Legal Bulletin No. 6

Issued 09 August 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

Homburg v Medusa1 Pty Ltd t/as ACG National Pty Ltd [2019] NSWWCC 252

Security officer fell down flight of stairs at university during course of employment and injured right shoulder and cervical spine; whether symptoms in the left shoulder a consequence of injury of 30 July 2014; applicant submitted over-reliance on left arm to compensate for restrictions on activities of daily living; applicant relied on orthopaedic surgeon report that left arm had recovered well from surgery pre-dating accident; Arbitrator expressed reservations about applicant’s evidence as nature of work duties where over-reliance was required was not described and some medical evidence unclear and contradictory; Arbitrator accepted, following Murphy v Allity Management Services Pty Ltd, that medical evidence did nonetheless support finding that left shoulder symptomology was consequential to injury; matter remitted to Registrar for referral to AMS for assessment of whole person impairment.

Decision date: 25 July 2019 | Member: Arbitrator John Wynyard

Kinred v Secretary, Department of Justice [2019] NSWWCC 253

Applicant alleged that left and right knee injuries sustained in employment as teacher in state prison by inmate pushing laundry trolley; applicant submitted that respondent medical report did not meet requirements of Makita (Australia) Pty Ltd v Sprowles; respondent submitted that applicant had not established that employment was a substantial contributing factor under s 9A, relying on Badawi v Nexon Asia Pacific Pty Ltd; expert evidence must have proper basis (r 15.2 of the 2011 Rules; Southern Western Sydney Area Health Service v Edmonds; Hancock v East Coast Timber Products Pty Ltd); Murphy v Allity Management Pty Limited discussed; discussion of test of causation in Sutherland Shire Council v Baltica cited; Arbitrator held that the applicant had established employment as substantial contributing factor based on medical evidence that established meniscal tear after incident; Arbitrator preferred applicant’s medical evidence over respondent’s medical evidence as the latter did not explain how the tear resulted from rugby rather than the incident; matter remitted to Registrar for referral to AMS for assessment of whole person impairment.

Decision date: 25 July 2019 | Member: Arbitrator Catherine McDonald

Dyball v Suez Recycling and Recovery Pty Limited [2019] NSWWCC 255

Truck driver sustained undisputed left shoulder injury when turning steering wheel to avoid driver in 2011; whether applicant sustained shoulder injuries in 2016 and 2017; applicant submitted shoulder injury aggravated at work although not reported at the time; applicant had been certified fit to return to work but submitted he continued to have shoulder pain; applicant relied on Strasberger Enterprises Pty Ltd trading as Quix Food Stores v Sema to submit that multiple incidents led to pathology; respondent submitted that “episode of pain” in 2016 did not establish new frank injury, relying on Jaffarie v Quality Castings Pty Ltd; Arbitrator accepted applicant evidence and statement and held that employment was substantial contributing factor; Arbitrator held injury to rotator cuff of left shoulder sustained in 2011 and 2016; although s 254(1) of the 1998 Act not complied with, applicant met burden detailed in Bluescope Steel Ltd v Eason to establish special circumstances under s 254(2) and that there was no prejudice to respondent; Arbitrator held costs of 2018 surgery reasonably necessary; matter to be referred to AMS: award for applicant.

Decision date: 26 July 2019 | Member: Jill Toohey

Tsigounis v Secretary, Department of Justice [2019] NSWWCC 256

Applicant claimed lump sum compensation for right wrist injury and alleged consequential conditions arising from tactical training exercise with Corrective Services NSW; whether consequential condition in left shoulder as result of right wrist injury; whether consequential condition in cervical spine as result of right wrist injury; Arbitrator had recourse to medical history as applicant’s statement was mere assertion of medical causation akin to Moon v Conmah Pty Limited; applicant submitted medical evidence established “frozen left shoulder”; applicant conceded that cervical spine not contemporaneously recorded until three years after incident and that medical report relied upon was not extensive in explanation but accepted the report; respondent submitted no evidence for compensatory cause for shoulder condition; applicant did not need to establish a s 4 injury in shoulder or spine, following Kumar v Royal Comfort Bedding Pty Ltd; Arbitrator held that there was a consequential condition in left shoulder but that applicant had not established consequential condition in cervical spine; award for applicant in respect of shoulder condition; award for respondent in respect of cervical spine consequential condition.

Decision date: 26 July 2019 | Member: Arbitrator Gerard Egan

Wales v State of NSW (NSW Police Force) [2019] NSWWCC 257

Psychological injury in course of applicant’s employment as a police officer; application for reconsideration of Certificate of Determination to allow a medical appeal to be filed; medical appeal sought on grounds that demonstrable error made in AMS’s assessment of PIRS categories; applicant submitted self-care and personal hygiene category should have been Class 3 rather than Class 2 because he avoids showering and rarely cooks; applicant submitted social and recreational activities category should have been assessed as Class 3 rather than Class 1 as social life constrained and visits to pub were on recommendation of psychologist; Samuel v Sebel Furniture Limited principles on reconsideration discussed; Arbitrator held that mistake by applicant’s solicitors not to file an application for a medical appeal was not a ground to set aside the Certificate of Determination, following Hurst v Goodyear Tyre and Rubber Co (Aust); Arbitrator held no prejudice to respondent in delay in application; Arbitrator held that those parts of applicant’s statement focused on medical assessment were unlikely to be admissible, following Petrovic v BC Serv No 14 Pty Limited; Parker v Select Civil Pty Ltd discussed and applied as authority that a Medical Panel’s opinion that a different class is more appropriate for a PIRS category is an insufficient basis to overturn a MAC; Arbitrator held merits of appeal were not strong; application to reconsider Certificate of Determination declined.

Decision date: 29 July 2019 | Member: Arbitrator Catherine McDonald

Hallman v National Mutual Life Association of Australasia [2019] NSWWCC 258

Applicant claimed Myalgic Encephalomyelitis (ME)/Chronic Fatigue Syndrome (CFS) with persisting Fibromyalgia as a result of workplace injury; whether applicant has conditions of the pelvis, loss of power of speech and loss of sense of smell as a result of the injury; whether s 60 medical expenses reasonably necessary; applicant relied on medical evidence that condition of pelvis arose from neurological issues resulting from injury; respondent submitted no evidence of complaints about pelvis to medical providers; applicant relied on medical scans and reports that showed neurocognitive onset for speech impediments arising from injury; respondent relied on Jaffarie v Quality Castings Pty Ltd to submit that it was not AMS role to determine if injury arose from employment; Arbitrator accepted medical evidence of applicant based on common sense test as enunciated in Zinc Corporation v Scarce: numerous losses under Table of Disabilities remitted to Registrar for referral to Approved Medical Specialist; award for applicant.

Decision date: 24 July 2019 | Member: Arbitrator Grahame Edwards

Dickson v Giona Holdings Pty Limited t/as Peter Dickson Motors [2019] NSWWCC 259

Lumbar spine and right upper extremity injury; applicant worked as car detailer and experienced pain cleaning roof of vehicle; medical assessment conducted; whether applicant entitled to lump sum compensation that combines whole person impairment in respect of two deemed dates of injury; applicant submitted such combination was in accordance s 322(2) of the 1998 Act as applied in Department of Juvenile Justice v Edmed; respondent submitted that injuries had different nature and conditions as shoulder injury arose from car washing and finger injuries arose from administrative tasks; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd discussed in relation to Commission’s role in determining s4 injury; Arbitrator held that Approved Medical Specialist was correct to make no s 323 deduction for second date of injury when assessing shoulder, wrists and fingers; Arbitrator ordered respondent to pay s 60 expenses with credit for payments made for injury to right shoulder; award for applicant.

Decision date: 30 July 2019 | Member: Arbitrator William Dalley

Kennedy v Manildra Meat Company Pty Limited [2019] NSWWCC 260

Lumbar spine injury alleged to arise from duties as truck driver; whether various proposed surgeries were reasonably necessary; s 60 proposed medical expense disputed; applicant described repetitive work on forklift; respondent’s medical expert detailed extensive degenerative changes in spine; respondent submitted these changes were the cause for the need for surgery; applicant submitted it was not clear that respondent’s medical expert had explained alternative cause; applicant referred to principles in Rose v Health Commission (NSW); s 59A applied to require declaration for proposed surgery; Arbitrator accepted applicant as witness of truth and applying Kooragang Cement Pty Ltd v Bates, and reasonably necessary standard test in Diab v NRMA Ltd, held that proposed medical treatments were reasonably necessary; Arbitrator found respondent medical expert report was contradictory and difficult to follow; respondent could not be ordered to pay cost of certain surgeries but liability would arise once entitlement to weekly payments is revived; award for applicant.

Decision date: 31 July 2019 | Member: Arbitrator Anthony Scarcella

Medical Appeal decisions

Habbits v Chilana Pty Ltd [2019] NSWWCCMA 99

Injury to the lumbar spine; whether the AMS should have assessed DRE category III instead of DRE category II; whether the AMS should have assessed ADL as further 3%; Panel satisfied that the appellant’s submissions amount to no more than a mere disagreement with the assessment of the AMS; Panel noted that the AMS described symptoms and signs consistent with a DRE category II; chapter 4.34 of the Guidelines provide a guide only for assessment of WPI in respect of ADLs; MAC confirmed.

Decision date: 25 July 2019 | Panel: Arbitrator Deborah Moore, Dr Mark Burns and Dr David Crocker | Body System: Lumbar spine

Greater Hume Shire Council v Johnstone [2019] NSWWCCMA 100

AMS assessed lumbar spine, scarring and left knee; left knee assessment appealed; AMS assessed 20% WPI for left knee with no deduction; appellant alleged error in failure to make s 323 deduction for pre-existing condition; MAC stated that there were degenerative changes in the left knee but they were not pre-existing; Ryder v Sundance Bakehouse quoted and applied in relation to inquiry required by s 323; Panel held there was degenerative osteoarthritis with Grade 4 loss of joint space demonstrated in medical imaging taken shortly after incident and that AMS finding was against medical evidence and therefore demonstrable error; Panel applied 1/10 deduction under s 323 because of difficulty in determining extent of contribution due to total knee replacement; original MAC revoked; new MAC issued.

Decision date: 26 July 2019 | Panel: | Arbitrator Ross Bell, Dr Philippa Harvey-Sutton and Dr Drew Dixon Body System: Left lower extremity (knee)

Fabik v State of New South Wales [2019] NSWWCCMA 101

Lumbar spine injuries in motor vehicle accident and in handling timber; AMS assessed 13% WPI and deducted 2/5 for pre-existing injury; appellant worker submitted that AMS had erred in making deduction as AMS had stated that none should be made and AMS had agreed with 26% WPI assessment made by medical expert; medical expert had assessed gait derangement; Panel held that AMS had properly not considered gait derangement; Panel held that to make assessment under Table 17-5 of AMA-5 would have been an error; Panel held that when MAC read as a whole, it was clear that the AMS had determined that there was a pre-existing injury and that one “slip” in one paragraph did not amount to demonstrable error; MAC confirmed.

Decision date: 30 July 2019 | Panel: Arbitrator William Dalley, Dr James Bodel and Dr Mark Burns | Body System: lumbar spine

Hilder v the Secretary, NSW Department of Family and Community Services [2019] NSWWCCMA 102

Disability support worker sustained lower back pain; AMS assessed 12% WPI and deducted one half for pre-existing injury; AMS said he would agree with appellant’s medical expert that no deduction was required if the injury were due to the nature and conditions of employment; appellant submitted AMS had erroneously treated condition as frank injury when referral was for a deemed injury; s 328 does not grant Panel the power to reconsider a Certificate of Determination; respondent submitted reconsideration should occur as injury should have been described as frank injury; Cullen v Woodbrae Holdings Pty Ltd discussed in relation to AMS obligation to consider the point in time at which the pre-existing injury is to be considered; Panel held AMS fell into error in assessing s 323 deduction contrary to referral; original MAC revoked; new MAC issued.

Decision date: 30 July 2019 | Panel: Arbitrator William Dalley, Dr Margaret Gibson and Dr John Ashwell | Body System: lumbar spine

Latter v Transfield Pty Ltd t/as Transfield RSA Joint Venture [2019] NSWWCCMA 103

Appellant experienced industrial noise exposure on construction site and also with previous noisy employer; hearing loss assessed by AMS as 31.7% but 0% after presbycusis correction; appellant submitted that AMS failed to properly consider extent to which noise exposure contributed to hearing loss; respondent submitted AMS exercised clinical judgment after reviewing audiograms;  Panel held that AMS fell into error in not assessing the amount of bilateral hearing loss at 4000Hz revealed in audiogram; Panel agreed with AMS that appellant’s history did not support finding that loss of hearing at higher frequencies was the result of acoustic trauma; Panel agreed that “cookie-bite” pattern present sometimes associated with family deafness but noted that AMS was correct to concede that a contribution by industrial noise could not be totally excluded; Panel agreed with AMS that provision of hearing aids was reasonably necessary; original MAC revoked; new MAC issued.

Decision date: 31 July 2019 | Panel: Arbitrator Grahame Edwards, Dr Henley Harrison and Dr Joseph Scoppa | Body System: hearing