Legal Bulletin No. 54

Issued 24 July 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.

Court of Appeal decision

Gardiner v Laing O'Rourke Australia Construction Pty Ltd [2020] NSWCA 151

Deeds; deed of release; construction; express terms of deed; whether deed of release relating to the settlement of complaints relating to discriminatory conduct discharged liabilities arising out of workers’ compensation legislation; where entitlement to sue under workers compensation legislation expressly preserved; workers’ compensation; entitlement to compensation; exclusions; payment to settle complaint under Anti-Discrimination Act 1977 (NSW); whether payment constituted “damages” under the 1987 Act, section 149 – operation of 1987 Act, section 151A, section 280B.

Decision date: 23 July 2020 | Before: Basten JA, Leeming JA and Emmett AJA

Arbitral decisions

Reza v TDA Industries Pty Ltd [2020] NSWWCC 231

Claim for weekly payments of compensation for injury to the right arm, lower back and neck; employer denies applicant was a worker; cross examination of applicant, respondent and other witnesses; extent of work capacity of applicant; Held – applicant was a worker; award of weekly payments for a 11 month period following injury.

Decision date: 10 July 2020 | Member: Arbitrator John Isaksen

Ross v SR Construction Pty Limited [2020] NSWWCC 232

The worker made a claim based on four distinct body parts in 2015; two of the body parts were found to have not reached maximum medical improvement or were not fully ascertainable; in 2016, following a medical appeal in respect of one other body part, the Commission issued a COD that the impairment was then not fully ascertainable; in 2019 the worker gave notice of further consequential conditions and sought to have these matters assessed together with the two body parts not previously assessed; the respondent argued that the worker was in breach of section 66(1A) of the 1987 Act (one claim) and section 322A of the 1998 Act (one assessment); Held - the worker’s claim had not been determined and could be amended with leave; Cram Fluid Power Pty Ltd v Green and Woolworths Ltd v Stafford applied; the worker had not completed his one assessment by reason of section 322(4); in the circumstances the one assessment process had not been completed and a medical assessment had not been issued pursuant to section 322A(3); O’Callaghan v Energy World Corporation Ltd distinguished on the basis that the assessment process had not been concluded; leave granted to amend claim and refer the further impairments for assessment.

Decision date: 10 July 2020 | Member: Arbitrator John Harris

Darcy v P&T Formworking & Welding Pty Ltd [2020] NSWWCC 233

Disputes regarding PIAWE calculation and entitlement to weekly compensation under sections 37 and 38 of the 1987 Act with orders sought pursuant to section 53 of the 1987 Act; Held - date of injury 3 June 2017, PIAWE calculated by references to former provisions of the 1987 Act including section 44C, 44D, 44E, 44G and 44I; award made in varying periods under section 37; order declined under section 38 due to insurer not having made assessment in relation to section 38(3)(c); worker’s award in relation weekly compensation ceased on 1 March 2020 at end of second entitlement period; order declined under section 53.

Decision date: 13 July 2020 | Member: Senior Arbitrator Josephine Bamber

King v Metalcorp Steel Pty Ltd [2020] NSWWCC 234

Reconsideration of a COD pursuant to section 350(3) of the 1998 Act; worker failed in his application for weekly compensation for the period after payments ceased pursuant to section 39 of the 1987 Act until an AMS determined that his permanent impairment was not fully ascertainable in accordance with section 319(g) of the 1998 Act; RSM Building Services Pty Ltd v Hochbaum, and Technical and Further Education Commission t/as TAFE NSW v Whitton applied; the worker lodged an appeal that was pending before the Presidential Unit; the Court of Appeal overturned the President’s decisions; both parties opposed a reconsideration by the Senior Arbitrator; Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW; Samuel v Sebel Furniture Limited; Howell v Stringvale Pty Ltd; New South Police Force v Winter; discussed and applied; Held - COD reconsidered due to the effect of the Court of Appeal determination; award for worker

Decision date: 13 July 2020 | Member: Senior Arbitrator Glenn Capel

Carlson v Menzies Property Services Pty Ltd [2020] NSWWCC 235

Consideration of a claim being duly made pursuant to section 65 of the 1998 Act ; consideration of an injury arising from the nature and conditions of employment and a consequential condition; Held – award for the applicant in respect of the claimed injury to the right lower extremity and consequential condition to the left lower extremity.

Decision date: 14 July 2020 | Member: Arbitrator Elizabeth Beilby

Rohl v Flincept Pty Ltd [2020] NSWWCC 236

Worker suffered fall in course of employment, injuring left shoulder; that injury led to multiple surgeries and psychological sequelae, which in turn led to the worker being prescribed a number of medications; worker later felt giddy and suffered a fall at home, causing leg injury eventually requiring below knee amputation; whether worker’s below knee amputation was a consequential condition as a result of the accepted left shoulder injury owing to being caused by symptoms associated with prescribed medications, namely serotonin syndrome; Kooragang Cement Pty Ltd v Bates followed; Held -  on a common-sense approach to causation, the worker’s left leg amputation is a consequential condition of the accepted left shoulder injury; matter remitted to Registrar for referral to AMS to determine whether worker’s whole person impairment exceeds 30%.

Decision date: 14 July 2020 | Member: Arbitrator Cameron Burge

Sharman v Chemtools Pty Ltd [2020] NSWWCC 237

The worker made a claim for compensation pursuant to section 66 of the 1987 Act; the respondent had the worker assessed by a doctor but declined to serve the assessment; the worker submitted that there was no medical dispute that could be assessed by an AMS and that its claim must be accepted; the parties agreed that the respondent could claim legal professional privilege over the report;  Held - there was a dispute concerning the extent of the worker’s permanent impairment which constituted a medical dispute within the meaning of section 319 of the 1998 Act; worker’s submissions involved reading words into section 319 which were not justified: Taylor v The Owners-Strata Plan No 11564; construction of section 319 meant that dispute could arise from other medical reports; matter referred to AMS who was advised of the principles of Jones v Dunkel.

Decision date: 14 July 2020 | Member: Arbitrator John Harris

Alavanja v Lynch Manufacturing Group Pty Ltd [2020] NSWWCC 238

Claim for lump sum compensation in respect of injury to spine and left shoulder; injury dispute in relation to cervical spine and left shoulder; issue whether worker’s evidence sufficient to discharge onus of proof; Held - award for worker under sections 4(b)(i) and (ii) of the 1987 Act and referral to Approved Medical Specialist for assessment of permanent impairment.

Decision date: 15 July 2020 | Member: Senior Arbitrator Josephine Bamber

Green v Woolworths Groups Limited [2020] NSWWCC 239

Claim for weekly payments of compensation for injury to the left hip and consequential condition affecting the right hip and order pursuant to section 60(5) of the 1987 Act for right total hip replacement; injury to left hip accepted but consequential condition affecting the right hip disputed; Moon v Conmah Pty Ltd considered;finding of consequential condition of right hip due to altered gait; Murphy v Allity Management Services considered; finding that injury to left hip does not materially contribute to need for need for right total hip replacement; finding of partial incapacity due to injury to left hip and consequential condition affecting the right hip; Held – award of weekly payments to worker for partial incapacity; award for respondent for section 60(5) order for right total hip replacement

Decision date: 15 July 2020 | Member: Arbitrator John Isaksen

BBP The Painter Pty Ltd [2020] NSWWCC 240

Self-represented litigant; injuries to left upper extremity, cervical and lumbar spine accepted; injury to head resulting in concussion and consequential conditions of headaches, loss of balance and vertigo disputed; worker was an existing recipient of weekly payments immediately before 1 October 2012; whether respondent has issued a work capacity decision; current weekly wage rate; whether worker is entitled to weekly payments of compensation pursuant to the former section 40 of the 1987 Act; Held -  worker suffered head injury in the course of employment resulting in concussion; failed to establish on the balance of probabilities that he suffered consequential conditions of headaches, migraine headaches, loss of balance and vertigo as a result of injury; award for the respondent; award for the worker for claim for weekly payments of compensation pursuant to the former section 36 of the 1987 Act; directions issued to the parties to provide submissions on the issues of work capacity decision; post-injury employment and earnings; worker’s entitlement to weekly payments of compensation.

Decision date: 15 July 2020 | Member: Arbitrator Grahame Edwards

Medical Appeal decisions

Ly v APB Employment Pty Ltd [2020] NSWWCCMA 125

Medical appeal against three categories of PIRS assessed; discussion of authorities as to psychiatric assessments; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Limited and Jenkins v Ambulance Service of NSW considered; appellant now living in Japan; no more shown than a mere difference of opinion on which reasonable minds may differ; Held – MAC confirmed.

Decision date: 10 July 2020 | Panel Members: Arbitrator John Wynyard, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: psychological

Angelo v G James Extrusion Co Pty Ltd [2020] NSWWCCMA 126

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the certificate in relation to differences in findings of another assessor; whether findings on examination sufficient; meaning of MRI report; whether reported measurements for muscle wasting adequate; Held – grounds of appeal not made out; reported findings on examination adequate; presumption of regularity; difference of opinion not a ground of appeal; importance of clinical examination; Glenn William Parker v Select Civil Pty Limited; Ferguson v State of New South Wales; Marina Pitsonis v Registrar Workers Compensation Commission & Anor; Mahenthirarasa v State Rail Authority of New South Wales & Ors; Bjkov v ICM Property Services Pty Limited and Jones v The Registrar considered; MAC confirmed.

Decision date: 15 July 2020 | Panel Members: Arbitrator Ross Bell, Dr James Bodel and Dr Philippa Harvey-Sutton | Body system: lumbar spine