Legal Bulletin No. 4

Issued 26 July 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

Brand v Millennium High Tech Holdings Pty Ltd [2019] NSWWCC 240

Whether the applicant suffered an injury to the neck, right upper extremity (shoulder, wrist and peripheral nerve) and consequential condition (overuse injury) to the left upper extremity (wrist); inconsistency between statement evidence and medical histories recorded in clinical notes; Arbitrator satisfied that the work required of the applicant was sufficiently physical and placed repeated strain on the neck and right arm; Arbitrator satisfied that the contemporaneous records of the physiotherapist corroborate the applicant’s evidence that she experienced an onset of symptoms following the work activities; Arbitrator noted that given the extent of the right arm injury, it is reasonable to infer that the applicant favoured her left arm to undertake both work and daily activities of living; award for the applicant on the allegation of injury to the neck, right arm (shoulder and wrist) and consequential condition to the left wrist; Arbitrator satisfied that the injury was a “disease” type injury within the meaning of s 4(b)(i) of the 1987 Act; date of injury modified to 15 June 2016 (deemed); matter remitted to the Registrar for referral to an AMS.

Decision date: 12 July 2019 | Member: Arbitrator Nicholas Read

Brassington v Blacktown City Council [2019] NSWWCC 241

Maintenance worker injured knee in motor vehicle accident; worker claimed employment aggravated condition; whether applicant sustained injury to right knee as a result of nature and conditions of employment; whether proposed right total knee replacement surgery reasonably necessary and need for surgery results from nature and conditions of employment; applicant submitted no break in chain of causation in need for surgery consistent with Purkiss v Crittenden, relying on medical evidence; respondent submitted insufficient evidence to establish knee pain caused by workplace aggravation of condition, relying on Makita (Aust) Pty Ltd v Sprowles; issues of causation and reasonableness intertwined; question for Arbitrator concerns whether treatment make worker better: Bartolo v Western Sydney Area Health Service; Arbitrator held there was no novus actus interveniens that broke chain of causation between work and pathology; Arbitrator held worker sustained injury as a result of nature and conditions of employment and that proposed surgery was reasonably necessary; award for applicant.

Decision date: 12 July 2019 | Member: Arbitrator Rachel Homan

Peric v State of New South Wales (NSW Health Pathology) [2019] NSWWCC 242

Psychological injury arising from employment as hospital laboratory manager; calculation of pre-injury average weekly earnings and amount of entitlement to s 44C weekly payments; applicant submitted employment worksheet incomplete as it did not make provision for days when applicant absent from work due to injury; Arbitrator held that the payslips, consent award and earnings report established that applicant had not worked for at least 30 weeks in the 52 weeks prior to the deemed date of injury; respondent submitted applicant altered his hours and s 44D relevant period should include the weeks off work under s 44D(2); Arbitrator rejected this submission based on lack of evidence to establish anything other than absence due to earlier employment-related psychological injury; Arbitrator not satisfied that applicant had voluntarily withdrawn from employment and was satisfied that calculations under s 44C(1)(a) should exclude weeks of unpaid leave; s 60 medical expenses awarded; award for applicant.

Decision date: 16 July 2019 | Member: Arbitrator William Dalley

Tabet v McDonalds Australia Limited [2019] NSWWCC 243

Accepted injury to right elbow; applicant claimed that right shoulder injury was either caused by same incident that produced right elbow injury or was a consequential condition of the right shoulder injury from use of sling; whether entitlement to s 60 medical expenses established; there was medical opinion that there was no shoulder injury at time of workplace incident; Arbitrator held that heavy work did have deleterious effect on right shoulder but the aggravation’s effects on need for surgery uncertain; Arbitrator held that symptoms precipitated by wearing of sling materially contributed to need for surgery, adopting language of Murphy v Ality Management; “reasonably necessary” has less stringent meaning than “absolutely necessary”: Diab v NRMA Ltd; surgery reasonably necessary to relieve symptoms of pathology; award for applicant.

Decision date: 16 July 2019 | Member: Arbitrator Paul Sweeney

Medical Appeal decisions

Illawarra Retirement Trust v Cassandra Jones [2019] NSWWCCMA 91

Psychological Injury; appellant employer submitted that the AMS erred in finding that an additional 2% should be allowed for the effects of treatment; respondent worker submitted that the class ratings ascribed should have been higher; respondent re-examined by a member of the Panel; discussion of paragraph 1.32 of the Guidelines; Panel satisfied there are no grounds to make any addition for the effects of treatment since there has been no treatment for a number of years; Panel satisfied that there is no suggestion that the respondent “is likely to revert to the original degree of impairment if treatment is withdrawn”; Panel held that the AMS erred in finding that an additional 2% should be allowed for the effects of treatment; MAC revoked.

Decision date: 11 July 2019 | Panel: Arbitrator Deborah Moore, Dr Julian Parmegiani and Dr Patrick Morris| Body System: Psychological Injury

Pham v PPC Moulding Services Pty Ltd [2019] NSWWCCMA 92

AMS assessed 3% WPI for cervical spine and 11% WPI for lumbar spine; 1% for effect on Activities of Daily Living assessed; applicant claimed error in assessment of the impacts of the lumbar spine injury on Activities of Daily Living and submitted it should have been assessed at 2% WPI; Panel found error established as AMS provided insufficient reasons for assessment and only considered impact on work of and not impact at home; having established error the Panel also sought submissions from the parties on the assessment of the cervical spine and assessment of left shoulder without referral; Drosd v Nominal Insurer discussed; appellant submitted assessment of cervical spine in accordance with principles in Nguyen v Motor Accidents Authority of NSW; Panel held left shoulder could not be assessed without referral, considering meaning of “matters referred for assessment” in Aircons Pty Ltd v Registar of the Workers Compensation Commission; Panel held that 3% assessment for cervical spine was without support in medical evidence; original MAC revoked; new MAC issued.

Decision date: 15 July 2019 | Panel: Arbitrator John Harris, Dr Brian Stephenson and Dr Roger Pillemer | Body System: Cervical spine, lumbar spine and left upper extremity

Cannavale Constructions Pty Ltd v Joester [2019] NSWWCCMA 93

Left and right knee injury; high tibial osteotomy performed; underlying degenerative condition assessed by AMS: employer submitted error by AMS in assessment of degenerative condition that AMS attributed to employment, as the injury was not referred to the AMS; appellant submitted error as s 323 deduction failed to be made; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd discussed; Panel held that AMS had erred in assessing degenerative changes as employment injury as it was not referred to the AMS; Panel held that s 323 deduction should be made for both knees as Panel rejected submission that asymptomatic condition before workplace injury did not contribute to pathology; original MAC revoked; new MAC issued.

Decision date: 16 July 2019 | Panel: Arbitrator Gerard Egan, Dr David Crocker and Dr Tom Mastroianni | Body System: left and right lower extremity

Noble v Ian Weir & Son Pty Ltd [2019] NSWWCCMA 94

Right upper extremity injury (dislocation of the shoulder) due to being charged by a bull; 7% WPI assessed for shoulder; visible scar with contour defect and minimal trophic changes; appellant submitted error in application of paragraph 2.14 of the Guidelines and Table 16-27 of AMA 5 in assessing upper extremity impairment for resection arthroplasty of the distal clavicle; appellant submitted error in 1% assessment of scarring (TEMSKI); appellant submitted error in assessment of range of motion for failure to apply paragraph 2.14 of the Guidelines; Panel agreed with upper extremity impairment assessment and found no error in calculations; Panel found no error in assessment of range of motion; Panel held assessment of scarring was in accordance with best fit principle; Panel held no demonstrable error; MAC confirmed.

Decision date: 16 July 2019 | Panel: Arbitrator Graham Edwards, Dr Richard Crane and Dr Gregory McGroder | Body System: right upper extremity

Schoeman v Secretary, Department of Justice [2019] NSWWCCMA 95

Injury to the left upper extremity and right upper extremity; injuries sustained as a result of repetitive office duties; appellant worker submitted that the AMS erred when applying the one-tenth deduction; appellant also submitted that the AMS was in error in assessing no impairment resulting from scarring; Panel noted that the referral to the AMS did not refer to scarring; Panel satisfied that the evidence available to the AMS supported his assessment in light of Table 14.1 of the Guidelines; Cole v Wenaline, Ryder v Sundance Bakehouse, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) and Cullen v Woodbrae Holdings Pty Ltd discussed in relation to s 323; Panel satisfied that the AMS did not consider the point in time at which the existence of a pre-existing condition; Panel not satisfied that there was any pre-existing condition which contributed to the assessment of WPI; MAC revoked.

Decision date: 16 July 2019 | Panel: Arbitrator William Dalley, Dr Philippa Harvey-Sutton and Dr John Ashwell | Body System: Psychological Injury