Legal Bulletin No. 77
This bulletin was issued on 22 January 2021
Issued 22 January 2021
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.
Extension of time to appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011; injury arising out of employment ; application of Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited; section 9A(2) of the Workers Compensation Act 1987; section 9B of the Workers Compensation Act 1987; application of Renew God’s Program Pty Ltd v Kim.
Decision date: 13 January 2021 | Before: Deputy President Michael Snell
Rejection of uncontradicted expert evidence, acceptance of expert evidence; Makita (Australia) Pty Ltd v Sprowles applied; whether error to prefer the evidence of a treating surgeon over the evidence of a medico-legal expert; Shellharbour City Council v Rigby applied; lack of complaints of symptoms prior to cessation of employment; Kooragang Cement Pty Ltd discussed.
Decision date: 14 January 2021 | Before: Acting Deputy President Elizabeth Wood
Claim for permanent impairment compensation resulting from disputed psychiatric injury; common ground that applicant suffered from a major depressive disorder; whether applicant’s treating psychiatrist assumed a history sufficiently like the facts proven that weight could be given to his opinion; Paric v John Holland (Constructions) Pty Ltd considered. Whether the applicant’s psychological disorder caused by misperception; Attorney General’s Department v K considered; Held- that the applicant’s psychological condition was a reaction to real events; finding of psychological injury; issue of impairment referred to an AMS.
Decision date: 8 January 2021 | Member: Arbitrator Paul Sweeney
Weekly benefits during second entitlement period; calculation of benefit; whether worker who had returned to work for not less than 15 hours per week but was subsequently stood down because of COVID-19 has satisfied section 37(2)1987 Act; or whether the weekly benefit should be calculated by reference to section 37(3); Held- the benefits are payable by reference to section 37(3); although the worker would have been working were it not for the pandemic, an injured worker is not entitled to ongoing benefits at the higher rate when they are working less than 15 hours per week; the respondent is to pay the worker weekly benefits from 19 June 2020 to date and continuing; the respondent is to pay the workers reasonably necessary medical and treatment expenses.
Decision date: 8 January 2021 | Member: Arbitrator Cameron Burge
Claim for consequential condition to the contra-lateral knee and lower back allowed; Ozcan v Macarthur Disability Services Limited applied; Held- claims for gastrointestinal condition and onset of Type 2 diabetes rejected on factual grounds.
Decision date: 8 January 2021 | Member: Arbitrator John Wynyard
Claim for compensation for contralateral shoulder condition; whether a frank injury; whether a disease injury; whether a consequential injury; Murphy v Allity Bros applied; Held- evidence insufficient to establish assumptions relied upon by applicant workers experts as to alternative claims for injury; consensus that two failed surgical interventions on accepted injury would have compromised load carrying capability of contralateral shoulder; award applicant for both shoulders; matter remitted to AMS.
Decision date: 8 January 2021 | Member: Arbitrator John Wynyard
Dispute as to whether applicant was a worker; tax invoices in company name submitted with GST; applicant worked as a painter elsewhere; BAS statement and tax returns included deductions for expenses; business had workers compensation policy, advertised online and had website; funds paid into business bank account; On Call Interpreters and Translators Agency Pty Ltd v Commissioner for Taxation (No 3), Hollis v Vabu Pty Ltd, Drive Recruit Pty Ltd v Back, Secretary Department of Family and Community Services v Bee andMalivanek v Ring Group Pty Ltd applied; Held- applicant was not a worker; award for the respondent.
Decision date: 8 January 2021 | Member: Senior Arbitrator Glenn Capel
Applicant worker injured when he was assaulted by two passengers in the taxi cab he was driving; dispute as to whether he was deemed a worker pursuant to Schedule 1 Cl 10 of the 1998 Act; whether applicant was employed by the first or second respondent or the third respondent, all of whom were uninsured; Bolton v Ibrahim and Dimitrikakis considered. Held- worker was employed by the first respondent at the time of the injury; that applicant sustained injuries to the right lower extremity and a primary psychological injury; matter referred to AMS for assessment of permanent impairment as a result of injury.
Decision date: 11 January 2021 | Member: Arbitrator Carolyn Rimmer
Claim for weekly benefits, medical and related treatment expenses; the respondent disputes alleged psychological injury with deemed date of injury of 8 February 2020; respondent raised defence under section 11A of the 1987 Act in the alternative; Held – the applicant sustained psychological injury arising out of or during the course of his employment with the respondent; the applicant’s employment with the respondent was a substantial contributing factor to injury; the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal, discipline and/or demotion; the applicant has no current capacity for work since 8 February 2020 and has entitlement to weekly benefits payable under sections 36, 37 and 40 of the 1987 Act; the applicant requires medical and related treatment as a consequence of the psychological injury he has sustained and the respondent is to pay the applicant’s medical and related treatment in accordance with section 60 of the 1987 Act; the applicant has an entitlement to costs and the respondent is to pay the applicant’s costs as agreed or assessed; the matter is certified as complex and a 20 percent uplift on costs for both parties is recommended.
Decision date: 12 January 2021 | Member: Arbitrator Jacqueline Snell
Psychological injury; section 11a issue only; performance appraisal and reasonable action; applicant raised handover concerns and was asked to attend meeting; not described as performance appraisal and occurring 16 days into employment; no agenda, no support person offered; uncertainty regarding purpose of the meeting; Held- respondent has not discharged the onus; meeting not a performance appraisal and on particular facts respondent’s action not reasonable; award in favour of the applicant.
Decision date: 12 January 2021 | Member: Arbitrator Phillip Young
Claim for medical and related treatment expenses, in particular the cost of surgical treatment in the nature of L3/4 interbody fusion; the respondent denied the applicant sustained injury to his low back arising out of or during the course of his employment with the respondent; Held – the applicant sustained injury to his low back on 21 August 2015 and 2 August 2018 arising out of or during the course of his employment and the applicant’s employment with the respondent was the main contributing factor to injury; the applicant did not sustain injury to his low back on 13 February 2020 arising out of or during the course of his employment with the respondent; the applicant requires medical and related treatment as consequence of the injury he sustained to his low back on 21 August 2015 and 2 August 2018 and the proposed treatment in the nature of L3/4 interbody fusion is reasonably necessary treatment for injury sustained on 2 August 2018.
Decision date: 12 January 2021 | Member: Jacqueline Snell
Medical Appeal decisions
Psychological injury; appellant worker alleged the AMS did not have regard to the other evidence that was before him as to activities undertaken by the worker in relation to an Airbnb; AMS required to make independent assessment that has due regard to the other evidence before the AMS and is not to rely on self-report alone; Held - Panel satisfied as to error and required a re-examination; MAC revoked.
Decision date: 8 January 2021 | Panel Members: Arbitrator Jane Peacock, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological injury