Legal Bulletin No. 44
This bulletin was issued on 15 May 2020
Issued 15 May 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.
Supreme Court decision
Administrative law; judicial review; workers compensation; Workplace Injury Management and Workers Compensation Act 1998 (NSW); where surveillance report sought to be relied on as additional relevant information before Appeal Panel; where report was commissioned after medical assessment certificate issued; whether Appeal Panel erred in rejecting the report; summons dismissed.
Decision date: 8 May 2020 | Before: Adamson J
Whether error in determining the need for surgery resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, Raulston v Toll Pty, Najdovski v Crnojlovic considered and applied.
Decision date: 7 May 2020 | Member: Deputy President Elizabeth Wood
Factual error; the causation test in section 11A(1) of the 1987 Act.
Decision date: 7 May 2020 | Member: Deputy President Michael Snell
Medical expenses; whether provision of “Lite n’ Easy” meals is a reasonably necessary expense; whether need for meals arises from workplace injury; medical need for meals not in issue; meals reasonably necessary in light of weight gain consequent on bilateral knee injuries and hand injury; whether worker suffered facial injury; whether proposed dental treatment reasonably necessary; evidence disclosed no facial or dental injury; worker does not depose to such an injury; worker has failed to discharge onus to prove injury; Held - award for the respondent on the claim for injury to the worker’s mouth.
Decision date: 1 May 2020 | Member: Arbitrator Cameron Burge
Claim for the cost of future surgery to the right shoulder pursuant to section 60 of the 1987 Act; dispute as to the nature of the injury to the right shoulder; respondent concedes adhesive capsulitis injury, but worker’s case is that surgery required for more extensive condition revealed in pathological investigations; respondent submits that this is a pre-existing condition; analysis of worker’s evidence, pathological investigations and medical reports; finding that the work-caused injury is adhesive capsulitis; Held - award for the respondent in respect of the surgery claimed by the worker.
Decision date: 5 May 2020 | Member: Arbitrator Brett Batchelor
Claim for lump sum compensation; accepted lumbar spine injury; disputed consequential conditions of sleep apnoea and hypertension; worker claimed inactivity due to injury led to significant weight gain resulting in consequential conditions; Held – Arbitrator not satisfied that worker discharged evidentiary onus in relation to either consequential condition; lack of contemporaneous evidence to corroborate worker’s claim of weight gain; lack of detail in worker’s evidence; award for lump sum compensation in respect of permanent impairment of lumbar spine only.
Decision date: 6 May 2020 | Member: Arbitrator Rachel Homan
Medical Appeal decisions
Injury to cervical spine, lumbar spine and upper and lower digestive tract; appellant alleged error in assessment by the AMS in respect of the cervical spine assessment; AMS assessed DRE category I at 0% WPI for cervical spine; appellant alleged error and application of incorrect criteria and submitted should have assessed DRE category II; Held - the AMS was entitled to rely on his clinical findings on the day of assessment; assessment accorded with criteria for DRE category I; MAC confirmed.
Decision date: 30 April 2020 | Panel Members: Arbitrator Jane Peacock,
Dr John Brian Stephenson and Dr Richard Crane | Body system: cervical spine, lumbar spine, digestive system
Complaint of demonstrable error; allegation that AMS did not assess absolute field defect with respect to loss of vision and did not provide reasons; further complaint that AMS had exceeded his jurisdiction in finding that absolute field defect was artifactual and had failed to assess inferior field changes; the AMS had explained that absolute field changes were due to configuration of the upper eyelids and not to injury with no absolute field changes attributable to injury; full and complete reasons given by the AMS for this finding; any inferior field changes were found by the AMS to be relative and not absolute and hence not capable of assessment; application of Chapter 8.2 of AMA 4; the AMS had not exceeded his jurisdiction; reference to Jaffarie v Quality Castings Pty Ltd and Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; findings were appropriate in order to assess impairment arising from injury; Held - MAC confirmed.
Decision date: 30 April 2020 | Panel Members: Arbitrator William Dalley, Dr Harry Stern and Dr Michael Delaney | Body system: visual system
Injury to the lumbar spine; additional relevant information; whether AMS fell into error when assessing activities of daily living; whether the AMS fell into error in applying a deduction pursuant to section 323 of the 1998 Act; Paragraph 4.34 and 4.35 of the Guidelines discussed; Vitaz v Westform (NSW) Pty Ltd considered; Appeal Panel satisfied that the AMS misconceived the Guidelines when assessing the effect of activities of daily living; Appeal Panel satisfied that the AMS failed to give adequate reasons for the deduction; Held - MAC revoked.
Decision date: 30 April 2020 | Panel Members: Arbitrator John Wynyard, Dr Drew Dixon and Dr Margaret Gibson | Body system: lumbar spine
The worker suffered injury to the right shoulder and a consequential condition to the left shoulder; on examination the AMS found that the worker displayed inconsistent shoulder range movement and applied Paragraph 1.36 of the Guidelines; the AMS used a previous assessment which showed the greatest range of movement and assessed the combined assessment at 15% WPI; the appellant submitted that the use of prior range of motion was inconsistent with paragraphs 1.6a and 1.36 of the Guidelines; Held - the AMS was entitled to use a previous range of motion when modifying the impairment rating in accordance with Paragraph 1.36 provided he explained his reasons; no breach of Paragraph 1.6a as the AMS assessed the worker as he presented on the day of assessment; MAC confirmed.
Decision date: 1 May 2020 | Panel Members: Arbitrator John Harris, Dr Margaret Gibson and Dr Roger Pillemer | Body system: right upper extremity and left upper extremity
Appeal from assessment of 14% whole person impairment (9% visual system, 5% nervous system – brain) as a result of brain injury; whether AMS erred in attributing memory and cognitive impairment to pre-existing depression and microvascular disease; whether AMS failed to assess emotional or behavioural status or failed to take into account dyslexia acquired after injury; Held - MAC confirmed.
Decision date: 4 May 2020 | Panel Members: Arbitrator Richard Perrignon, Dr Michael Davies and Dr Michael Fearnside | Body system: visual system and nervous system
Thoracic spine, lumbar spine and left and right upper extremities injury; appellant presented evidence of severe exacerbation of the left and right upper extremities eight days after issue of MAC alleging deterioration; appellant could not be considered to have reached maximum medical improvement; Held - appellant should be reassessed in nine to twelve months to allow acute exacerbation to settle; MAC revoked.
Decision date: 5 May 2020 | Panel Members: Arbitrator Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder | Body system: thoracic spine, lumbar spine, left and right upper extremities