Legal Bulletin No. 4

Workers Compensation non-Presidential Member Decisions

Benten v William Campbell Foundation [2021] NSWPIC 15

Preliminary point; meaning of “employment” in Schedule 3 to the 1987 Act; worker employed by the respondent but also deriving income from her own business as a clinician one day per week; insurer asserts that income from the worker’s business should not be included in calculation of the PIAWE; insurer submits “employment” in Schedule 3 is limited to contract of service/master and servant relationship; Held- dictionary definitions of “employment” include business or occupation; the term potentially therefore includes income from self-employment; context demonstrates that there is a mathematical relationship between weekly payments following injury and PIAWE; weekly payments are subject to reduction from earnings from all forms of personal exertion therefore inconsistent to calculate the PIAWE without inclusion of such earnings; conclusion is that “employment” in Schedule 3 includes self-employment for the purposes of calculation of the PIAWE; leave to apply with respect to outstanding issue of quantum.

Decision date: 11 March 2021 | Member: William Dalley

Morados v Cordina Chicken Farms Pty Ltd [2021] NSWPIC 16

Accepted left shoulder injury; neck injury disputed due to lack of objective evidence of radiculopathy; Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd and Davis v Council of the City of Wagga Wagga discussed and applied; Held- award for applicant in respect of the injury to her neck; claim remitted for assessment of whole person impairment.

Decision date: 11 March 2021 | Member: Glenn Capel

Killoran Agricultural v Ryan [2021] NSWPIC 17

Entitlement to lump sum death claim compensation under section 25(1)(a) of the 1987 Act; dependency;TNT Group 4 Pty Ltd v Halioris and Kaur v Thales Underwater Systems Pty Ltd considered and applied; Held- the deceased worker died on 13 October 2020 as a result of injuries arising out of or in the course of his employment with the applicant/employer on 13 October 2020; the first respondent was partly dependent for support on the deceased worker at the date of his death; there were no other persons dependent for support on the deceased worker; the applicant/employer is liable for the payment of lump sum compensation under section 25(1)(a) of the 1987 Act and the payment of interest under section 109 of the 1998 Act.

Decision date: 12 March 2021 | Member: Anthony Scarcella

Mitchell v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2021] NSWPIC 18

Claim for section 60 expenses for right total knee replacement; injury to left knee in 2010 accepted; consequential right knee condition disputed; where medicolegal experts not given history recorded in clinical records of an acute onset of symptoms at right knee on a plane; where documented history of poorly controlled neuropathic pain in left knee but no direct reference to altered gait in treating medical evidence;  Held – applicant sustained consequential condition at right knee; the surgery was reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.

Decision date: 12 March 2021 | Member: Rachel Homan

Morrison v Queensland Property Investments Pty Ltd [2021] NSWPIC 19

Claim for weekly benefits compensation; accepted injury to left hip, left knee, lumbar spine in May 2012; consequential conditions in right knee and right hip; accepted secondary psychological injury due to chronic pain; worker certified fit for pre-injury hours and duties with some modifications from April 2020; meeting in August 2020 to discuss duties; whether worker suffered new psychological injury; if so, whether any injury was result of reasonable action in respect of employment; Held- finding that worker continued to suffer psychological condition as a result of the original injury; incapacity following the meeting was as a result of the original injury;  award for the applicant.

Decision date: 12 March 2021 | Member: Jill Toohey

Sfuncia v Waverly Council [2021] NSWPIC 20

Psychological injury; several hostile events some in course of employment; perception of real events some episodes of exposure; Attorney General’s Department v K applied; predominate cause of injury given several episodes of exposure; Held- promotion issue but respondent’s section 11A case not established; award in favour of the applicant.

Decision date: 12 March 2021 | Member: Philip Young

AVS Security Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 21

The applicant sought review of Notice to Reimburse issued under section 145(1) of the 1987 Act;  the applicant sought orders that (a) the injured worker was not employed by the applicant at the relevant time or at all and (b) the applicant is not liable for the amount in the Notice to Reimburse;  Held – the orders sought by the applicant are refused.

Decision date: 15 March 2021 | Member: Jacqueline Snell

Borges v Woolworths Group Limited [2021] NSWPIC 22

Claim for the cost of medical treatment for injury sustained on a journey, pursuant to section 10(3)(c) of the 1987 Act, after the applicant had undergone treatment for an accepted work injury; application of section 10(3A) of the 1987 Act; Australia and New Zealand Banking Group v Khullar and Mission Australia v Eves considered; Held- there was a real and substantial connection between the applicant’s employment and the accident out of which the injury arose; award for the applicant for the cost of C5/6 anterior cervical discectomy and fusion and incidental costs; no order made for payment of Medicare as Notice has expired.

Decision date: 15 March 2021 | Member: Kerry Haddock

Goodworth v Wollondilly Shire Council [2021] NSWPIC 23

Psychological injury; claim for weekly benefits; whether applicant suffered injury; whether injury caused by reasonable actions of respondent with respect to discipline, performance appraisal and/ or redundancy; capacity – whether worker had capacity, and if so to what extent; Held- the applicant suffered a psychological injury in the course of his employment, to which his employment was the main contributing factor; Thazin-Aye v WorkCover Authority (NSW) and Attorney-General’s Department v K followed; corroboration in contemporaneous medical records is not necessary to establish injury, particularly in the context of a psychological injury: Baker v Southern Metropolitan Cemeteries Trust followed; the applicant’s injury was not wholly or predominantly brought about by the reasonable actions of the respondent; Smith v Roads and Traffic Authority of New South Wales discussed; the absence of medical evidence as to the cause of the applicant’s injury was a factor in determining whether a defence under section 11A was available; Hamad v Q Catering Ltd followed; the applicant was partially incapacitated as a result of his injury during the period claimed; respondent ordered to pay weekly benefits from 5 January 2018 to 2 January 2019.

Decision date: 15 March 2021 | Member: Cameron Burge

Jansen v Colin Smith t/as Col’s Clip Joint [2021] NSWPIC 24

Weekly benefits beyond second entitlement period; whether respondent is required to pay benefits between cessation of second entitlement period on 26 December 2017 and the issuing of a Medical Assessment Certificate certifying the degree of whole person impairment is not yet ascertainable; operation of section 39 of the 1987 Act and Clause 28C of the Workers Compensation Regulations 2016; Held- the respondent is not required to pay weekly benefits between the expiration of the second entitlement period and the issuing of the Medical Assessment Certificate; there is a temporal element in Clause 28C which must be satisfied before the Regulation operated to vitiate the operation of section 39 of the 1987 Act; Hochbaum v RSM Building Services Pty Ltd distinguished, Strooisma v Coastwide Fabrication and Erections Pty Ltd followed; award for the respondent.

Decision date: 15 March 2021 | Member: Cameron Burge

Standen v Programmed Integrated Workforce Ltd [2021] NSWPIC 25

Claim for cost of future surgery; no issue applicant suffered work-related aggravation of pre-existing lumbar spine condition; question is whether effects of that aggravation have passed and the requirement for the medically necessary surgery has been brought about by the accepted aggravation or by the underlying, non-work related condition; Held- the requirement for surgery was brought about by the work-related aggravation, the effects of which are ongoing; the respondent is ordered to pay the costs of and incidental to the proposed surgery; Federal Broom Co Pty Ltd v Semlitch discussed.

Decision date: 15 March 2021 | Member: Cameron Burge

Harris v State of New South Wales (NSW Police Force) [2021] NSWPIC 26

Section 66 and 67 claim; psychiatric injury with Police exacerbated by minor event with a later employer; Johnson considered; legal principles advanced to respondent’s medico-legal expert untenable; whether medical dispute existed to refer to AMS; whether reduction to be made for pre-2002 impairment; Held- no medical dispute as applicant accepted respondent’s assessment; attempt to ‘clarify’ respondent expert’s view rejected; 25% WPI assessment for section 66, applicant 45% most extreme case; totals reduced by 10% for pre-2002.

Decision date: 16 March 2021 | Member: John Wynyard

Stoermer v Coates Hire Operations Pty Ltd [2021] NSWPIC 27

Claim for weekly compensation for alleged back injury caused by nature of the worker’s employment; where worker did not report injury, seek medical treatment, or lose time prior to cessation of his employment for intercurrent medical condition; where respondent’s witnesses corroborate complaints of back pain by the worker while performing heavy work; where near unanimous medical evidence that worker suffered injury; Held- finding of exacerbation of pre-existing degenerative disease; award for worker on the basis of partial incapacity.

Decision date: 16 March 2021 | Member: Paul Sweeney

Hockman v Laudet Pty Ltd t/as Rydges Central Hotel [2021] NSWPIC 28

Worker suffered an injury lifting tables and claimed a short closed period of compensation; claim denied on the basis that she did not suffer injury, relying on CCTV footage and statements which were not relied on; consistent complaints from date of injury and agreement between treating doctors of location of injury; Held- award for weekly compensation and section 60 expenses.

Decision date: 17 March 2021 | Member: Catherine McDonald

Muir v CNS Marine Enterprises Pty Ltd [2021] NSWPIC 29

Claim for lump sum compensation; accepted right hip injury and consequential left hip condition; disputed consequential right knee condition; where unrelated left knee injury required total knee replacement shortly before first reports of increased right knee symptoms; Murphy v Allity Management Services Pty Ltd considered; Held- applicant sustained consequential right knee condition; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment.

Decision date: 17 March 2021 | Member: Rachel Homan