Legal Bulletin No. 47

Issued 5 June 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

Namo v Star Entertainment Group Limited [2020] NSWWCC 154

Weekly benefits; whether worker suffered disease injury in the course of his employment or an aggravation caused by his employment; if so, has the worker suffered incapacity; Held - worker suffered injury by way of aggravation of a disease process to his feet and hips pursuant to section 4(b)(ii) 1987 Act; worker further suffered partial incapacity for employment as a result of his injury.

Decision date:           21 May 2020
Date of Amendment: 25 May 2020 | Member: Arbitrator Cameron Burge

Thompson v Bernipave Pty Ltd [2020] NSWWCC 169

Lump sum claim for bilateral inguinal hernia; respondent had failed to respond to claim and had no medical assessment; Repeal of section 65(3) of the 1987 Act considered and whether this matter was suitable for determination by an Arbitrator without referral to an AMS; Held - matter was suitable for determination by an Arbitrator; the worker’s doctor’s assessment of permanent impairment disclosed no error and had applied correct criteria; an award was made for worker in accordance with his doctor’s assessment of permanent impairment of 14% WPI.

Decision date: 21 May 2020 | Member: Senior Arbitrator Josephine Bamber

Cayir v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 170

Disease injury; claim for permanent impairment compensation; whether work with subsequent employer is “employment as to the nature of which” the agreed disease injury is due; correct deemed date of injury in a claim for permanent impairment arising from a disease of gradual process; worker employed by respondent as baker; onset of disease of gradual process to arms and hands in course of employment; worker left respondent’s employ and obtained job as baker with subsequent employer; worker alleges that job less strenuous than employment with respondent; Held - the subsequent employment is to the nature of which the disease injury is due; Hay v Commonwealth Steel Company Pty Ltd; StateCover Mutual Ltd v Cameron; Smith v Mann and Commonwealth v Bourne considered and applied; the appropriate deemed date of injury in the circumstances of this matter is the date the permanent impairment claim was made on the respondent; SAS Trustee Corporation V O’Keefe applied; award for the respondent.

Decision date: 26 May 2020 | Member: Arbitrator Cameron Burge

Fenech v NSW Trustee and Guardian [2020] NSWWCC 171

Worker assaulted on work-related journey; claim for permanent impairment compensation; certain body parts accepted as injured, however, lumbar spine in issue; Held- worker suffered injury to lumbar spine in assault; Kooragang Cement Pty Ltd v Bates applied; Zickar MGH Plastic Industries Pty Ltd and Castro v State Transit Authority considered; matter remitted to Registrar for placement in pending list for referral to AMS to assess permanent impairment of injured body parts.

Decision date: 26 May 2020 | Member: Arbitrator Cameron Burge

Knight v X-Rail Specialists Australia Pty Ltd [2020] NSWWCC 172

Worker suffered an accepted injury to the lumbar spine; respondent contended that worker had recovered for the effects of injury within a short period and ongoing symptoms related to congenital spondylolisthesis; the parties agreed that arbitrator determine whole person impairment; Held - the Commission had the power to determine permanent impairment; Etherton v ISS Properties Pty Ltd applied; discussion of meaning of “results in degree of permanent impairment”; Secretary v Department of Education v Johnson and State Government Insurance Office v Oakley applied; respondent qualified doctor accepted that injury made worker more vulnerable to further exacerbation; worker had discharged onus of proof in establishing injury resulted in permanent impairment; statutory deduction pursuant to section 323 made; worker assessed at 20% WPI.

Decision date: 26 May 2020 | Member: Arbitrator John Harris

Mills v Foxtel Management Pty Ltd [2020] NSWWCC 173

Psychological injury; section 11A(1) of the 1987 Act; whether injury wholly or predominantly caused by employer’s actions in respect of transfer, demotion, dismissal or retrenchment; Held – respondent’s defence not made out; Manly Pacific International Hotel v Doyle considered and distinguished; award for worker.

Decision date: 26 May 2020 | Member: Arbitrator Paul Sweeney

Vargodi v Ranstad Pty Limited [2020] NSWWCC 174

Accepted injury to right knee, subsequent incident away from work; dispute as to whether proposed right total knee replacement was reasonably necessary as a result of the work injury; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd discussed and applied; Held - knee surgery was reasonably necessary; respondent to pay for proposed surgery pursuant to section 60 of the 1987 Act.

Decision date: 26 May 2020 | Member: Senior Arbitrator Glenn Capel

Moses v Workers Compensation Nominal Insurer (icare) & Ors [2020] NSWWCC 175

Claim for weekly payments of compensation and permanent impairment for injury to the lumbar spine which occurred in Puerto Rico; whether worker’s employment was connected to the state of New South Wales as required by section 9AA of the 1987 Act; consideration and application of the “usually based” test and the “principal place of business” test as set out in Workers Compensation Nominal Insurer v O’Donohue; worker fails to satisfy the “usually based” test but satisfies the “principal place of business” test; worker found to have no current work capacity and then partial incapacity for work; differences in opinion between doctors as to section 323 deduction such that section 66 claim cannot be determined by arbitrator; Held – award of weekly payments for no current work capacity and then partial incapacity for work; referral to AMS for assessment of permanent impairment of lumbar spine; employer had no insurance; order made for Workers Compensation Nominal Insurer to make payments to worker.

Decision date: 27 May 2020 | Member: Arbitrator John Isaksen

Medical Appeal decisions

Thorn v State of New South Wales [2020] NSWWCCMA 91

Police officer suffered PTSD as a result of traumatic events; application of PIRS categories; principles of assessment; Jenkins v Ambulance Service of NSW, State of NSW v Kaur and Parker v Select Civil applied; Held - AMS in error not to set out results of concentration and memory tests in assessing concentration, persistence and pace; re-examination not possible because worker deceased; MAC revoked.

Decision date: 21 May 2020 | Panel Members: Arbitrator Catherine McDonald,
Dr Michael Hong and Dr Lana Kossoff | Body system: psychological system

Trustees of the Marist Brothers v Riordan [2020] NSWWCCMA 92

Psychological injury; appeal from assessment of psychiatric impairment; whether the AMS fell into error in applying a deduction pursuant to section 323 of the 1998 Act; paragraph 11.10 of the Guidelines discussed; Pereira v Siemens Ltd considered; Held - no error demonstrated; MAC confirmed.

Decision date: 25 May 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Lana Kossoff and Dr Patrick Morris | Body system: psychological system