Legal Bulletin No. 56
Issued 7 August 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.
Orders on remitter from the Court of Appeal.
Decision date: 28 July 2020 | Member: President Judge Philips
Decision date: 30 July 2020 | Member: Deputy President Michael Snell
Lump sum claim; dispute in relation to cervical spine and right shoulder; whether they are consequential conditions arising from agreed injury to right elbow; Held – award for worker and referral to Approved Medical Specialist for assessment of permanent impairment.
Decision date: 23 July 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for weekly payments of compensation and medical expenses for injury to lower back and consequential condition affecting the right leg; worker employed as a courier under a contractor agreement; respondent disputes that worker was a worker or deemed worker; consideration of indicia of employment; Stevens v Brodribb Sawmilling Co Pty Ltd, On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3) and ACE Insurance Ltd v Trifunovski considered in relation to issue of worker;Humberstone v Northern Timber Mills and Amalgamated Pest Control Pty Ltd v Chaaya considered in relation to issue of deemed worker; Held – applicant was a worker; applicant also met definition of deemed worker; award for respondent on consequential condition affecting right leg; award of weekly payments for partial incapacity.
Decision date: 23 July 2020 | Member: Arbitrator John Isaksen
Galea v Secretary, Department of Communities and Justice (Department of Corrective Services)  NSWWCC 253
Heart attack injury; whether a workplace injury and if so whether a frank injury or consequential condition; whether employment a substantial contributing factor to injury; whether worker’s employment gave rise to increased risk of suffering injury; whether worker precluded from combining psychological and physical impairments; worker suffered accepted psychological injury in 2013; in 2015, after leaving that employment worker suffered a heart attack injury; Held – the heart attack injury was a frank injury as it arose out of the worker’s employment; Castro v State Transit Authority (NSW) discussed; Zickar v NGH Plastic Industries Pty Ltd and Kooragang Cement Pty Ltd v Bates applied; the worker’s employment was a substantial contributing factor to the injury; Dayton v Coles Supermarkets Pty Ltd, McMahon v Lagana and WorkCover Authority of New South Wales v Walsh considered; the requirements of section 9B of the Workers Compensation Act 1987 satisfied; the worker did not press application to combine physical and psychological impairments; in any event section 65A of the Workers Compensation Act 1987 does not apply given the heart attack injury was a frank injury arising at a different time from the accepted psychological injury; permanent impairment arising from whole person impairment assessed by Commission; permanent impairment arising from accepted psychological injury to be referred to Approved Medical Specialist.
Decision date: 23 July 2020 | Member: Arbitrator Cameron Burge
Calculation of PIAWE where worker suffered psychological injury after working part time for more than 52 weeks; worker argues that her ordinary hours and ordinary earrings were those appropriate to the full-time hours and that she had an undisputed contractual right to return to on notice; Held – ordinary earnings for the purposes of the former sections 44C and 44E of the 1987 Act are the hours that she worked or for which she was entitled to be paid.
Decision date: 27 July 2020 | Member: Arbitrator Paul Sweeney
Lump sum claim; dispute in relation left shoulder, whether it is a consequential condition arising from agreed injury to lacerated left forearm; Held – award for the respondent; worker did not discharge his onus of proof; Nguyen v Cosmopolitan Homes (NSW) Pty Limited applied; Kooragang Cement Pty Ltd v Bates considered.
Decision date: 28 July 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for medical expenses for left total knee replacement surgery; accepted right knee injury; whether consequential condition of left knee; whether left knee surgery reasonably necessary as a result of right knee injury; Moon v Conmah; Kooragang Cement Pty Ltd v Bates and Murphy v Allity Management Services Pty Ltd considered; Held – worker sustained consequential left knee condition; proposed surgery is reasonably necessary as a result of right knee injury; award for the worker.
Decision date: 28 July 2020 | Member: Arbitrator Rachel Homan
Section 60 medical expenses for proposed knee surgery; whether the need for surgery results from work injury; previous non-work injury nine months prior; Held – need for surgery a material contribution; proposed surgery the result of aggravation of work injury; Murphy v Allity Management Services Pty Ltd, March v Stramare (E & M H) Pty Limited, Flounders v Millar and Comcare v Martin considered.
Decision date: 28 July 2020 | Member: Arbitrator Ross Bell
Claim for lump sum compensation in respect of injury to right shoulder, cervical spine, conditions in the left upper extremity and upper and lower gastrointestinal tract consequent upon injury; respondent submitted that injury to right shoulder and cervical spine pre-existing degenerative conditions only; Held – finding of injury (section 4(b)(ii) 1987 Act) in favour of the worker and that the conditions in the left shoulder and upper and lower gastrointestinal tract consequent upon injury; application by worker to assess WPI instead of referring the matter to an AMS refused; Tabatha Sharman v Chemtools Pty Ltd applied.
Decision date: 28 July 2020 | Member: Arbitrator Brett Batchelor
Claim for lump sum compensation; accepted injury to left knee; whether worker developed a consequential condition in her lower back resulting from her injury; whether injury caused altered gait; whether altered gait caused lower back symptoms; Held – Kooragang Cement Pty Ltd v Bates applied; finding that worker developed altered gait as a result of her accepted knee injury and that altered gait lower back symptoms resulted; matter referred to Approved Medical Specialist for assessment of whole person impairment resulting from the left knee injury and consequential lower back condition.
Decision date: 29 July 2020 | Member: Arbitrator Jill Toohey
The worker sustained an accepted injury to the lumbar spine; consideration as to whether proposed surgery to alleviate leg pain is reasonably necessary. Held – award for worker; claim for medical expenses reasonably necessary.
Decision date: 29 July 2020 | Member: Arbitrator Elizabeth Beilby
Work capacity decision by insurer; injury to lumbar spine; significant opioids affecting capacity for suitable employment; worker in severe chronic pain; respondent had not considered general practitioner’s medical certificates; Held – award in favour of the worker.
Decision date: 29 July 2020 | Member: Arbitrator Philip Young
Medical Appeal decisions
Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the certificate in relation to differences in findings of another assessor with a PIRS category; application of clinical judgement; application of paragraph 1.32 of the Guidelines; effect of treatment and adjustment of additional WPI; Held – grounds of appeal not made out in relation to assessment of employability; difference of opinion not a ground of appeal; importance of clinical examination; demonstrable error on the face of the certificate in additional 1% WPI for effect of treatment; effect of treatment not sufficient for adjustment; Glenn William Parker v Select Civil Pty Limited, Ferguson v State of New South Wales, Marina Pitsonis v Registrar Workers Compensation Commission & Anor and Mahenthirarasa v State Rail Authority of New South Wales & Ors considered; MAC revoked.
Decision date: 29 July 2020 | Panel Members: Arbitrator Ross Bell, Dr Nicholas Glozier and Dr Patrick Morris | Body system: psychological
The worker suffered psychological injury following online abuse relating to her appearance on a reality television show (House Rules); the AMS assessed whole person impairment at 7%; Held – the AMS incorrectly characterised travel to children’s school and sport as falling within the PIRS scale for social and recreational activities; Ballas v Department of Education applied; fresh evidence concerning the delay and inadequacies in the video conferencing admitted pursuant to section 328(3); Lukacevic v Coates Hire Operation Pty Ltd applied; appellant denied procedural fairness in the inadequacy of the examination; Kioa v West considered; appellant re-examined by an AP member; MAC revoked and assessment made of 22% WPI.
Decision date: 29 July 2020 | Panel Members: Arbitrator John Harris, Dr Julian Parmegiani and Dr Lana Kossoff | Body system: psychological
Decision of gatekeeper under section 327(4) of the 1998 Act; AMS determined that worker had not reached maximum medical improvement; worker appealed alleging it was not the role of the AMS to recommend treatment and AMS failed to take into account the respondent was no longer liable for treatment expenses; Held - delegate of the Registrar not satisfied that it was arguable that a ground of appeal had been made out; appeal not to proceed.
Decision date: 28 July 2020 | Delegate: Parnel McAdam