris, Dr Sophia Lahz and Dr Robin Fitzsimons | Body system: central/ peripheral nervous system, and vestibular system
Crush fracture to L5 of lumbar spine; method of measuring compression; chapter 4.12 of the Guidelines requiring plain x-ray not applied; no error as accuracy margin within AMS finding; Held – finding of demonstrable error; failure to apply ADL pursuant to Guidelines; MAC revoked; Roads and Maritime Services v Rodger Wilson and Drosd v Workers Compensation Nominal Insurer applied; Deduction under section 323 of the 1998 Act by AMS also revoked.
Decision date: 11 February 2020 | Panel Members: Arbitrator John Wynyard, Dr Roger Pillemer and Dr Margaret Gibson | Body system: lumbar spine and pelvis