Legal Bulletin No. 41
This bulletin was issued on 24 April 2020
Issued 24 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.
Hospital worker suffered right knee pain as a result of duties collecting waste, pushing and pulling bins; whether the worker suffered an injury within section 4(b)(ii) of the 1987 Act; main contributing factor; AV v AW and Seltsam Pty Ltd v McGuiness considered; Held - award for the worker.
Decision date: 9 April 2020 | Member: Arbitrator Catherine McDonald
Roeland v Way-Up Creative Services Pty Limited trading as Eden Café & Catering Service  NSWWCC 115
Claim for weekly payments of compensation for injury to the left knee, lower back and consequential condition affecting the right knee; reference to Moon v Conmah Pty Ltd and Munce v Thomson Cool Rooms Pty Ltd in determination of claim for consequential condition; lack of evidence and explanation to support claim for consequential condition affecting right knee; worker found to have no current work capacity and then partial incapacity for work, mainly as a result of lower back injury, for balance of section 37 period; Held - award for respondent for claim for consequential condition affecting right knee; award of weekly payments for no current work capacity and then partial incapacity for work for balance of section 37 period.
Decision date: 14 April 2020 | Member: Arbitrator John Isaksen
Injury to lumbar spine; earlier statement of reasons in favour of respondent as wrong date of injury pleaded; correct date identified in earlier statement of reasons claimed in present matter; now defended on credit grounds; worker made redundant soon after injury: Held - award for worker; principle in Jones v Dunkel applied; respondent estopped from raising issues decided in earlier statement of reasons.
Decision date: 15 April 2020 | Member: Arbitrator John Wynyard
Hearing loss; operation of section 261 of the 1998 Act; whether worker’s claim made in time; if claim made outside three year period, whether worker suffered serious and permanent disablement; Held - worker aware of injury in or about June 2015 upon receipt of expert medical report, claim made more than three years after worker became aware of injury; insufficient evidence to establish worker suffered serious and permanent disablement; award for respondent.
Decision date: 15 April 2020 | Member: Arbitrator Cameron Burge
Determination of objections to Directions for Production; requests for orders to issue further Directions for Production; relevance of documents to issues in dispute; Held - objections upheld and Directions for Production set aside in their entirety; applications for orders to issue further Directions for Production refused.
Decision date: 15 April 2020 | Member: Arbitrator Rachel Homan
Claim in respect of condition in left shoulder consequent upon undisputed injury to right shoulder and for the cost of surgery on left shoulder; respondent disputes left shoulder condition consequent upon right shoulder injury and that the proposed left shoulder surgery is reasonably necessary as a result of the pathology in the left shoulder pursuant to section 60(1) of 1987 Act and Diab v NRMA Ltd; two lots of surgery performed on right shoulder, accepted by respondent; Held- finding that the condition in the left shoulder consequent upon the undisputed injury to the right shoulder and that the surgery proposed for the left shoulder is reasonably necessary as a result in the injury to the right shoulder.
Decision date: 15 April 2020 | Member: Arbitrator Brett Batchelor
Accepted injury to cervical spine; whether the worker suffered an injury to his left shoulder; the value of contemporaneous evidence; absence of contemporaneous complaints of left shoulder symptoms for almost 12 months; absence of contemporaneous evidence not determinative on the issue of causation where there is other evidence; absence of a reasoned diagnosis of non-work-related injury in a fair climate; Davis v Council of the City of Wagga Wagga, King v Collins, Mastronardi v State of New South Wales, Onassis and Calogeropoulos v Vergottis,Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland,Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles and Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - the worker suffered injuries to the cervical spine and the left shoulder arising out of or in the course of his employment with the respondent within the meaning of sections 4(a) and 9A of the 1987 Act; weekly benefits compensation awarded under sections 37(3) of the 1987 Act; referral to AMS; general order under section 60 of the 1987 Act.
Decision date: 15 April 2020 | Member: Arbitrator Anthony Scarcella
Medical Appeal decisions
Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC in relation to assessment of the lumbar spine regarding no deduction by AMS applied under section 323 of the 1998 Act for pre-existing structural abnormalities; Held - demonstrable error on the face of the MAC; section 323(2) of 1998 Act applied with one-tenth deduction for asymptomatic spondylolisthesis with pars defects; Ryder v Sundance Bakehouse, Cole v Wenaline, Fire & Rescue NSW v Clinen; Vitaz v Westform (NSW) Pty Ltd considered and followed; MAC revoked.
Decision date: 9 April 2020 | Panel Members: Arbitrator Ross Bell, Dr Brian Noll, Dr Michael Fearnside | Body system: lumbar spine, nervous system and scarring
The respondent worker suffered a crush fracture at T12 resulting in 22% WPI; the AMS declined to make a deduction under section 323 of the 1998 Act based on a finding that there was no pre-existing impairment; Held - the AMS erred by applying an incorrect legal test in finding that there must be pre-existing impairment and failing to consider whether any pre-existing condition contributed to impairment; Vitaz v Westform (NSW) Pty Ltd and Cole v Wenaline applied; worker reassessed noting that the onus of proof lay on the employer to establish any section 323 deduction; Matthew Hall Pty Ltd v Smart applied; on reassessment held that the worker had osteoporosis prior to injury which contributed to and increased the size of the loss of vertebral height due to the fracture; statutory deduction of one-tenth applied; MAC revoked.
Decision date: 14 April 2020 | Panel Members: Arbitrator John Harris, Dr Drew Dixon and Dr Gregory McGroder | Body system: thoracic spine
Worker referred to the AMS for assessment in respect of the Lumbar Spine, Cervical Spine, Right Upper Extremity (right shoulder) and Digestive System resulting from an injury on 8 June 2011; significant evidence of recovery of certain body parts by early 2013; the worker’s presentation to the AMS in 2019 was of significant symptoms and restrictions; the worker complained that the AMS erred in his assessment of all body parts referred, and in particular failed to draw to the attention of the worker’s evidence of his apparent recovery from the injuries; Held - that the assessments of 0% WPI were open to the AMS on all the evidence; the finding of 8% WPI in respect of the right shoulder from which a 100% deduction was applied in accordance with 8(g) of the Guidelines was open on the evidence; further, although not the role of an AMS to bring discrepancies or inconsistencies in the evidence to the attention of the appellant, the AMS nonetheless repeatedly asked the worker to explain certain inconsistencies which he could not; in addition, allegations of a denial of natural justice and procedural fairness do not constitute either the application of incorrect criteria or a demonstrable error; MAC confirmed.
Decision date: 15 April 2020 | Panel Members: Arbitrator Deborah Moore, Dr Richard Crane and Dr Gregory McGroder | Body system: cervical spine, lumbar spine, right upper extremity and digestive system