Legal Bulletin No. 25

Issued 20 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 decisions

Broadspectrum (Australia) Pty Ltd v Wills [2019] NSWSC 1797

Administrative law; judicial review; section 323(1) of the 1998 Act; where defendant had pre-existing psychiatric conditions which were being treated and were asymptomatic; where work injury resulted in psychological injuries and whole person impairment; where Medical Appeal Panel assessed percentage deduction to whole person impairment for pre-existing conditions at 20% of whole person impairment; whether error of law by not taking fact of treatment into account; whether reasons adequate for not doing so; amended summons dismissed.

Decision date: 16 December 2019 | Before: Meagher J

Kitanoski v JB Metropolitan Distributors [2019] NSWSC 1802

Administrative law; whether open to Appeal Panel to refuse to re-examine the plaintiff in circumstances where Approved Medical Assessor noted disparities in history given and effort on examination; whether Appeal Panel obliged to receive additional reports served by plaintiff after decision under review; alleged denial of procedural fairness to reject request for re-examination and additional reports sought to be relied on before Appeal Panel; summons dismissed.

Decision date: 16 December 2019 | Before: Adamson J

Arbitral decisions

Mouawad v Sydney Metro Formwork Pty Ltd [2019] NSWWCC 390

Claimant injured in fall from scaffolding fracturing his left ankle; claims for injury/consequential conditions in the lumbar and cervical spine, both shoulders and left ankle; left ankle admitted, other claims denied: Held - award for the respondent regarding the claims for both shoulders; other claims referred to AMS; Etherton considered.

Decision date: 5 December 2019 | Member: Arbitrator John Wynyard

Thompson v State of New South Wales [2019] NSWWCC 391

Psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal and/or discipline; section 11A(1); Hamad v Q Catering Limited and Northern New South Wales Local Health Network v Heggie applied; Held – respondent’s actions not procedurally fair or reasonable; worker entitled to weekly benefits and medical expenses.

Decision date: 6 December 2019 | Member: Arbitrator Rachel Homan

Antanasovski v Scania Australia Ltd [2019] NSWWCC 392

Permanent impairment claim in respect of alleged psychological injury; worker alleges aggravation of psychological condition as a result of interpersonal conflict at work; reliability of worker’s evidence; relevance of contemporaneous complaints to finding of reliability and to proof of injury; adequacy of histories recorded by medical practitioners; consideration of Paric v John Holland Pty Ltd and basis rule in psychological cases; psychometric testing; Brighten v Traino considered; Held – worker suffered psychological injury; matter remitted to the Registrar.

Decision date: 10 December 2019 | Member: Arbitrator Paul Sweeney

El-Eche v The Trustee for Dean and Adam El-Eche Trust t/as PH Seven Hills Pty Ltd [2019] NSWWCC 393

Claim for weekly payments and medical expenses; whether worker suffered injury to the lumbar spine as result of repetitive lifting, twisting and bending; whether injury aggravated or exacerbated by subsequent event; credibility of worker’s claim regarding subsequent event; Held – worker sustained disease injury as a result of employment; worker totally incapacitated for period claimed; award for reasonably necessary medical expenses.

Decision date: 10 December 2019 | Member: Arbitrator Jill Toohey

Robbins v Burkes Transport (Services) Pty Ltd [2019] NSWWCC 394

Worker suffered undisputed injuries to his cervical and lumbar spines on 6 January 2017, when an industrial pallet fell from the back of a truck onto him; impairment claim included disputed injuries to left shoulder and thoracic spine; whether “pathology” of injury relied upon by worker was caused in the injurious incident; Lyons v Master Builders Association of NSW Pty Ltd; relevance of contemporaneous evidence, and treatment records; reasoning process by experts; awards for respondent on the disputed claims and matter remitted for AMS assessment for the cervical and lumbar spines.

Decision date: 10 December 2019 | Member: Arbitrator Gerard Egan

Pearce v Edmund G & Grahame L Shepherd [2019] NSWWCC 395

Whilst climbing up into the cab of his truck, the worker’s right foot slipped on grape juice, leaving him hanging onto the truck’s hand rail dangling about one metre off the ground before he fell to the ground; section 66 of the 1987 Act lump sum compensation claim for permanent impairment of various body systems, where injury to lumbar spine, right knee, ankle and hind feet were disputed; lack of contemporaneous evidence of complaints of symptoms to the disputed body parts. Held - Arbitrator not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that worker established that there was a definite or distinct physiological change or disturbance in the worker’s lumbar spine, right knee, ankle and hind feet for the worse which, if not sudden, were at least identifiable, arising out of or in the course of his employment with the respondents.

Decision date: 11 December 2019 | Member: Arbitrator Anthony Scarcella

Taylor v Soxami Pty Ltd; Burrangong Pet Foods Pty Ltd; Burrangong Meat Processors Pty Ltd; Burrangong Abattoirs Pty Ltd (in receivership) [2019] NSWWCC 396

Application for weekly payments pursuant to section 41 of the 1987 Act; worker employed as a slaughterman; suffered admitted back injury in 1997 and admitted injury to the right ankle in 2002; worker returned to work on modified duties after each injury; abattoir closed in 2010 and worker has not worked since; underwent lumbar fusion surgery in January 2016; issues of whether the lumbar fusion was “injury related surgery”; Held – established on the evidence as well as by previous proceedings in which surgical scarring had been referred for assessment as part of a claim for lump sum compensation in respect of the 1997 injury; respondent submitted that the requirements of section 41(5) had to be established in the period immediately prior to the surgery; Held – these requirements can be satisfied at any time after injury; findings on the evidence establishing the requirements in section 41(5); award of weekly payments at the transitional rate.

Decision date: 11 December 2019 | Member: Arbitrator William Dalley

Weate v Racing NSW [2019] NSWWCC 397

Application for Assessment by an Approved Medical Specialist; injury to shoulder for which worker underwent surgery; worker seeking assessment as to whether the degree of permanent impairment is fully ascertainable; worker’s letter of claim seeks weekly benefits based on the definitions of workers with high or highest needs in sections 32A and 39 of the 1987 Act; applicant claims entitlement to weekly benefits on the basis that he is a worker with highest needs because he has not reached maximum medical improvement; definitions of “claim” and “compensation” in section 4 of the 1998 Act and “medical dispute” in section 319 discussed; Held - worker did not make a claim for compensation; there was no medical dispute; application dismissed.

Decision date: 11 December 2019 | Member: Arbitrator Brett Batchelor

Burridge v PW Russell & M A McNeil [2019] NSWWCC 398

Claim for lump sum compensation; issue in dispute degree of impairment; worker and respondent are natural persons residing in different states; discussion of Attorney-General of New South Wales v Gatsby; declined to express an opinion, agreed with approach of Arbitrator Harris in Bilal v Haider and substituted the insurer as respondent in the proceedings.

Decision date: 12 December 2019 | Member: Arbitrator Carolyn Rimmer

Medical Appeal decisions

Hand v State of NSW [2019] NSWWCCMA 180

Ambulance officer suffered PTSD as a result of a motor vehicle accident whilst driving an ambulance; appeal with respect to PIRS category of travel only; worker able to travel independently but said she was more comfortable with a support person; anxiety is symptom not impairment; Parker v Select Civil Pty Ltd; MAP confirmed.

Decision date: 5 December 2019 | Panel Members: Senior Arbitrator Catherine McDonald, Professor Nicholas Glozier and Dr Michael Hong | Body system: psychological injury

Homburg v Medusa1 Pty Ltd t/as ACG National Pty Ltd [2019] NSWWCCMA 181

Approved Medical Specialist (AMS) made no deduction under section 323 of the 1998 Act for pre-existing condition in the right shoulder despite of evidence of pre-existing degenerative disease in the right shoulder; AMS failed to provide adequate reasons for not making a deduction; MRI scan and operation report demonstrated extensive pre-existing pathology even though worker was asymptomatic prior to injury; Appeal Panel made a deduction of one-tenth pursuant to section 323 of the 1998 Act; MAP revoked.

Decision date: 3 December 2019 | Panel Members: Arbitrator Carolyn Rimmer, Dr Margaret Gibson and Dr John Ashwell | Body system: right upper extremity, left upper extremity and cervical spine

Fujitsu Australia Ltd v Khalilian [2019] NSWWCCMA 182

Psychiatric injury; employer submitted that AMS erred in his ratings in three of the PIRS categories; discussion of Parker v Select Civil Pty Ltd and Chalkias v State of New South Wales; 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: 9 December 2019 | Panel Members: Arbitrator Carolyn Rimmer,  Professor Nicholas Glozier and Dr Michael Hong | Body system: psychological injury