Legal Bulletin No. 23

Issued 6 December 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.

District Court decision - Work Injury Damages

Beller v Rocla Pty Ltd [2019] NSWDC 616

Work injury damages; limitation of actions; discoverability; personal injury; when plaintiff “ought to know” facts; verdict for the plaintiff in the sum of $282,411.63.

Decision date: 1 November 2019 | Before: Scotting DCJ

Arbitral decisions

Yan v Sydney Harbour Marriott Hotel Circular Quay [2019] NSWWCC 373

Claim for weekly payments and medical expenses; worker claims right plantar fasciitis condition caused or aggravated by prolonged walking and standing at work; Held – worker sustained disease injury within the meaning of section 4(b)(i) of the 1987 Act; determination of periods of total and partial incapacity; application of “no current work capacity” and “suitable employment” in section 32A of the 1987 Act; Held – worker awarded three months of weekly payments for no current work capacity and thereafter a weekly payment for partial incapacity, plus award for medical expenses for treatment of injury.

Decision date: 18 November 2019

Date of Amendment: 27 November 2019 | Member: Arbitrator John Isaksen

Robins v Secretary, Department of Customer Services [2019] NSWWCC 374

Claim for lump sum compensation where injury to lumbar spine was disputed; Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, Kooragang Cement Pty Ltd v Bates applied; Comcare v Martin discussed; Held – pursuant to section 4(b)(ii) of the 1998 Act, the worker sustained injury to her lumbar spine with her employment being the main contributing factor to the aggravation of the disease.

Decision date: 22 November 2019 | Member: Senior Arbitrator Josephine Bamber

Tierney v Evalast Fencing Pty Ltd (Deregistered) & Ors [2019] NSWWCC 375

Claim for lump sum compensation and treatment expenses, main issue whether applicant was a worker employed by the first respondent; Held – worker employed by uninsured first respondent and pursuant to section 20 of the 1987 Act, the third respondent is liable as the principal to pay the compensation awarded to the worker; Stevens v Brodribb Sawmilling Co Pty Ltd, On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3), Hollis v Vabu Pty Ltd considered.

Decision date: 25 November 2019 | Member: Senior Arbitrator Josephine Bamber

Ward v St Mary’s Sand & Soil Pty Ltd [2019] NSWWCC 376

Quantum of weekly payments; section 37(3) of the 1987 Act; whether worker had a current work capacity; no issue of principle; application of Wollongong Nursing Home Pty Ltd v Dewar; Held - award for the worker pursuant to section 37(3) of the 1987 Act; award for the worker in respect of section 60 medical expenses.

Decision date: 25 November 2019 | Member: Arbitrator Paul Sweeney

Meremere v Symbion Health Limited [2019] NSWWCC 377

Claim for bariatric surgery by worker following injury in left ankle and significant weight gain post-injury; Held - that the proposed bariatric surgery was reasonably necessary treatment as a result of the injury to the left ankle.

Decision date: 26 November 2019 | Member: Arbitrator Carolyn Rimmer

Medical Appeal decisions

Juarez v Optus Administration Pty Ltd [2019] NSWWCCMA 171

AMS assessment of cervical and lumbar spines; appeal alleges demonstrable error in assessment cervical spine; Held - error found, re-examination by Panel; original MAC revoked, and new MAC issued finding radiculopathy established under Chapter 4.27 of NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed.

Decision date: 22 November 2019 | Panel Members: Senior Arbitrator Josephine Bamber, Dr Roger Pillemer and Dr Ross Mellick | Body system: cervical spine, lumbar spine

Secretary, Department of Industry v Nesci [2019] NSWWCCMA 172

Psychological injury; employer submitted AMS erred by not adopting correct approach to disregard secondary psychological injury; discussion of Mercy Connect Limited v Kiely; MAC confirmed.

Decision date: 25 November 2019 | Panel Members: Arbitrator Marshal Douglas,  Dr Julian Parmegiani and Dr Patrick Morris | Body system: psychological injury

Lecopoulos v Draft FCB Sydney Pty Ltd [2019] NSWWCCMA 173

AMS assessed worker at 15% WPI for each lower extremity from knee replacements and made a 1/10th deduction pursuant to section 323(2) of the 1998 Act; injury to the foot assessed at 6% WPI with no section 323 deduction; Held - the right knee x-ray taken six months after the injury showed extensive pre-existing degenerative changes; the AMS, when applying the statutory deduction of one-tenth, failed to consider whether the deduction was at odds with the available evidence and failed to provide adequate reasons; State of New South Wales v Kaur applied; on re-assessment it was accepted that the pre-existing condition was bilateral and extensive and contributed to the need for knee replacements; worker’s medical evidence otherwise failed to address pre-existing pathology and was of no assistance; MAC revoked and three-tenth deduction in respect of impairments of knees made pursuant to section 323; no error found with respect to assessment of foot.

Decision date: 26 November 2019 | Panel Members: Arbitrator John Harris, Dr Margaret Gibson and Dr Brian Noll | Body system: right lower extremity, left lower

Savage v That’s Power Pty Ltd t/as Powertruss [2019] NSWWCCMA 174

Whether assessment made on the basis of incorrect criteria; whether demonstrable error on face of the MAC; grounds of appeal; whether AMS erred in making section 323 of 1998 Act deduction to the assessment comprising “apportionment” of 10% WPI based on DRE Lumbar Category III adopted from previous surgery; Held - demonstrable error on face of the MAC in method of assessment; proper deduction one-tenth pursuant to section 323(2) applied; Cole v Wenaline Pty Ltd; Fire & Rescue NSW v Clinen; Vitaz v Westform (NSW) Pty Limited applied; MAC revoked.

Decision date: 26 November 2019 | Panel Members: Arbitrator Ross Bell,  Dr Margaret Gibson and Dr Mark Burns | Body system: lumbar spine, scarring (TEMSKI)

Henderson v Secretary, Department of Education NSWWCCMA 175

Psychological injury; appellant worker alleged error in assessment by the AMS under each of the categories in the Permanent Impairment Rating Scale; Held - Appeal Panel satisfied that the AMS did not make a demonstrable error or assess on the basis of incorrect criteria; MAC confirmed.

Decision date: 27 November 2019 | Panel Members: Arbitrator Jane Peacock, Dr Patrick Morris and Dr Douglas Andrews | Body system: psychological injury

Registrar decision

Dawson v Harvey Mechanical Installation [2019] NSWWCCR 6

Gatekeeper decision under section 327 of the 1998 Act; ground of appeal not made out; traumatic brain injury; whether AMS made a finding of injury; procedural fairness; whether AMS obliged to give parties an opportunity to provide evidence; Held - AMS had not made a finding of injury; Held - discussion of AMS regarding a possibly unexplored vitamin deficiency was not a critical issue; no breach of procedural fairness; appeal not to proceed.

Decision date: 25 November 2019 | Delegate: Parnel McAdam