Legal Bulletin No. 17

Issued 25 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

Su v Osi Foods Pty Limited [2019] NSWWCC 328

Injury to lumbar spine and left wrist accepted by respondent; whether worker sustained an injury to his left shoulder; whether the worker has suffered a consequential condition affecting his lower digestive tract due to spinal surgery, spinal cord damage or intake of opioid medication; Hevi Lift (PNG) Ltd v Etherington considered and applied; Held ­- matter remitted to the Registrar for referral.

Decision date: 11 October 2019 | Member: Arbitrator John Isaksen

Dries v GGA Glass & Aluminium Pty Ltd [2019] NSWWCC 329

Injury to the lumbar spine; whether worker is entitled to expenses pursuant to section 60 of the 1987 Act; new vehicle with ramp fit out held to be curative apparatus under section 59 of the 1987 Act in circumstances of cases where required to transport mobility aids required by injured worker; Arbitrator satisfied that the new vehicle is a reasonably necessary expense; Held - award for the applicant.

Decision date: 14 October 2019 | Member: Arbitrator Jane Peacock

Gibson v Holcim (Australia) Pty Ltd [2019] NSWWCC 330

Parties settled prior proceedings by Consent; subsequent correspondence raised issues as to what monies the respondent could claim credit pursuant to section 50 of the 1987 Act; Held - respondent’s argument that applicant had been paid salary during the period covered by the Consent Orders rejected as it was inconsistent with a document prepared by it containing precise details of leave payments; Held - the respondent’s entitlement to credit for sick leave paid was limited to the amount of weekly compensation payable in any period; observations of Neilson J in Bellamy v Albury City Council applied and findings made on the correct deductable amount; Held - applicant’s application to set aside Consent Orders refused as the agreement and the amount of any credit reflected the applicant’s understanding.

Decision date: 14 October 2019 | Member: Arbitrator John Harris

Nader v A O Family Trust [2019] NSWWCC 331

Accepted injury to left hand when the applicant dropped a cabinet; whether lumbar and thoracic spines also injured in frank incident; pre-existing complaints of back pain and sciatica; lack of contemporaneous evidence linking back symptoms to the incident; other possible explanations for the applicant’s condition; Nguyen v Cosmopolitan Homes, Watson v Foxman and Onassis v Vergottis discussed; Held - Arbitrator not satisfied that applicant discharged onus of proof; no evidence of degree of permanent impairment greater than 10% for left hand; award for the respondent pursuant to section 66 of the 1987 Act.

Decision date: 14 October 2019 | Member: Arbitrator Rachel Homan

Peric v State of New South Wales (NSW Health Pathology) [2019] NSWWCC 332

Request for reconsideration of a decision as to weekly payments based upon an incorrect assumption that the parties had agreed to the length of incapacity; the extent of incapacity disputed at the hearing; Held - appropriate to reconsider given obvious nature of error; consideration of “no current work capacity” and “suitable employment”; reference to Wollongong Nursing Home v Dewar; evidence-based finding in respect of suitable employment; senior scientist employed in NSW Health field; Held - no capacity for employment in the period claimed due to psychological injury.

Decision date: 14 October 2019 | Member: Arbitrator William Dalley

Bath v Corowa RSL Limited [2019] NSWWCC 333

Disputed injury to the lumbar spine; whether lumbar spine condition consequential to an earlier ankle injury or an injury within the meaning of section 4(a) and/or section 4(b)(ii) of the 1987 Act as a result of more recent injury; whether any incapacity arises from the alleged injury; Held - lumbar spine condition not consequential to an earlier ankle injury; applicant suffered injury to the lumbar spine within the meaning of sections 4(a) and 4(b)(ii) of the 1987 Act; requirements to establish consequential condition examined; Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796; Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 discussed; Held - respondent to pay the applicant weekly compensation pursuant to section 36 and 37 of the 1987 Act.

Decision date: 15 October 2019 | Member: Arbitrator Anthony Scarcella

Seif v Trustees of the Christian Brothers [2019] NSWWCC 334

Dispute as to injury based on section 4(a), alternatively section 4(b)(ii), and sections 33 and 60 of the 1987 Act; worker’s credit in issue; evidence of lay witnesses and employer’s qualified doctor of minimal probative value; Lyons v Master Builders Association of NSW Pty Ltd, Department of Education & Training v Ireland, Kooragang Cement Pty Ltd v Bates, Rail Services Australia v Dimovski, Federal Broom Co Pty Ltd v Semlitch; Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd Murphy v Allity Management Services Pty Ltd and Jones v Dunkel, discussed and applied; Held - worker sustained section 4(a) injury and entitled to payment of medical expenses; knee surgery reasonably necessary; no order in respect of weekly compensation.

Decision date: 15 October 2019 | Member: Senior Arbitrator Glenn Capel

Smith v Blacktown City Council [2019] NSWWCC 335

Claim for three level fusion to cervical spine; worker claims that surgery results from an injury in 2003 or a disease injury (section 4(b)(ii) of the 1987 Act); application of section 4(b)(ii) of the 1987 Act to lay and medical evidence; whether employment materially contributes to need for surgery (Murphy v Allity Management); Held – employment is the main contributing factor to the aggravation of the disease; disease injury materially contributes to the need for surgery and proposed surgery is reasonably necessary; the need for surgery does not result from the 2003 injury.

Decision date: 15 October 2019 | Member: Arbitrator John Isaksen

Medical Appeal decisions

A Noble & Son Limited v Naylor [2019] NSWWCCMA 144

Appeal by employer from assessment relating to impairment of both lower extremities due to total knee replacements; appeal related to AMS did not make a deduction; evidence revealed pre-existing degeneration in both knees at time of injury; Appeal Panel determined that AMS was wrong to assume that because worker’s knees were asymptomatic at time of injury that pre-existing degeneration did not contribute to impairment of worker; Held ­- MAC revoked.

Decision date: 11 October 2019 | Panel Members: Arbitrator Marshal Douglas, Dr Drew Dixon and Dr David Crocker | Body system: right and left lower extremities

Baxter v State of New South Wales [2019] NSWWCCMA 145

Appeal pursuant to section 327(3)(b),(c) and (d) of the 1998 Act; application to admit fresh evidence declined pursuant to section 328(3) of the 1998 Act; statement of spouse addressing factual matters accepted by the AMS; Held - factual matters available prior to examination and therefore not admissible; further medical report where treating doctor asked to comment as to whether MAC shows adoption of incorrect criteria and/or demonstrable error; State of New South Wales v Ali and Lukacevic v Coates Hire Operations Pty Limited noted; Held - not additional information and not admitted; allegation of demonstrable error and incorrect criteria with respect to assessment of PIRS classes; Held - findings open to the AMS on the evidence; Glen William Parker v Select Civil Pty Limited noted; no demonstrable error or adoption of incorrect criteria; MAC confirmed.

Decision date: 14 October 2019 | Panel Members: Arbitrator William Dalley, Dr Julian Parmegiani and Professor Nicholas Glozier  | Body system: Psychological

ICM Services v Dabic [2019] NSWWCCMA 146

Multiple injuries; appeal related to assessment of both upper extremities (shoulders) and digestive system and anus; no deduction pursuant to section 323 of the 1998 Act made by AMS; Appeal Panel concluded sufficient evidence to warrant a one-tenth deduction; AMS also concluded that the haemorrhoids potentially were aggravated by medication intake and are assessable at 1%; Panel concluded this was an error since the haemorrhoids were internal and trivial and only detected on proctoscopy, therefore should be classed as 0% WPI; Held -  MAC revoked.

Decision date: 14 October 2019 | Panel Members: Arbitrator Deborah Moore, Dr John Garvey and Dr Mark Burns | Body system: Cervical Spine, right shoulder, left shoulder, upper digestive, lower digestive tract and anal disease