Legal Bulletin No. 40

Issued 17 April 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

Bendeich v Mayo Home Nursing Services [2020] NSWWCC 104

Worker with highest needs; application under section 38A of the 1987 Act; worker sought payments under section 38A from date of injury; respondent conceded that worker was entitled to section 38A payments from date of complying agreement; respondent disputed that payments should be made from date of injury notwithstanding the decision of Melides v Meat Carter Pty Limited; respondent submitted that because Melides has been appealed, the decision in this case should be reserved pending the outcome of the appeal in Melides;  Held - worker entitled to the benefit of the law as it currently stands; Melides applied; order for weekly payments under section 38A from the date of injury; award for the worker.

Decision date: 2 April 2020 | Member: Arbitrator Jane Peacock

Simister v The Trustees of the Society of St Vincent de Paul (NSW) [2020] NSWWCC 105

Whether the worker sustained a primary psychological injury within the meaning of sections 4 and 9A of the 1987 Act; whether the respondent had made out its defence under section 11A of the 1987 Act; the extent of the worker’s work capacity; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Attorney General's Department v K; Ponnan v George Weston Foods Ltd; Commissioner of Police v Minahan considered and applied; Held - the worker suffered a primary psychological injury in the course of his employment with the respondent on 10 September 2018 within the meaning of section 4(a) of the 1987 Act, to which employment was a substantial contributing factor within the meaning of section 9A of the 1987 Act; the respondent had not discharged its onus of establishing on the balance of probabilities that the disciplinary “action” was reasonable within the meaning of section 11A(1) of the 1987 Act and has not made out its defence in this regard; closed period of weekly benefits compensation awarded under sections 37(1) and 37(2) of the 1987 Act. 

Decision date: 2 April 2020 | Member: Arbitrator Anthony Scarcella

Gorostiza v State of New South Wales [2020] NSWWCC 106

Accepted cervical spine injury; whether the worker sustained a secondary psychological condition; extent and quantification of entitlement to weekly benefits pursuant to former sections 37 and 40 of the 1987 Act; whether aggravation of cervical spine ceased; Held - worker sustained a secondary psychological condition; worker incapacitated during period of weekly benefits claimed as a result of injury; respondent to pay weekly benefits, section 60 expenses and section 66 lump sum compensation.

Decision date: 6 April 2020 | Member: Arbitrator Rachel Homan

Johnson v Woy Woy Hotel [2020] NSWWCC 107

Nature of injury; respondent denied cause was frank injury; worker permitted to amend to claim disease process; section 4(b)(ii) of the 1987 Act; whether employment main contributing factor; Mason v Demasi considered; Held - award for the worker.

Decision date: 6 April 2020 | Member: Arbitrator John Wynyard

Domathoti v Hyne & Son Pty Limited [2020] NSWWCC 108

Psychological injury; claim for lump sum compensation and weekly benefits; liability had been accepted but was denied after information about similar claim in 2007 became known; worker had failed to disclose previous injury and previous claim for compensation; whether present claim could be believed; Held - Commission satisfied despite non-disclosure of previous injury that worker had suffered further injury; matter referred to AMS; respondent liable for weekly payments.

Decision date: 7 April 2020 | Member: Arbitrator Jill Toohey

Elkhaligi v Lifestyle Solutions (Aust) Limited [2020] NSWWCC 109

Psychological injuries with consecutive employers; claim for permanent impairment; whether the injuries could be assessed together pursuant to section 322(2); whether separate injuries could give rise to a single impairment; consideration of Department of Juvenile Justice v Edmed and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes; Held - impairments from the injuries could be aggregated; award for worker for 22% WPI.

Decision date: 7 April 2020 | Member: Arbitrator Paul Sweeney

Seles v State Transit Authority [2020] NSWWCC 110

Claim for weekly compensation and expenses pursuant to section 60 of the 1987 Act; accepted injury to right elbow from 2012 work injury; 2018 incident at home worker alleges further symptoms thereafter causally related to 2012 injury; Held - award for the respondent as worker had not discharged her onus of proof; Nguyen v Cosmopolitan Homes (NSW) Pty Limited and Kooragang Cement Pty Ltd v Bates applied; Strinic v Singh discussed.

Decision date: 7 April 2020 | Member: Senior Arbitrator Josephine Bamber

Sullivan v Southern Meats Pty Limited [2020] NSWWCC 111

Whether the worker suffered an injury to her cervical spine within the meaning of section 4 of the 1987 Act; gaps and inconsistencies in the medical evidence; absence of a reasoned diagnosis of work-related injury in a fair climate; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timbers Products Pty Ltd; Onassis and Calogeropoulos v Vergottis; Department of Education and Training v Ireland; Department of Aging, Disability and Home Care v Findlay considered and applied; Held -  the worker did not suffer a disease process of gradual onset in her cervical spine within the meaning of section 4(b)(i) of the 1987 Act or an aggravation, acceleration, exacerbation or deterioration of any disease process in her cervical spine within the meaning of section 4(b)(ii) of the 1987 Act arising out of or in the course of her employment with the respondent between 1 July 1992 and 2 September 1992;award for the respondent in relation to the worker’s claimed injury to the cervical spine on 2 September 1992.

Decision date: 7 April 2020 | Member: Arbitrator Anthony Scarcella

Browning v Manildra Flour Mills (Manufacturing) Pty Ltd [2020] NSWWCC 112

Claim for lump sum compensation and medical expenses for injury to lumbar and thoracic spines; worker claimed injury caused by lifting incident in December 2015; delayed onset of symptoms resulting from L5/S1 disc protrusion; whether expert opinion provided satisfactory basis for finding event in December 2015 caused injury to the spines; Held - not satisfied expert evidence provided satisfactory basis for finding; OneSteel Reinforcing Pty Ltd v Sutton and Hancock v East Coast Timber Products Pty Ltd applied; no satisfactory explanation for delay in onset of symptoms by expert replied upon for the worker or how other symptoms related to lumbar disc pathology; insufficient evidence to support claim of injury to thoracic spine; award for the respondent on claims for lump sum compensation and medical expenses.

Decision date: 8 April 2020 | Member: Arbitrator Nicholas Read

Jiear v Parmenter Jiear Builders Pty Ltd [2020] NSWWCC 113

Back injury; delay in giving notice of claim; ignorance; serious and permanent disablement; section 261 of the 1998 Act; respondent conceded permanent disablement but argued that it was not serious; Broken Hill Proprietary Company Ltd v Kuhna, Gregson v L & M Dimasi Pty Ltd and Griffin v Qantas Airways Ltd (Griffin) considered; Held - section 261 (4)(b) applied so that the delay in giving notice of the claim was not a bar to the recovery of compensation; award for the worker.

Decision date: 8 April 2020 | Member: Arbitrator Jane Peacock

Medical Appeal decisions

Darcy v P & T Formworking & Welding Pty Limited [2020] NSWWCCMA 66

Appeal from assessment of 0% whole person impairment in respect of the brain, cervical spine and both shoulders; whether AMS failed to consider relevant medical reports and the worker’s statement, failed to give reasons for disagreeing with one medical report, and misapprehended the effect of another medical report; whether AMS failed to assess the shoulder by failing to record range of movement; whether AMS failed to consider whether there had been musculo-ligamentous injury, or to give reasons why such injury had resolved; Held - error identified in failure to record range of shoulder movement on which the assessor relied; error identified in failure properly to assess the cervical spine; worker referred for further examination; MAC revoked.

Decision date: 2 April 2020 | Panel Members: Arbitrator Richard Perrignon,
Dr Tommasino Mastroianni and Dr Michael Fearnside | Body system: neurological, cervical spine, right upper extremity and left upper extremity

Radu v Precise Payroll Services Pty Ltd [2020] NSWWCCMA 67

Worker referred to the AMS for assessment in respect of the lumbar spine, cervical spine, right upper extremity (shoulder) resulting from an injury on 7 May 2015; appellant worker alleged that the AMS should have included a component for ADLs for the neck; appeal rejected on basis that ADL’s had been included for the lumbar spine; however re-examination required because of confusion by a number of IMEs and the AMS as to the nature and extent of surgery to the lumbar spine and whether radiculopathy was present; AMS confirmed surgery was performed at two levels requiting an adjustment for the lumbar spine impairment and no radiculopathy; Held - MAC revoked.

Decision date: 2 April 2020 | Panel Members: Arbitrator Deborah Moore,
Dr David Crocker and Dr John Ashwell | Body system: lumbar spine, cervical spine, right upper extremity

Robinson v Transdev NSW South Pty Limited [2020] NSWWCCMA 68

Appeal from assessment of 6% whole person impairment lumbar spine, 0%  of the right knee, and 0% of the left knee; whether AMS should have found radiculopathy in the lumbar spine and assessed a DRE Category II impairment; whether AMS failed to assess knees on the basis of diagnosis of arthritis rather than range of movement; error identified in the failure to give reasons for not assessing the left knee in accordance with the footnote to
Table 17-31 AMA 5; Held - MAC revoked.

Decision date: 2 April 2020 | Panel Members: Arbitrator Richard Perrignon,
Dr James Bodel and Dr Mark Burns | Body system: lumbar spine, right lower extremity and left lower extremity

Grace Worldwide (Australia) Pty Limited trading as Grace Removals Group v Howarth [2020] NSWWCCMA 69

Appeal from assessment of 11% whole person impairment in respect of the cardiovascular system (3% hypertension; 5% swelling; 3% treatment effect); whether claims had been made for impairment compensation with respect to swelling and hypertension; whether referral for assessment of cardiovascular system was within power; whether assessment of hypertension and swelling exceeded the terms of the Registrar’s referral; finding that assessment of swelling exceeded the terms of the referral for assessment of the cardiovascular system; Held - MAC set aside and replaced.

Decision date: 3 April 2020 | Panel Members: Arbitrator Richard Perrignon,
Dr Mark Burns and Dr David Crocker | Body system: cardiovascular system

Albury City Council v Elias [2020] NSWWCCMA 70

Worker referred to the AMS for assessment in respect of the lumbar spine and a consequential left shoulder injury; complex terms of referral; appellant employer claimed that the AMS erred by “ignoring the terms of the referral and substituting his own findings of injury”; the AMS was obliged to record details of various incidents and did so consistent with the terms of the referral; it was open to the AMS to determine no contribution from the nature and conditions of employment prior to a frank incident on 2 August 2016; Held - the deduction by the AMS of one-tenth pursuant to section 323 was open to him and consistent with other medical opinions; MAC confirmed.

Decision date: 7 April 2020 | Panel Members: Arbitrator Deborah Moore,
Dr David Crocker and Dr John Brian Stephenson | Body system: lumbar spine, left upper extremity and scarring

Registrar decision

Hoque v State of New South Wales [2020] NSWWCCR 1

Worker was a chef who suffered an accepted neck and back injury; work capacity decision issued by insurer as to suitable work as either a pathology courier or sales representative; it was accepted that the worker was unfit for his pre-injury duties; Held - the worker had limited transferable skills and no retraining: Broadspectrum Pty v Skiadis applied; the worker’s physical incapacity, reflected by recent certificates which were accepted by the respondent meant that suggested jobs were unsuitable; no other employment jobs suggested as being suitable; orders made on basis that worker had no current work capacity.

Decision date: 6 April 2020 | Member: Arbitrator John Harris