Legal Bulletin No. 62
Issued 18 September 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.
Application for an extension of time; section 352(4) of the 1998 Act; rule 16.2(5) of the 2011 Rules; Bryce v Department of Corrective Services 188 applied; acceptance of and weight to be afforded to the evidence, Whiteley Muir & Zwanenberg Ltd v Kerr, Makita (Australia) Pty Ltd v Sprowles applied; onus of proof; Nguyen v Cosmopolitan Homes (NSW) Limited discussed.
Decision date: 7 September 2020 | Member: Deputy President Elizabeth Wood
Application of reconsideration principles, section 350(3) of the 1998 Act; Samuel v Sebel Furniture Limited considered.
Decision date: 8 September 2020 | Member: President Gerard Phillips
Claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by difficulties associated with a work-related lower back condition and lack of staff; respondent relies upon section 11A of the 1987 Act; defence that any injury was wholly or predominantly caused by reasonable action taken by way of performance appraisal and/or discipline; Attorney General’s Department v K applied; Held – several reasons for psychological injury sustained in the course of the worker’s employment; action taken in respect of discipline and/or performance appraisal of worker not the whole or predominant cause of injury (section11A); award of weekly payments of compensation; no current work capacity from 13 January 2020; payment of reasonable medical expenses.
Decision date: 3 September 2020 | Member: Arbitrator John Isaksen
Computer technician employed to provide on-site technical services to various clients of a third party, Unisys; injury suffered in a motor vehicle accident when returning from an assignment at Matraville; worker’s claim disputed on the basis that the worker was injured while travelling to his home and there was no connection with the employment; claim for weekly payments and a declaration that proposed lumbar surgery constituted reasonably necessary treatment resulting from low back injury suffered in the motor vehicle accident; issue of fact as to whether the worker was driving directly to his home or was intending to travel to Unisys site to deliver USB keys; accident site common to both routes; Held – worker was in the course of employment at the time of the accident, Whittingham v Commissioner of Railways (WA), Hatzimanolis v ANI Corporation Ltd, Comcare v PVYW, Da Ros v Qantas Airways Ltd applied; back and neck injuries causing substantial incapacity; capacity limited to two hours training work per week; entitlement to weekly payments established; need for surgery not established on the evidence; treating neurosurgeon stated that he wished to perform L5/S1 laminectomy, discectomy and posterior lumbar interbody fusion but did not explain the purpose of that surgery or its likely effect; Diab v NRMA Ltd, Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timber Products Pty Ltd considered.
Decision date: 3 September 2020 | Member: Arbitrator William Dalley
Claim for section 60 medical expenses; reasonableness of need for surgery; whether the worker suffered a consequential condition; whether an injury can have multiple casues; Held –applicant established that the injury materially contributed to the need for surgery; Murphy v Allity Management Services Pty Ltd, Rose v Health Commission NSW applied; finding in favour of the worker.
Decision date: 4 September 2020 | Member: Arbitrator Elizabeth Beilby
Claim for medical expenses; application for leave pursuant to section 289A(4) of the 1998 Act to dispute last noisy employer; where factual and medical evidence supported the worker’s claim; inferences to be drawn in absence of evidence; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services, Galdemar v Asta Enterprises Pty Ltd, Dawson t/as The Real Cane Syndicate v Dawson, Blayney Shire Council v Lobley, Raulston v Toll Pty Ltd, Australia and New Zealand Banking Group Limited v Khullar applied, Held – leave granted to respondent; respondent last noisy employer for purposes of section 17(1)(a)(i) of the 1987 Act; award for the worker in respect of the claim for medical expenses.
Decision date: 4 September 2020 | Member: Senior Arbitrator Glenn Capel
Purported claim for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act prior to 19 June 2012; whether the worker complied with sections 260 and 282 of the 1998 Act and the NSW workers compensation guidelines for the evaluation of permanent impairment, so that he was entitled to receive lump sum compensation for pain and suffering pursuant to s 67 of the 1987 when he made a claim in September 2018; Woolworths Ltd v Stafford, Goudappel v ADCO Constructions Pty Limited & Anor, ADCO Constructions Pty Ltd v Goudappel,Cram Fluid Power Pty Ltd v Green, Yildizv Fullview Plastics Pty Ltd, Frick v Commonwealth Bank of Australia,Woolworths Ltd v Wagg applied; Held - worker not entitled to award for pain as no valid claim was made prior to 19 June 2012; award for the respondent.
Decision date: 7 September 2020 | Member: Senior Arbitrator Glenn Capel
Permanent impairment compensation; lumbar spine injury accepted, right hip and cervical spine injuries in issue; injuries claimed as work-related aggravations of underlying disease processes; Held – worker suffered injury by way of work-related aggravation to her right lower hip; evidence disclosed contemporaneous complaints of right hip symptoms following the deemed date of injury; worker has not satisfied onus of proof in establishing she suffered work-related aggravation of cervical spine condition; injuries to lumbar spine and right lower hip remitted to Registrar for referral to AMS; award for the respondent on the claim for injury to the cervical spine; Kelly v Western Institute NSW TAFE Commission, Federal Broom Co Pty Ltd v Semlitch applied
Decision date: 7 September 2020 | Member: Arbitrator Cameron Burge
Permanent impairment compensation; lumbar spine injury accepted, right hip and cervical spine injuries in issue; injuries claimed as work-related aggravations of underlying disease processes; Held – worker suffered injury by way of work-related aggravation to her right lower hip; evidence disclosed contemporaneous complaints of right hip symptoms following the deemed date of injury; worker has not satisfied onus of proof in establishing she suffered work-related aggravation of cervical spine condition; injuries to lumbar spine and right lower hip remitted to Registrar for referral to AMS; award for the respondent on the claim for injury to the cervical spine; Kelly v Western Institute NSW TAFE Commission, Federal Broom Co Pty Ltd v Semlitch applied.
Decision date: 8 September 2020 | Member: Arbitrator Cameron Burge
Claim for permanent impairment compensation in respect of an undisputed injury to left index finger and disputed injury to, or condition in, the left wrist consequent upon the left finger injury: the IME retained by the worker assesses WPI as a result of both the left index finger injury and left wrist injury/condition: having regard to a “commonsense evaluation” of the evidence (Kooragang Cement P/L v Bates), finding that such evidence insufficient for the applicant to discharge the onus on him to show that he suffered a condition in the left wrist consequent upon left index finger injury; Held – award for the respondent in respect of the condition in the left wrist consequent upon the left index finger injury: finding that pursuant to section 66(1) of the 1987 Act the worker is not entitled to have his permanent impairment claim in relation to the left upper extremity referred to an AMS for assessment.
Decision date: 8 September 2020 | Member: Arbitrator Brett Batchelor
Psychological injury to teacher; background of prior claims; injury caused by action with respect to discipline; reasonable conduct defence alleged; relevance of employer’s policies and code of conduct, Northern NSW Local Health Network v Heggie, Department of Education and Training v Sinclair applied; Held – award for the respondent.
Decision date: 8 September 2020 | Member: Arbitrator Catherine McDonald
Application for reconsideration of order made on 12 August 2020 striking out these proceedings as the application to resolve a dispute was incompetent as it did not name a legal entity for the first respondent; Held – Application for reconsideration refused as worker only took steps to remedy same after strike out order and when they had filed fresh application to resolve a dispute.
Decision date: 8 September 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for incurred medical expenses and costs of and incidental to proposed triple arthrodesis surgery to left foot; whether worker sustained injury to left foot and ankle; inconsistent histories as to onset of symptoms; concurrent employment in similar work; whether disease injury or injury simpliciter; Held – worker sustained injury for the purposes of sections 4(a) and 9A of the 1987 Act; surgery reasonably necessary as a result of injury; general order for incurred medical expenses.
Decision date: 8 September 2020 | Member: Arbitrator Rachel Homan
Application by worker for reconsideration of a closed period award following AMS certification of 12 % WPI; section 350(3) of the 1998 Act; Jaffarie v Quality Castings Pty Ltd considered; Held – respondent to pay the worker’s medical and hospital expenses pursuant to section 60 in respect of injuries to the worker’s neck and right shoulder on 30 January 2015.
Decision date: 8 September 2020 | Member: Arbitrator Paul Sweeney
Dispute regarding injury to the right shoulder and claim for proposed reverse total shoulder replacement; applicant was an abattoir worker for 10 years and had worked all his life in manual labour; Held – award for the applicant pursuant to section 4(b)(ii) of the 1987 Act and on the basis of a consequential condition to right shoulder after left shoulder injury; finding that proposed surgery is reasonably necessary treatment.
Decision date: 8 September 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for permanent impairment and medical expenses for injury to neck, left shoulder and right knee; respondent relies on sections 254 and 261 of 1998 Act to dispute claim; consideration of Gregson v L & MR Dimasi Pty Ltd; Held – notice of injury was defective and inaccurate and occasioned by ignorance; failure to make claim for compensation in time required due to ignorance and worker has serious and permanent disablement; worker able to recover workers compensation benefits; referral to AMS to assess permanent impairment of neck, left shoulder and right knee; matter to be remitted back to Arbitrator to determine medical expenses that will be contingent on level of impairment determined by AMS and provisions of section 59A of the 1987 Act.
Decision date: 9 September 2020 | Member: Arbitrator John Isaksen
Medical Appeal decisions
Psychological injury; worker alleged error in assessment by the AMS under the categories of self-care, personal hygiene, social and recreational activities and social functioning in the permanent impairment rating scale; Held – AMS did not make a demonstrable error or assess on the basis of incorrect criteria; MAC confirmed.
Decision date: 3 September 2020 | Panel Members: Arbitrator Jane Peacock, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological
Appeal against 13% WPI in psychological injury case: assessment of PIRS categories challenged; worker’s submissions unsupported by evidence; assumption by worker that descriptors were criteria; Fergusonv State of New South Wales considered; concentration, persistence and pace category raised as rating incongruous with employment finding; Held – Drosd v Workers Compensation Nominal Insurer applied; travel rating lowered on factual analysis; section 323 deduction of 3/10 based on pre-existing bipolar condition and personality disorder confirmed; MAC revoked accordingly but result the same.
Decision date: 3 September 2020 | Panel Members: Arbitrator John Wynyard, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological
Worker was a schoolteacher who sustained an accepted psychological injury; appeal was remitted by the Court of Appeal after the Registrar’s Delegate had held that no ground of appeal had been made out within the meaning of section 327(4) of the 1998 Act; Held – AMS erred in characterising conduct involving solitary gambling at a club and otherwise seeing a friend as falling within the PIRS scale for social and recreational activities; parties previously requested the matter be determined on the papers and no supplementary submissions or evidence was filed; claim was reassessed on the papers by supplementing Class 3 for social and recreational activities; MAC revoked and worker reassessed at 17% WPI.
Decision date: 4 September 2020 | Panel Members: Arbitrator John Harris, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological
Worker sustained a psychological injury; statement of the worker concerning the examination by the AMS not admitted as fresh evidence; whether the examination by video link was conducted in an appropriate manner; whether the AMS discounted the effects of Globus; whether the AMS fell into error in his assessment of the PIRS categories; Held – Panel found assessment supported by AMS’s findings and other evidence; Panel found no error in assessment made; Ferguson v State of New South Wales & Ors, Parker v Select Civil Pty Ltd applied; MAC confirmed.
Decision date: 8 September 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Douglas Andrews and Dr Patrick Morris | Body system: Psychological
Work capacity dispute; suitable employment per section 32A; worker injured her left knee which led to revision surgery on previously injured ACL; worker 21 years old with experience in customer service and fast food industries; worker fit to work 24 hours per week in suitable duties; Held - that roles identified by insurer were suitable employment; interim payment direction declined.
Decision date: 11 September 2020 | Decision-maker: Delegate Parnel McAdams