Legal Bulletin No. 24

Issued 13 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.

Supreme Court decision

Cavar v Workers Compensation Commission [2019] NSWSC 1758

Appeal; whether the Judicial Registrar of the District Court erred in dismissing the proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW); Whether the amended statement of claim discloses a cause of action against the named defendants; leave to appeal refused

Decision date: 5 December 2019 | Before: Emmett AJA

Arbitral decisions

Jarman v Vincentia Gold Club Limited [2019] NSWWCC 378

Section 60 expenses; causation and reasonable necessity for proposed surgery; whether the injury is a material contribution to the need for surgery at additional two levels not seen in imaging after incident of injury; long period from time of injury in 1999; reasonable necessity of surgery; Murphy v Allity Management Services Pty Ltd ; Comcare v Martin; Kooragang Cement Pty Ltd v Bates; March v Stramare (E & M H) Pty Limited ; Flounders v Millar considered.

Decision date: 28 November 2019 | Member: Arbitrator Ross Bell

McKell v Woolworths Limited [2019] NSWWCC 379

Psychological injury; section 11A of the 1987 Act; performance appraisal; definition thereof in Irwin v Director-General of School Education; whether respondent’s actions with respect to performance appraisal were reasonable; capacity of worker for suitable employment; award in favour of worker for weekly benefits and for section 60 expenses; matter referred to AMS for assessment of permanent impairment as a result of injury.

Decision date: 28 November 2019 | Member: Arbitrator Brett Batchelor

Smith v Scott Boxsell Transport Pty Ltd [2019] NSWWCC 380

Accepted injury to the left upper extremity (shoulder) on 28 February 2018; worker claimed additional injury to the cervical spine and a consequential injury to the right shoulder; no evidence of complaints of any neck injury until after the worker saw his IME; no evidence of right shoulder complaints; treating doctors only recorded left shoulder injury; award for the respondent in respect of the cervical spine and right upper extremity; the permanent impairment dispute in respect of the left upper extremity (shoulder) remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment.

Decision date: 28 November 2019 | Member: Arbitrator Deborah Moore

Bradbury v Livebetter Services Limited [2019] NSWWCC 381

Psychological injury; whether accepted injury was wholly or predominantly caused by reasonable actions with respect to performance appraisal and/ or discipline; issue in dispute related only to reasonableness of the respondent’s conduct. Held - respondent’s conduct was not reasonable in the circumstances; Director General, Department of Education and Training v Pembroke discussed;  Irwin v Director-General of Education and Commissioner of Police v Minahan followed.

Decision date: 29 November 2019 | Member: Arbitrator Cameron Burge

Duff v Helicopter Aerial Surveys Pty Limited [2019] NSWWCC 382

Section 9AA(3) of the 1987 Act whether employment connected with NSW; section 9AA(3)(c) respondent’s principal place of business in Australia; whether sufficient evidence to establish place of business in NSW; nature of business conducted; principal out of Australia 50% of time; Held - employment connected to NSW; respondent’s principal place of business in Australia in NSW; Martin v R J Hibbens Pty Ltd; Workers Compensation Nominal Insurer v O’Donohue; Tamboritha Consultants Pty Ltd v Knight considered.

Decision date: 2 December 2019 | Member: Arbitrator Ross Bell

Smith v Brambles Limited [2019] NSWWCC 383

Section 60(5) application for surgery to cervical spine; injury accepted for shoulder but denied for cervical spine; Held – multiple references in medical evidence to subaxial cervical spine over many years supported expert opinion as to injury, consideration of regulation 44 of the Workers Compensation Regulation 2016; prohibition not applicable to expert opinion obtained regarding a different claim or dispute.

Decision date: 2 December 2019 | Member: Arbitrator John Wynyard

Rafique v Aldridge Traffic Systems Pty Ltd [2019] NSWWCC 384

Permanent impairment compensation; accepted lumbar spine injury, consequential condition to cervical spine in issue; Moon v Conmah and Kumar v Royal Comfort Bedding considered; Held - worker suffered consequential condition to cervical spine owing to accepted lumbar spine injury; matter remitted to Registrar for referral to Approved Medical Specialist to assess permanent impairment of lumbar and cervical spine.

Decision date: 3 December 2019 | Member: Arbitrator Cameron Burge

Yates v NSW Rural Fire Service Association Incorporated [2019] NSWWCC 385

Claim for lump-sum compensation based upon alleged injury to the cervical, thoracic and lumbar spine and impairment of mental status resulting from injury to the brain in a motor vehicle accident in May 2009; respondent admitted spinal injuries but disputed brain injury; worker suffered ruptured cerebral aneurysm almost 6 months after the subject accident; factual dispute as to loss of consciousness in the subject accident as well as subsequent history of severe headaches; submissions of both parties addressed whether there was injury to the brain and whether that brain injury led to the subsequent ruptured aneurysm and intracranial bleeding; Held - loss of consciousness was established which demonstrated that injury to the brain had occurred; the consequences of that injury are matters of “medical causation” and were appropriately to be decided by the Approved Medical Specialist in accordance with the comments of Emmett JA in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd at [109].

Decision date: 3 December 2019 | Member: Arbitrator William Dalley

Ibrahim v E Masonry Contracting (NSW) Pty Ltd [2019] NSWWCC 386

Claim for consequential condition to left knee as a result of altered gait and overcompensation due to agreed right knee injury; claim for proposed surgery; Held – the worker sustained a consequential condition in his left knee and pursuant to section 60 of the 1987 Act proposed arthroscopic surgery was reasonably necessary treatment; respondent to pay cost of surgery, subject to the operation of section 59A of the 1987 Act.

Decision date: 4 December 2019 | Member: Senior Arbitrator Josephine Bamber

Maguire v Deaf Society of NSW [2019] NSWWCC 387

Claim for lump sum compensation for physical and psychological injuries under section 66 of the 1987 Act; worker employed as a sign language interpreter alleged to have suffered injuries to her neck and left shoulder and a primary psychological injury as a result of the nature and conditions of her employment; respondent conceded worker suffered physical injury to her neck and left shoulder; Held – satisfied worker suffered a primary psychological injury under section 4(b)(i) of the 1987 Act; assessment of medical and expert opinion evidence on causation; satisfied worker suffered a primary chronic adjustment disorder; satisfied work was a main contributing factor the disorder; issue of whether the disorder has resolved is a matter for an AMS; Jaffarie v Quality Castings Pty Limited; matter remitted to Registrar for referral to AMS.

Decision date: 4 December 2019 | Member: Arbitrator Nicholas Read

Meireles v Greenhills Child Care Centre Incorporated [2019] NSWWCC 388

Claim for compensation under section 60 of 1987 Act for costs of bilateral knee realignment surgery; significant pre-existing pathology; knees aggravated in fall at work; whether aggravation ceased; Held – need for treatment arose as a result of injury; Murphy v Allity Management applied; respondent to pay the costs of and incidental to the proposed surgeries.

Decision date: 4 December 2019 | Member: Arbitrator Rachel Homan

Roche v The Trustee for V & C Hyland Trust & the Trustee for Lawrence Family Trust t/as Bettaframe & Truss [2019] NSWWCC 389

Injury to left shoulder and claimed condition in right shoulder consequent upon left shoulder injury; the respondent did not dispute separate frank injuries to left and right shoulders but disputed that impairments in respect of each shoulder could be aggregated; finding that injury to left shoulder caused the worker to overuse his right shoulder which materially contributed to the need for surgery in the right shoulder and permanent impairment therein; Kooragang Cement Pty Ltd v and Murphy v Allity Management Services Pty Ltd referred to; matter remitted to Registrar for assessment of WPI as a result of injury to the left shoulder on 20 January 2016 and condition in right shoulder consequent upon injury to the left shoulder on 20 January 2019.

Decision date: 4 December 2019 | Member: Arbitrator Brett Batchelor

Medical Appeal decisions

State of NSW v Brown [2019] NSWWCCMA 176

Referral to AMS for multiple body parts and injuries both pre and post January 2002; failure to make any section 323 deduction; application of Drosd v Workers Compensation Nominal Insurer; errors corrected; MAC revoked

Decision date: 28 November 2019 | Panel Members: Arbitrator Deborah Moore, Dr Margaret Gibson and Dr John Brian Stephenson | Body system: right lower extremity and left lower extremity

Qantas Airways Limited v Lambropoulos [2019] NSWWCCMA 177

Appeal on grounds of demonstrable error and incorrect criteria because; (a) the AMS accepted that the worker had evidence of radiculopathy; (b) the AMS did not review and comment on the medical evidence in its entirety, and (c). the AMS failed to make an appropriate section 323 deduction for a prior injury; Western Sydney Local Health District v Chan,Matthew Hall Pty Ltd v Smart, Cole v Wenaline Pty Limited and Vitaz v Westform (NSW) Pty Ltd considered and applied; Held -  finding of radiculopathy consistent with the evidence; no requirement to comment on all of the medical evidence; section 323 deduction in accordance with the Guidelines and the authorities; no error on the part of the AMS; MAC confirmed.

Decision date: 29 November 2019 | Panel Members: Senior Arbitrator Glenn Capel, Dr Philippa Harvery-Sutton and Dr John Brian Stephenson | Body system: back, right shoulder and arm, left shoulder and arm, gastrointestinal tract

Vaughan v State of New South Wales (NSW Police Force) [2019] NSWWCCMA 178

Challenge to PIRS category of concentration, persistence and pace (CPP) and claimed failure by the AMS to assess “a treatment allowance”; the AMS assessed a Class 2 rating for CPP; open on all the evidence to rate a Class 2, not 3 as submitted by the appellant; the AMS did not add any percentage in respect of treatment however, in accordance with the Guidelines, the AMS was not obliged to add a percentage in circumstances where there was simply no evidence of substantial, let alone total, elimination of the appellant’s impairment; Held - no errors made; MAC confirmed.

Decision date: 4 December 2019 | Panel Members: Arbitrator Deborah Moore, Dr Michael Hong and Dr Julian Parmegiani  | Body system: right lower extremity, left lower extremity

Kempsey Shire Council v Delforce [2019] NSWWCCMA 179

Allegation of error and incorrect criteria in assessing deduction pursuant to section 323 of the 1998 Act; referral of injury to the cervical spine on 4 December 2002; referral specifically noted that injury to the cervical spine attributable to the nature and conditions of work had been deleted from the claim; AMS unable to identify injurious event on nominated date; conflated injury on nominated date with earlier condition related to performance of work tasks resulting in failure to consider whether nature and conditions related pathology constituted previous injury or pre-existing condition; deduction of one-tenth pursuant to section 323; error established in failing to consider the extent to which pathology due to nature and conditions of employment may have constituted previous injury or pre-existing condition; worker able to perform work tasks up to nominated date of injury despite complaints of neck pain; significant increase in the level of symptoms on nominated date suggests this was a substantial cause of impairment; difficulty in establishing extent to which previous injury and/or pre-existing condition contributed to impairment; deduction of one-tenth considered appropriate on the evidence; MAC confirmed.

Decision date: 22 November 2019 | Date of amendment: 4 December 2019 | Panel Members: Arbitrator William Dalley, Dr Drew Dixon and Dr Mark Burns| Body system: cervical spine