Legal Bulletin No. 58
Issued 21 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.
Supreme Court decision
Administrative Law; reviewability; justiciability; where decisions not amenable to certiorari; Civil Procedure; parties; wrong person made a party; application to substitute party; where addition of defendants sought.
Decision date: 20 Agust 2020 | Before: Campbell J
Application for section 60(5) declaration; worker had congenital spondylolisthesis aggravated at work: whether spinal fusion appropriate or effective; conflicting medical opinions; Diab and Rose considered; Held - proposed surgery reasonably necessary.
Decision date: 10 August 2020 | Member: Arbitrator John Wynyard
Claim for lump sum compensation for injury to right shoulder, neck, lumbar and thoracic spines; worker claimed injury caused by fall at workplace; incident captured on CCTV; respondent denied injury occurred as alleged and submitted incident was staged; Held – satisfied on the balance of probabilities the fall was a fortuitous event and was not staged; satisfied applicant suffered injury to right shoulder and neck as a result of fall; delayed onset of symptoms in thoracic and lumbar spines not satisfactory evidence to prove event caused injury to the thoracic and lumbar spines; award for the respondent on allegation of injury to the thoracic and lumbar spines; satisfied worker suffered a consequential left shoulder condition as a result of injury to the right shoulder and neck; matter referred to an AMS for assessment of the degree of whole person impairment arising from injury to the right shoulder, neck and left shoulder.
Decision date: 10 August 2020 | Member: Arbitrator Nicholas Read
Whether the supply and fitting of a right ear monaural hearing aid proposed by the worker’s clinical audiologist and forensic medical specialist is reasonably necessary treatment as a result of the industrial deafness deemed to have been sustained in the course of employment with the respondent within the meaning of section 60 of the 1987 Act; Kooragang Cement Pty Ltd v Bates; Murphy v Allity Management Services Pty Ltd, Bikesic v James Hardie Industries Ltd, Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - the supply and fitting of the proposed right ear monaural hearing aid is reasonably necessary treatment as a result of the industrial deafness deemed to have been sustained by the worker in the course of his employment with the respondent within the meaning of section 60 of the 1987 Act; the respondent is to pay for the costs of and ancillary to the supply and fitting of the right ear monaural hearing aid proposed.
Decision date: 11 August 2020 | Member: Arbitrator Anthony Scarcella
Lump sum claim; dispute in relation to lumbar spine; whether it is a consequential condition arising from agreed injury to left knee; Held - award for respondent; worker did not discharge his onus of proof; Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Kooragang Cement Pty Ltd v Bates applied, Arquero v Shannons Anti Corrosion Engineers Pty Ltd discussed.
Decision date: 11 August 2020 | Member: Senior Arbitrator Josephine Bamber
Medical Appeal decision
Injury in 1999 to neck and right shoulder; two previous awards in respect of permanent impairment; further assessment under Table of Disabilities and of WPI; method of assessment under Table of Disabilities; quantification system inappropriate; reassessment required because AMS failed to measure contralateral shoulder; whether section 323 deduction required; Held – MAC revoked.
Decision date: 11 August 2020 | Panel Members: Arbitrator Catherine McDonald,
Dr Mark Burns and Dr Brian Noll | Body system: Right upper extremity
Work capacity dispute; suitable employment per section 32A; worker suffered significant hand injury agreed to be 21% WPI, meaning worker was “high needs”; worker spoke no English, had little education, and had worked only in cleaning and farm hand roles; Held - no suitable employment due to worker’s physical restrictions, education and experience; consideration of section 38(3A) of the 1987 Act; award of weekly payments made pursuant to section 38.
Decision date: 12 August 2020 | Decision maker: Delegate Parnel McAdam