Legal Bulletin No. 14

Issued 4 October 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.

Arbitral decisions

Cui v Unity International Cargo Pty Ltd [2019] NSWWCC 305

Work Capacity Decision in 2019 where insurer increased the applicant’s PIAWE; Matter commenced as an Application for Expedited Assessment, but transferred to the Commission to be dealt with as a Form 2 Application due to the limitation imposed in s 298 of the 1998 Act. Arbitrator determined the PIAWE pursuant to  ss 36 and 37 of the 1987 Act in circumstances where s 44C(2) of the 1987 Act applied.

Decision date: 19 September 2019 | Member: Senior Arbitrator Glenn Capel

Delinicolis v Melissa Confectionary Pty Ltd [2019] NSWWCC 306

Disputed injury to the cervical spine as a result of the nature and conditions of employment; delay in reporting and investigation of symptoms; violent assault; respondent’s expert’s clinical findings different to those of treating practitioners; Arbitrator satisfied that worker sustained injury to his cervical spine in the nature of an aggravation of underlying degenerative pathology; matter remitted to Registrar for referral to an Approved Medical Specialist to assess degree of permanent impairment.

Decision date: 19 September 2019  | Member: Arbitrator Rachel Homan

Simpson v Ausgrid [2019] NSWWCC 307

Injury to left knee and lumbar spine; claim for lump sum compensation under the 1987 Act; worker sustained injury while climbing out of a manhole; Kooragang applied; Arbitrator not satisfied that the worker was either limping or had altered his gait as a consequence of the left knee injury; Held - that worker failed to establish that the medical condition in the lumbar spine resulted from the injury to the left knee; Assessed impairment of left lower extremity did not exceed the threshold for permanent impairment compensation so matter could not be remitted to the Registrar to refer to an AMS; Proceedings dismissed.

Decision date: 19 September 2019  | Member: Arbitrator Carolyn Rimmer

Burton v Queanbeyan Racing Club [2019] NSWWCC 308

Claim for lump sum compensation pursuant to section 66 of the 1987 Act; worker suffered injury from a fall from horse while performing trackwork in 2013; injury to the right hip diagnosed on attendance at hospital; lumbar spine injury first suggested in 2016; consideration of medical records; reference to Mason v Demasi; discussion of onus of proof where no evidence of alternative cause; reference to Nolan v Dept. of Education and Training; Held - worker suffered injury to the lumbar spine in the course of her employment and further suffered a consequential condition affecting the peripheral nerves in the right and left lower extremities; matter remitted for referral to an AMS.

Decision date: 20 September 2019  | Member: Arbitrator William Dalley

Mioc v Boldway Pty Ltd (t/as Boldway Painting Services) [2019] NSWWCC 309

Disputed consequential conditions to right wrist and upper gastrointestinal tract; Kooragang v Bates (1994) 10 NSWCCR 796 and JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 applied; Arbitrator satisfied that worker sustained consequential conditions to disputed body parts; matter remitted to Registrar for referral to an Approved Medical Specialist to assess degree of further permanent impairment.

Decision date: 23 September 2019 | Member: Arbitrator Rachel Holman

Ozcan v Macarthur Disability Services [2019] NSWWCC 310

Claim for aggregation of three injuries assessed by AMS; AMS directed to apportion between the three injuries. Argument that first injury materially contributed to the later two injuries rejected; Edmed considered; AMS finding of combined value WPI rejected, as not part of the referral; award respondent as applicant not able to demonstrate WPI greater than 10%.

Decision date: 23 September 2019 | Member: Arbitrator John Wynyard

Alphenaar v Wollongong City Council [2019] NSWWCC 311

Multiple back injuries with one employer; prior to 1 January 2002 and subsequent; consent referral to AMS for assessment pursuant to section 66 of two injuries to the lumbar spine after 1 January 2002; parties agreed the two injuries are to be assessed together; one impairment assessed; dispute as to whether the lump sum is calculated by reference to the second date of injury only or by apportionment between the two dates of injury; discussion of Sutherland Shire Council v Baltica General Insurance and Sidiropoulos v Able Placements; Held: lump sum is to be calculated by reference to the maximum figure at the later date of injury applying the two-step process in Sutherland Shire Council; liability for the payment apportioned between injuries.

Decision date: 25 September 2019 | Member: Arbitrator William Dalley

Bilal v Joseph Haidar [2019] NSWWCC 312

Parties are residents of different States; Held- no jurisdiction to hear an action between individuals who are residents of different States per s 75(iv) and s 77 of the Constitution: Attorney General for New South Wales v Gatsby [2018] NSWCA 254, Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146, Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50 and Burns v Corbett [2018] HCA 15 applied. Workers Compensation Nominal Insurer as the respondent pursuant to the provisions of the Civil Liability (Third Party Claims Against Insurers Act) 2017 and/or the Workers Compensation Regulations substituted in proceedings. Discussion of various provisions of the 1987 Actand observations of Aickin J in Registrar of the Workers Compensation Commission of NSW v National Employers’ Mutual General Insurance Association Ltd applied as to functions and powers of the insurer in the workers compensation scheme.

Decision date: 25 September 2019 | Member: Arbitrator John Harris

Prince v Seven Network (Operations) Limited [2019] NSWWCC 313

Whether applicant a worker or deemed worker when a contestant on a reality television show; whether applicant suffered an injury in the course of or arising out of employment; indicia of employment relationship; On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation (No 3) [2011] FCA 366; Hollis v Vabu Pty Limited [2001] HCA 44; Malivanek v Ring Group Pty Limited [2014] NSWWCCPD 4 applied; Held: applicant was a worker who was paid a weekly income and allowance in circumstances where the respondent exercised a high degree of control over her activities; applicant suffered psychological injury as a result of deterioration of relationships within the workplace and her portrayal by the respondent on television and social media; employment both the main contributing factor and substantial contributing factor to injury.

Decision date: 25 September 2019 | Member: Arbitrator Cameron Burge

Medical Appeal decisions

Swift v State of NSW (NSW Police Force) [2019] NSWWCCMA 135

Psychological injury; challenge to four PIRS categories; no errors made by AMS;  appellant’s complaint essentially a mere disagreement with the MAC assessment of 7% WPI; appellant’s medical evidence very old, and her circumstances had changed; MAC confirmed.

Decision date: 19 September 2019 | Panel: Arbitrator Deborah Moore, Dr Michael Hong and Dr Julian Parmegiani | Body system: Psychological

Whyte v Winifred West Schools Limited [2019] NSWWCCMA 136

Appeal from assessment of right and left shoulders and scarring; whether approved medical specialist failed to have regard to relevant evidence; whether failed to make allowance for ADL’s; whether scarring fit descriptors for Class 1 impairment; MAC confirmed.

Decision date: 19 September 2019 | Panel: Arbitrator R J Perrington, Dr Margaret Gibson and Dr John Brian Stephenson | Body system: Upper extremities and scarring

Lismore City Council v Elliot [2019] NSWWCCMA 137

Prior complying agreement in 2008 where parties agreed impairment for separate injuries in 2003 and 2005. Subsequent surgeries to lower back resulting in significantly higher impairment; AMS found entire impairment due to 2005 injury with 10% deduction pursuant to s 323; Held - Argument that AMS erred in failing to find some impairment due to 2003 injury rejected as there is no estoppel in charging situation: O’Donel v Commission for Road Transport & Tramways, Rail Services Australia v Dimovski applied; Held - AMS erred by adding and not combining modifiers due to multiple surgeries under Table 4.2 of the fourth edition guidelines: Robbie v Straburger Enterprises Pty Ltd applied. Held - No error in application of statutory deduction of 10% observations of Gleeson JA in Vannini v Worldwide Demolitions Pty Ltd that a finding as to the deductible proption involves matters of degree and impression; Appeal Panel opined that the degree of deduction was open to the AMS. MAC revoked.

Decision date: 25 September 2019 | Panel: Arbitrator John Harris, Dr Drew Dixon and Dr Brian Noll | Body system: Cervical spine, lumbar spine and right upper extremity (shoulder)