Legal Bulletin No. 11

Issued 13 September 2019

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 decisions

Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff suffered injury to the cervical spine.

Decision date: 5 September 2019 | Before: Harrison AsJ

Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff suffered injury to the cervical spine.

Decision date: 9 September 2019 | Before: Harrison AsJ

Arbitral decisions

Iosefa v State of New South Wales (Western Sydney Local health District) and HealthShare NSW [2019] NSWWCC 285

Injury to both knees, shoulders and back; claim for weekly payments and s 60 expenses under the 1987 Act; worker sustained injuries while working at an industrial laundry; Kooragang applied; Arbitrator noted that the worker’s statement failed to describe back symptoms; Arbitrator not satisfied that the worker sustained any compensable injury to the back; medical evidence confirmed impingement in the right shoulder joint; Arbitrator satisfied that the worker was incapacitated by the right shoulder condition; s 32A of the 1987 Act discussed; Arbitrator satisfied that the worker could work at a bench up to 3 days a week limited to activities below the shoulder; Held – impingement syndrome was the contraction of a disease pursuant to s 4b(i) of the 1987 Act; Award for both respondents in respect of the claim for injury to the back and left shoulder; claim for injury to the applicant’s knee discontinued; award for first respondent in relation to the claim for injury to the right shoulder; second respondent to pay weekly payments and s 60 expenses under the 1987 Act.

Decision date: 29 August 2019  | Member: Arbitrator John Wynyard

AV v AW 2097/19

Psychological injury; claim for weekly compensation and medical expenses; worker asserted injury based on either s 4(a) or s 4(b)(ii) of the 1987 Act; worker’s treating GP noted severe PTSD post miscarriage prior to work injury; worker’s IME opined that workplace events were triggers to PTSD; Semlitch, Inman and Gurnhill discussed in respect of s 4(a) of the 1987 Act; Arbitrator satisfied on the balance of probabilities that the worker’s psychological condition was exacerbated and aggravated by the incidents in the workplace; Mitic discussed in relation to s 4(b)(ii) of the 1987 Act; Arbitrator noted that there were no submissions from the applicant on whether the main contributing factor to the aggravation was established; all the circumstances including clinical notes referred to other aggravating causes as well as work causes which  aggravated and exacerbated the psychological  condition; no relevant medical opinion establishing that the work causes satisfied the test of “the main contributing factor”; Held - that the ultimate test of “the main contributing factor” could be inferred from all the evidence; Arbitrator not satisfied that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological condition; Award for the respondent.

Decision date: 30 August 2019 | Member: Arbitrator John Harris

Hijazi v Bayside Council [2019] NSWWCC 287

Claim for hearing loss together with medical expenses (hearing aids) pursuant to section 60 of the 1987 Act; duration and intensity of noise exposure in dispute; definition of noisy employment discussed; Dawson considered; medical evidence prescribed a noise exposure threshold of 85abA at eight hours a day; workers medical evidence as to intensity and duration of noise exposure inconsistent; Held – award for the respondent.

Decision date: 30 August 2019 | Member: Arbitrator John Wynyard

Kato v City of Sydney [2019] NSWWCC 288

Injury to the lumbar spine and scarring (TEMSKI); claim for lump sum compensation pursuant to s 66 of the 1987 Act; deemed injury; degree of permanent impairment in issue; schedule 2, clause 2 of the 2018 amending Act discussed; worker’s IME classified the worker as DRE category III as per chapter 15 of the AMA 5; Arbitrator found no evidence as to the degree of permanent impairment to contradict the assessment the worker’s IME’s assessment and was satisfied that it was an appropriate and reliable basis on which to determine the applicant’s entitlement to lump sum compensation ; Held – respondent to pay the applicant lump sum compensation pursuant to s 66 of the 1987 Act.

Decision date: 2 September 2019 | Member: Arbitrator Rachel Homan

Sahar v Moneysharing Pty Ltd & Enterprise IT Resources [2019] NSWWCC 289

Psychological injury; whether the worker’s psychiatric condition was caused by employment; capacity in dispute; Mitic, Zickar, Dayton and Chemler discussed; Arbitrator satisfied that psychological injury followed from workplace conflict; worker’s perception of conflict was the main contributing factor to the development of disease; worker’s IME report consistent with GP clinical records; section 11A defence not satisfied; Held – respondent to pay the worker weekly compensation pursuant to ss 36 & 37 of the 1987 Act and reasonably necessary medical and treatment expenses; claim for lump sum compensation referred to an AMS.

Decision date: 2 September 2019 | Member: Arbitrator Cameron Burge

Datta v Universal Consultancy Services Pty Limited [2019] NSWWCC 290

Worker sustained chronic regional pain syndrome, facial disfigurement and psychological injury as a result of being assaulted in the course of his employment; significant impairment; injury and permanent impairment not disputed; reasonably necessary hours of domestic assistance per week; OneSteel Reinforcing Pty Ltd v Sutton considered in relation to the Commission not being bound by the rules of evidence; domestic assistance principles by reference to Diab applied; Arbitrator satisfied that the provision of 19 hours per week of domestic assistance is reasonably necessary; Held – respondent to pay the reasonable costs of domestic assistance pursuant to s 60AA.

Decision date: 3 September 2019 | Member: Arbitrator Michael Perry

Smith v Coles Supermarkets Australia Pty Limited [2019] NSWWCC 291

Psychological Injury; capacity in dispute; s 32A of the 1987 Act applied; worker submitted that because of the nature of his psychological injury, his capacity for work during the period claimed fluctuated; Arbitrator satisfied that the worker had the ability to makes reasonable decisions, consistent with his age and experience, notwithstanding that he was experiencing significant incapacity pursuant to section 33 of the 1987 Act; ss 34(2)(a), 36 and 37 applied; Held – weekly compensation and s 60 expenses awarded for the worker; matter remitted for referral to an AMS.

Decision date: 3 September 2019 | Member: Arbitrator Philip Young

Garry Blount v Penrith City Council [2019] NSWWCC 292

Psychological injury; injury in dispute; whether the injury was caused by the reasonable actions of the respondent with respect to discipline, performance appraisal or dismissal; Kooragang Cement cited as common sense evaluation of the causal chain; Arbitrator satisfied that the applicant did not suffer from a psychological injury; Alternatively, Arbitrator satisfied that the applicant’s injury was wholly or predominantly caused by the respondent’s actions; Arbitrator satisfied on the balance of probabilities that the respondent’s actions were reasonable; Arbitrator not satisfied that the delay in notifying the applicant of the outcome was unreasonable; Held- s 11A defence satisfied; award in favour of the respondent.

Decision date: 4 September 2019  | Member: Arbitrator John Wynyard

Medical Appeal decisions

MinMin v Cleaning Space (Aust) Pty Ltd [2019] NSWWCCMA 125

Injuries to the lumbar, thoracic spine and scarring; worker tripped over and struck her head against a fire door; worker submitted that the AMS failed to consider all the evidence before him, failed to comply with the Guidelines in his assessment of the lumbar spine and failed to consider ADL’s; Appeal Panel noted that the AMS’ assessment demonstrated neurological abnormality in the legs;  Appeal Panel agreed with the worker’s submissions that her injury to the lumbar spine warranted an assessment of DRE II as there had been findings of non-verifiable radicular pain, along with asymmetrical loss of motion; chapter 4.18 of the Guidelines applied; Appeal Panel of the view that a one-tenth deduction appropriate; Appeal Panel accepted the AMS’ assessment in respect of the thoracic spine and impact on ADL’s; new MAC issued.

29 August 2019 | Panel: Arbitrator Deborah Moore, Dr James Bodel and Dr Tommasino Mastroianni | Body system: lumbar spine, thoracic spine and scarring (TEMSKI)

Murphy v Summertime Chicken Pty Limited [2019] NSWWCCMA 126

Injuries to the cervical, lumbar spine and left upper extremity; worker submitted that the AMS erred in finding an additional 1% WPI for ADLs; worker also submitted that the AMS erred in attaching additional WPI for ADLs to the cervical spine; employer submitted that the findings on examination did not satisfy the requirements for DRE Lumbar Category III; worker re-examined; Appeal Panel not satisfied that the findings on examination related to the relevant criteria in Table 15.3 of AMA 5; Appeal Panel re-assessed the worker at DRE Lumbar Category II with a 2% uplift for activities of daily living; one-tenth deduction for pre-existing impairment; new MAC issued.

Decision date: 30 August 2019 | Panel: Arbitrator Ross Bell, Dr James Bodel and Dr Brian Noll | Body system: cervical spine, lumbar spine and left upper extremity

State of New South Wales – South East Sydney Area Local Health District v Burke [2019] NSWWCCMA 127

Worker suffered injuries to the left shoulder and cervical and lumbar spine during the course of her duties as a registered nurse; worker received lump sum compensation in 2012 and sought further lump sum compensation for deterioration in her condition; employer appealed the MAC on the basis that the inclusion of an assessment of the left elbow amounted to demonstrable error; Appeal Panel satisfied that as the left elbow had not been referred for assessment,  it was beyond the power of the AMS to include it as his assessment of the left upper extremity; new MAC issued.

Decision date: 30 August 2019 | Panel: Arbitrator R J Perrignon, Dr Mark Burns and Dr Roger Pillemer | Body system: cervical spine, lumbar spine and left upper extremity

Trieu v Georges Apparel Pty Ltd [2019] NSWWCCMA 128

Worker sustained injury to the left shoulder and cervical spine in her employment as a machinist with the respondent; deemed date of injury alleged on 10 July 2014; worker assessed by Dr Neil Berry, AMS, who assessed the worker to suffer from a 9% WPI;  the worker lodged an appeal against the MAC pursuant to s 327(3) of the WIM Act on the basis that the MAC contained a demonstrable error and was made on incorrect criteria; worker submitted that the AMS wrongly assessed her left shoulder internal rotation under the wrong figure of AMA 5; worker submitted that figure 16-46 of AMA 5 was the correct guide; worker further submitted that the AMS fell into error in applying Clause 2.20 of the Guidelines as the right shoulder was not “normal” and therefore did not represent an appropriate baseline; Appeal allowed; Appeal Panel accepted the worker’s submission that it was not open on the evidence before the AMS that the right shoulder was normal and therefore appropriate to be used as a baseline in accordance with Clause 2.20 of the Guidelines; both the employer’ s IME and the AMS measured a reduced range of motion in the right shoulder;  Appeal Panel satisfied that the AMS fell into error in accepting the right shoulder as normal in the light of the consistent history given to treating doctors of pain in the right shoulder; Held – new MAC issued.

Decision date: 3 September 2019 | Panel: Arbitrator William Dalley, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: left shoulder and cervical spine

Vasilic v Boral Transport Limited [2019] NSWWCCMA 129

Worker sustained injury to the left ankle, right knee, cervical spine, lumbar spine and left shoulder whilst working as a truck driver; worker was examined by Dr Berry, AMS who assessed him to suffer from a combined 12%WPI; the worker lodged an appeal against the MAC pursuant to s 327(3) of the WIM Act; worker submitted that he be re-examined as the AMS failed to undertake a full and proper assessment of the cervical spine; Samuels v Sebel Furniture Limited discussed in relation to  s 378 of the 1998 Act ; Appeal Panel noted that the worker did not produce fresh evidence pursuant to the principles set out in Samuels; Crnobrnja discussed; Appeal Panel noted that there is no requirement in the Guidelines that an AMS must reference the relevant differentiators when allocating a worker to a DRE category; MAC confirmed.

Decision date: 4 September 2019 | Panel: Arbitrator Carolyn Rimmer, Dr John Ashwell and Dr Margaret Gibson | Body system: left ankle, right knee, cervical spine, lumbar spine and left shoulder

Batshon v Sydney Trains 671/19 [2019] NSWWCCMA 130

Psychological injury; treating psychiatrist’s assessment of permanent impairment markedly differed from that of two other psychiatrists and treating Doctor; per Wingfoot’s requirement that the MAC explains the actual path of reasoning, the AMS adequately provided reasons for diagnosis; psychiatric diagnosis established and compliance with Chapter 11.42 of the Guidelines sufficiently determined; precise identification of depressive disorder bears no influence on the assessment of permanent impairment; no error in respect of diagnosis and hypothetical error and alternatively, error has not influenced the MAC certification; AMS correctly employed psychometric testing through cognitive testing in accordance with Chapter 11.6; MAC confirmed.

Decision date: 30 August 2019 | Panel: Arbitrator Paul Sweeney, Dr Julian Parmegiani,Dr Douglas Andrews |Body system: Psychological

Husband v Broken Hill City Council [2019] NSWWCCMA 131

Worker sustained injuries to both shoulders, the cervical and lumbar spine; worker employed as “gang” cleaner for Broken Hill City Council from 1980 to 10 October 2014; the worker sustained injuries due to the nature and conditions of his employment with specific work incidents in 1981 and 1984; worker pleaded deemed date of injury in October 2014; Dr Gregory Burrow AMS assessed the appellant as suffering from an 11% WPI;  AMS made a deduction of 50% pursuant to s 323(1) of the WIM Act on account of the 1981 and 1984 incidents; MAC appealed on the basis that it contained a demonstrable error pursuant to s 327(3)(b) of the WIM Act; dispute in relation to whether deduction warranted pursuant to s 323(1) of the Act; Ryder v Sundance Bakehouse applied; Held - Appeal Panel concluded  MAC contained demonstrable error; deduction to be made pursuant to s 323(1) of the Act in respect of 1981 and 1984 incidents “too difficult to determine”; deduction of 10% appropriate; MAC dated 5 June 2019 revoked.

Decision date: 2 September 2019 | Panel: Marshall Douglas Dr John Stephenson, Dr Margaret Gibson | Body system: shoulders, the cervical and lumbar spine.