Legal Bulletin No. 26

Issued 10 January 2020

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.

Court of Appeal decisions

Secretary, New South Wales Department of Education v Johnson [2019] NSWSC 1797

Entitlement to lump sum compensation; causal relation between injury and incapacity; the extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury; jurisdictional error or error of law on the face of the record; whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.

Decision date: 20 December 2019 | Before: Macfarlan JA, Emmett AJA and Simpson AJA

Arbitral decisions

Clarke v Secretary, Department of Communities and Justice [2019] NSWWCC 399

Whether section 38 of the 1987 Act applies; weekly payments beyond second entitlement period; correct approach to adopt in determining worker’s capacity to earn; approach to section 38 ingredients and timing of decision making when insurer fails to make a work capacity decision; Held – section 38 satisfied on the facts because worker returned to work during period claimed; award for  $423.08 per week pursuant to section 38 of the 1987 Act; general order in favour of the worker pursuant to section 60 of the 1987 Act.

Decision date: 12 December 2019 | Member: Arbitrator Philip Young

Fuimaono v Campbelltown Family Support Service [2019] NSWWCC 400

Psychological injury; section 11A defence relating to discipline; whether injury wholly or predominantly caused by discipline; Whether disciplinary actions of respondent were reasonable; discussion of factors which inform whether actions are objectively reasonable, including length of service and disciplinary record; Held – respondent’s defence under section 11A failed; respondent ordered to pay weekly benefits, medical expenses; permanent impairment claim remitted to Registrar for referral to AMS.

Decision date: 12 December 2019 | Member: Arbitrator Cameron Burge

Huynh v Australian Reinforcing Company (ARC) [2019] NSWWCC 401

Agreed injury to right upper extremity; claim for permanent impairment compensation; whether cervical spine injury arose either as part of same frank injury, or as consequential condition; Held – no frank injury or consequential condition to cervical spine is made out; award for respondent on claim regarding cervical spine; balance of matter remitted to Registrar for referral to AMS for determination of permanent impairment; Castro v State Transit Authority; as Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear administrator of the estate of Anthony John Kear, and Kooragang Cement Pty Ltd v Bates followed; Kumar v Royal Comfort Bedding Pty Ltd; Moon v Conmah Pty Ltd; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed.

Decision date: 12 December 2019 | Member: Arbitrator Cameron Burge

Outram v Insurance Australia Group Services Pty Ltd [2019] NSWWCC 402

Worker employed by CGU workers compensation suffered an accepted psychological injury in 2017 for various reasons including cessation of secondment and an adverse performance appraisal; Held – cessation of secondment was reasonable action with respect to transfer within the meaning of section 11A of the 1987 Act; Manly Pacific International Hotel Pty Ltd v Doyle; performance appraisal was not reasonable action as employer had not provided reasons, in breach of a protocol, until a subsequent grievance meeting and two of the reasons provided by the respondent were otherwise wrong; Northern NSW Local Health Network v Heggie discussed; that part of the section 11A defence with respect to performance appraisal unsuccessful; respondent failed to establish the section 11A defence with respect to transfer as that action alone had not predominantly caused the psychological injury; award in favour of the worker and matter remitted for assessment by an Approved Medical Specialist.

Decision date: 12 December 2019 | Member: Arbitrator John Harris

Parasiliti v Campbelltown Family Support Service [2019] NSWWCC 403

Claim for lump sum compensation under section 66 of 1987 Act; accepted injury to left shoulder and lumbar spine as a result of the nature and conditions of employment; whether right shoulder injury and/or consequential condition; Held – worker did not discharge onus with respect to right shoulder injury; worker did sustain a consequential condition at his right shoulder as a result of the injury to his left shoulder; matter remitted to Registrar for referral to an AMS to assess the degree of permanent impairment.

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

Slade v Peter James Rogers t/as The Little Green Truck Mid North Coast [2019] NSWWCC 404

Claim for lump sums; worker suffered left shoulder injury in an incident on the 24 October 2016; also claimed impairments from injury to the cervical spine and from a consequential condition in his right shoulder; significant muscle wasting around his right shoulder agreed to be from pre-existing cervical pathology; delay of several months before radiculopathy type symptoms noted by clinicians; whether this precluded acceptance of aggravation injury to the cervical spine in the incident; the nature of an aggravation of disease injury; Federal Broom Co Pty Ltd v Semlitch; Murray v Shillingsworth; what degree of precision in histories of expert examiners required considered; Hancock v East Coast Timbers Products Pty Ltd;and Paric v John Holland (Constructions) Pty Ltd; multifactorial contributions to right shoulder condition; worker discharged onus to establish aggravation of cervical disease, but not that right shoulder symptoms resulted from either left shoulder injury or cervical spine aggravation injury; referred to AMA for assessment of impairments.

Decision date: 12 December 2019 | Member: Arbitrator Gerard Egan

Erland v Deluxwood Pty Ltd (in liquidation) [2019] NSWWCC 405

Claim for weekly benefits and medical expenses; injury disputed; factual and medical disputes; contemporaneous clinical notes did not corroborate worker’s evidence; Mason v Demasi discussed; Held – worker did not discharge onus with respect to shoulder injury; award for the respondent.

Decision date: 13 December 2019 | Member: Arbitrator Rachel Homan

Allen v Outdoor Education Experience Pty t/as Great Aussie Bush Camp [2019] NSWWCC 406

Original injury in 2004 left wrist fracture; respondent conceded that subsequent fall in 2012 a consequence of 2004 injury; parties dispute whether worker suffered left knee condition in 2014 fall; first recorded complaint of left knee condition 6 weeks after fall; Held – on the fact; worker’s evidence accepted regarding left knee symptoms not the focus of the fall; pre-existing knee condition aggravated by the fall; Dr Kleinman’s opinion stronger than Dr Bentivoglio and worker discharges onus; remit to Registrar for referral to an AMS.

Decision date: 16 December 2019 | Member: Arbitrator Philip Young

Afungia v Portavin NSW Pty Ltd [2019] NSWWCC 407

Claim for cost of left knee replacement surgery; no issue surgery a medical necessity; claim denied on basis left knee problems not consequential upon accepted right knee injury; Held – worker suffered consequential condition to left knee as result of right knee injury; proposed surgery reasonably necessary; respondent to pay costs of and associated with proposed surgery; Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan and Moon v Conmah Pty Limited all followed; Kooragang Cement Pty Ltd v Bates applied.

Decision date: 18 December 2019 | Member: Arbitrator Cameron Burge

Monahan v Taylor Carpentry Holdings Pty Ltd [2019] NSWWCC 408

Worker sustained an injury to his lumbar spine on 17 November 2018 in the course of his employment with the respondent; worker left Australia to return to Ireland in July 2019 as he was unable to comply with his visa requirements; Held– that the incapacity for work resulting from the injury is likely to be of a permanent nature and subject to the requirements of section 53 of the 1987 Act, the respondent is to pay the worker weekly compensation at the rate of $345.96 per week from 4 July 2019 to date and continuing, pursuant to section 37(1) of the 1987 Act.

Decision date: 18 December 2019 | Member: Arbitrator Carolyn Rimmer

Agha v C & E Constructions Pty Ltd [2019] NSWWCC 409

Accepted injury to right shoulder; accepted consequential injuries to left shoulder and cervical spine; whether carpal tunnel release reasonably necessary as a result of the accepted injuries; whether the worker developed a lumbar spine injury as a result of inactivity following accepted injuries; whether lumbar facet joint injections reasonably necessary as a result of accepted injuries; Held – Commission satisfied carpal tunnel release reasonably necessary as a result of accepted cervical spine condition; insufficient evidence that lumbar spine condition was due to inactivity; Commission not satisfied that facet joint injections reasonably necessary as a result of accepted injuries.

Decision date: 19 December 2019 | Member: Arbitrator Jill Toohey

Bauchop v C & E Constructions Pty Ltd [2019] NSWWCC 410

Permanent impairment claim relating to left hip condition; whether nature and conditions of employment main contributing factor to aggravation of accepted arthritic disease condition to subject body part; Held– nature and conditions of employment were major contributing factor to aggravation/exacerbation of disease process (section 4(b)(ii) of the 1987 Act); Murray v Shillingsworth followed; matter remitted to Registrar for referral to AMS to determine permanent impairment.

Decision date: 19 December 2019 | Member: Arbitrator Cameron Burge

Hanzlicek v Protech Management Pty Limited [2019] NSWWCC 411

Hearing loss claim for permanent impairment; worker had made prior claim against different employer, but never paid permanent impairment compensation; now seeks compensation from respondent; respondent admits it was the last noisy employer, but submits current claim must be dismissed as its liability falls beneath threshold; effect of previous claim on current proceedings discussed; Held – worker is entitled to prosecute his current claim, and the fact of the previous claim for which no compensation was paid is irrelevant to him doing so; Downer EDI Works Pty Ltd v McLuckie followed; matter remitted to Registrar for referral to AMS to determine whole person impairment.

Decision date: 19 December 2019 | Member: Arbitrator Cameron Burge

Kumar v Fairfield City Council [2019] NSWWCC 412

Injury to worker’s left shoulder pursuant to section 4(b)(ii) of 1987 Act; consideration of main contributing factor to injury; issues of credit; previous injury; incapacity; Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd discussed; Held – worker sustained injury pursuant to section 4 of the 1987 Act; employment main contributing factor to the aggravation of the condition.

Decision date: 19 December 2019 | Member: Arbitrator Elizabeth Beilby

Peats v Bras N Things Pty Limited [2019] NSWWCC 413

Dispute in relation to section 60 causation for claimed nasal surgery costs; whether need for surgery the result of work injury; whether part of the pathology pre-existing; Held – surgery the result of the work injury; evidence overall that symptoms began with work injury; no history of issues prior; may be more than one cause of injury; Murphy v Allity Management Services Pty Ltd applied; employer takes worker as it finds them; State Transit Authority of NSW v Fritzi Chemler; Attorney General’s Department v K;chain of causation not broken; Kooragang Cement Pty Ltd v Bates; Comcare v Martin; March v Stramare (E & M H) Pty Limited; Flounders v Millar followed.

Decision date: 19 December 2019 | Member: Arbitrator Ross Bell

Ratto v Transport Roads and Maritime [2019] NSWWCC 414

Interlocutory issue; section 73 of the 1998 Act and Clause 41 of the Workers Compensation Regulation 2016; admissibility of documents not served with section 78 notice; Inghams Enterprises Pty Ltd v Thoroughgood; Chown v Tony Madden Refrigeration Transport Limited; Held – documents inadmissible in the proceedings; claims for weekly compensation; section 60 expenses; section 11A(1) of 1987 Act defence under categories of discipline; performance appraisal; Chisholm v Thakral Finance Pty Ltd trading as Novotel Brighton Beach; Manly Pacific International Hotel Pty Ltd v Doyle; Irwin v Director-General of School Education; Smith v Roads and Traffic Authority of NSW; Kooragang Cement Pty Ltd v Bates’; Ponnan v George Weston Foods Ltd; Temelkov v Kemblawarra Portuguese Sports and Social Club; Commissioner of Police v Minahan; Jeffery v Lintipal Pty Ltd; Melder v Ausbowl Pty Ltd; Jackson v Work Directions Australia Pty Ltd; Balranald Shire Council v Walsh; Held – performance appraisal not applicable; action was in nature of disciplinary action; injury not wholly or predominantly caused by the employer’s action; employer’s action not shown to be reasonable; awards for the worker.

Decision date: 19 December 2019 | Member: Arbitrator Ross Bell

Wang v Yunlong Building Services Pty Ltd & Ors [2019] NSWWCC 415

Worker injured when he fell off a roof on a building site; dispute as to whether he was a worker or deemed worker employed by the first or second respondent; second respondent uninsured; Held– that there were two contracts for two different jobs and the worker was injured performing work in respect of the second contract for the first respondent; Stevens v Brodribb Sawmilling Co Pty Ltd, Mohamed v Barnados Australia Limited, Malivanek v Ring Group Pty Ltd considered and applied; Held – worker was employed by the first respondent at the time of the injury; matter referred to AMS for assessment of permanent impairment as a result of injury.

Decision date: 19 December 2019 | Member: Arbitrator Carolyn Rimmer

Allan v State of New South Wales [2019] NSWWCC 416

Injuries to right shoulder and cervical spine both occurring on 6 May 2015 and 21 August 2015; right shoulder conceded, cervical spine in issue; worker difficulties with articulation and history giving; medical contest; competing opinions of Dr A G Hopcroft and Dr C Harrington; Held – on the facts, worker’s delay in complaint regarding cervical spine explicable and existence of cervical radiculopathy explained by Dr Hopcroft but not considered by Dr Harrington; treatment note by physiotherapist supportive of worker and Dr Hopcroft’s explanation; matter remitted to Registrar for referral in respect of both conditions.

Decision date: 20 December 2019 | Member: Arbitrator Philip Young

Freeman v State of New South Wales [2019] NSWWCC 417

Medical dispute; whether condition reached maximum medical improvement (MMI); whether Arbitrator has power to determine dispute as to whether MMI reached; if so, whether that power should be exercised; both IMEs say worker has 26% WPI, however, respondent’s IME cannot say if that impairment is permanent; Held – the Commission as constituted by an Arbitrator has power to determine whether MMI has been reached, per the operation of sections 293 and 319 of the 1998 Act; nevertheless, the Workcover Guidelines for Evaluation of Permanent Impairment make it clear the assessment of whether MMI has been reached is a clinical judgment; as such, it is a decision in the province of an AMS.

Decision date: 20 December 2019 | Member: Arbitrator Cameron Burge

Grima v Bursons Automotive Pty Limited [2019] NSWWCC 418

Claim for weight loss surgery following injury to lower back and significant weight gain post-injury; Moon v Conmah Pty Ltd, Murphy v Allity Management Services Pty Ltd, and Rose v Health Commission (NSW) considered; Held – the proposed weight loss surgery was reasonably necessary treatment as a result of the injury to the lower back.

Decision date: 20 December 2019 | Member: Arbitrator John Isaksen

Prasad v Prixcar Services Pty Ltd [2019] NSWWCC 419

Claim for cost of future neck surgery denied on basis aggravation had passed and been supplanted by degenerative changes; Fact of aggravation accepted but said to have passed; reasonable necessity of surgery also in question; Held – aggravation caused by nature and conditions of employment ongoing and necessitates surgery; clear cervical spine pathology present, contrary to assertions of respondent’s IME; proposed future surgery necessary; respondent to pay costs thereof.

Decision date: 20 December 2019 | Member: Arbitrator Cameron Burge

Thompson v 3M Purification Pty Limited & Cannon Hygiene Australia Pty Limited  [2019] NSWWCC 420

Lumbar spine injury agreed, causation in issue regarding left hip; Held – pursuant to section 4(b)(ii) of the 1987 Act, the worker sustained injury to her left hip in relation to the deemed date of injury 19 March 2013, with her employment with the respondent being the main contributing factor to the aggravation of the pre-existing disease; lump sum claim in relation to lumbar spine and left lower extremity (hip) referred to AMS; weekly compensation and expenses pursuant to section 60 of the 1987 Act awarded.

Decision date: 20 December 2019 | Member: Senior Arbitrator Josephine Bamber

Toynton v Kmart Australia Limited [2019] NSWWCC 421

Claim for weekly benefits and medical expenses including proposed corticosteroid injection; medical dispute as to nature of injury; respondent’s expert found symptoms due to degenerative cervical injury rather than shoulder injury pleaded; Held – injury to shoulder accepted; treating evidence consistent with worker’s expert opinion; proposed injection reasonably necessary treatment; worker had no current work capacity; orders made for payment of weekly compensation pursuant to section 37(1)(a) of the 1987 Act and medical expenses.

Decision date: 20 December 2019 | Member: Arbitrator Rachel Homan

Webber v Racing NSW [2019] NSWWCC 422

Weekly payments claim following section 78 notice to cease payments existing since award in 2015; whether respondent estopped from re-agitating earlier findings; whether commission lacked jurisdiction to deal with matter for the respondent being incorrectly named and there being a work capacity decision; consideration of estoppel principles and section 43 of the 1987 Act with Work Capacity Guidelines;  Held – respondent estopped from relying on aspects of earlier findings that had then been necessarily decided and also from raising issue about whether it was correctly named as respondent; no valid work capacity decision made; worker entitled to award for weekly payments.

Decision date: 20 December 2019 | Member: Arbitrator Michael Perry

Medical Appeal decisions

Myer Pty Limited v El Bayeh [2019] NSWWCCMA 183

Whether assessment made on the basis of incorrect criteria; whether demonstrable error on face of Certificate; grounds of appeal; whether AMS erred in including injuries not referred for assessment; whether AMS erred in assessing scarring (TEMSKI); Held – no error in the assessment of the body part referred to the AMS; demonstrable error on face of the Certificate in making assessment of scarring; Roads and Maritime Services v Rodger Wilson; NSW Police Force v Registrar of the Workers Compensation Commission of NSW; MAC revoked.

Decision date: 12 December 2019 | Panel Members: Arbitrator Ross Bell,
Dr Gregory McGroder and Dr James Bodel | Body system: left upper extremity

Waters v Alcheringa Park Thoroughbred Pty Ltd [2019] NSWWCCMA 184

Traumatic brain injury; AMS failed to identify the Guidelines he applied; failure to give adequate reasons; Appeal Panel required to re-examine the worker; Held – MAC confirmed.

Decision date: 13 December 2019 | Panel Members: Arbitrator John Wynyard,
Dr Mark Burns and Dr Robin Fitzsimons | Body system: lumbar spine, cognitive impairment (nervous system) and scarring

Ross v State of New South Wales [2019] NSWWCCMA 185

Injury to the left knee; prior left knee replacement; Arbitrator determined causally related to employment; AMS made an additional deduction because he said that the work duties would not have been entirely responsible for the breakdown of the prosthesis; AMS found poor result, leading to 30% WPI, deducted 50% for pre-existing injury (knee replacement) then deducted a further 50% because of his view on causation, leaving 8% WPI; Appeal Panel determined that was an error; impairment of 15% correct; Held – MAC revoked.

Decision date: 16 December 2019 | Panel Members: Arbitrator Deborah Moore,
Dr Richard Crane and Dr J Brian Stephenson | Body system: left lower extremity

Simic v The Croatian Club Ltd [2019] NSWWCCMA 186

AMS assessment of lumbar spine, right upper extremity and scarring; appellant alleges demonstrable error and application of incorrect criteria in deduction applied under section 323 of the 1998 Act in relation to the lumbar spine and right upper extremity and error in relation to assessment of scarring; Held – demonstrable error found in relation to deduction under section 323 in respect of the lumbar spine, original MAC revoked, and new MAC issued.

Decision date: 16 December 2019 | Panel Members: Senior Arbitrator Josephine Bamber,
Dr Brian Noll and Dr Drew Dixon | Body system: right upper extremity, lumbar spine and scarring

City of Fairfield RSL Memorial Club v Timbs [2019] NSWWCCMA 187

The respondent was referred to the AMS for assessment of whole person impairment (WPI) resulting from an injury on 14 April 2014 as follows; right upper extremity (shoulder), left upper extremity (shoulder) for a consequential condition; the history was that the worker had significant symptoms in his right shoulder a week prior to the work injury; AMS made a one-tenth deduction in respect of both shoulders; weight of evidence suggested a significantly greater deduction for the right shoulder; Appeal Panel determined a 50% deduction was appropriate but confirmed the one-tenth deduction for the left shoulder; MAC revoked.

Decision date: 17 December 2019 | Panel Members: Arbitrator Deborah Moore,
Dr James Bodel and Dr Brian Noll | Body system: right upper extremity and left upper extremity

French v Wentworth Golf Club Limited [2019] NSWWCCMA 188

Referral to AMS for assessment of lumbar spine injury and scarring; appellant worker challenged AMS deduction of two under section 323 for previous injury on bases of it being arbitrary and not explained by reference to evidence; discussion of Vitaz v Westform (NSW) Pty Ltd; Appeal Panel held that a two/fifth deduction was a medically contestable issue and AMS path of reasoning for deduction of that order not revealed in MAC; Held – MAC revoked.

Decision date: 17 December 2019 | Panel Members: Arbitrator Marshal Douglas,
Dr James Bodel and Dr Philippa Harvey-Sutton | Body system: lumbar spine and scarring (TEMSKI)

Kuzmanovic v State of New South Wales [2019] NSWWCCMA 189

Appeal from assessment of both shoulders; whether approved medical specialist was entitled to reject range of movement as a plausible measure of impairment due to inconsistent presentation; whether failure to record his goniometer measurements was in error; whether he was entitled to rely on previous assessments of approved medical specialist Dr Adler and IME Dr Dias as evidence that the pathology resulting from injury had resolved; Held – appeal allowed, worker referred for assessment by a member of the Appeal Panel; MAC revoked.

Decision date: 17 December 2019 | Panel Members: Arbitrator Richard Perrignon,
Dr Richard Crane and Dr Tommasino Mastroianni | Body system: right upper extremity and left upper extremity

Randstad Pty Limited v Silva [2019] NSWWCCMA 190

Whether assessment made on the basis of incorrect criteria; whether demonstrable error on face of Certificate; grounds of appeal; whether AMS erred in making no section 323 of 1998 Act deduction to the assessment; condition asymptomatic before injury; scans soon after injury showing extensive degenerative change not referred to; Held– demonstrable error on face of the Certificate in failing to address MRI after injury and explain why no deduction; MAC revoked; section 323(2) applicable; deduction of one-tenth made; Ryder v Sundance Bakehouse; Cole v Wenaline Pty Ltd; Fire & Rescue NSW v Clinen; Vitaz v Westform (NSW) Pty Limited followed.

Decision date: 17 December 2019 | Panel Members: Arbitrator Ross Bell,
Dr Brian J Stephenson and Dr Tommasino Mastroianni | Body system: cervical spine and scarring (TEMSKI)

Hackett v Hills Parcel Direct Pty Limited [2019] NSWWCCMA 191

Appeal in relation to the assessment of scarring as a result of right knee total replacement surgery; whether the approved medical specialist was entitled to assess 0% impairment because the surgery was uncomplicated and the scar was typical of that kind of surgery, without applying the criteria in Table 14.1 of the Guidelines; error demonstrated; referred for examination to a member of the Appeal Panel; Held – MAC revoked.

Decision date: 18 December 2019 | Panel Members: Arbitrator Richard Perrignon,
Dr Gregory McGroder and Dr James Bodel | Body system: right lower extremity and scarring

Prasad v CSR Martini Pty Limited [2019] NSWWCCMA 192

Appeal from assessment of psychiatric impairment; no finding of secondary psychological injury by Commission; whether in those circumstances the approved medical specialist was entitled to exclude from his assessment any part of the impairment which resulted from secondary psychological injury; whether error demonstrated in respect of PIRS categories of travel, social functioning or concentration persistence and pace; Held – error demonstrated in respect of one PIRS category; referred to examination to a member of the Appeal Panel; MAC revoked.

Decision date: 18 December 2019 | Panel Members: Arbitrator Richard Perrignon,
Dr Michael Hong and Dr Julian Parmegiani | Body system: psychological injury

Matthews v Lis-Con Services Pty Limited (Administrator Appointed) [2019] NSWWCCMA 193

Steel-fixer/concreter suffered an injury to his right arm; referral in respect of ulnar nerve, shoulder, elbow, wrist and hand; no complaint in relation to shoulder; no error in assessment of ulnar nerve; no assessment made in respect of elbow though loss of movement found; re-assessment in respect of wrist; no error in assessment of hand; Held– MAC revoked.

Decision date: 18 December 2019 | Panel Members: Arbitrator Catherine McDonald,
Dr Drew Dixon and Dr Philippa Harvey-Sutton | Body system: right upper extremity

Shakiri v Bluescope Steel Limited [2019] NSWWCCMA 194

Grounds of appeal based on unproven factual assumptions alleged in appellant’s submission; further grounds based on mis-reading of AMS readings; Held – appeal rejected; MAC confirmed.

Decision date: 18 December 2019 | Panel Members: Arbitrator John Wynyard,
Dr John Ashwell and Dr Philippa Harvey-Sutton | Body system: cervical spine, lumbar spine, upper and lower gastrointestinal tract

Broadspectrum (Australia) Pty Ltd v Lowe [2019] NSWWCCMA 195

Psychological injury; worker suffered PTSD as a result of an incident which occurred while he was working as a teacher on Manus Island; AMS did not obtain history of previous psychiatric treatment; GP notes revealed treatment for a previous condition; epidemiological literature shows that the condition would lead to an increased likelihood of future PTSD following a traumatic event; section 323 deduction of one-tenth applied; Held – MAC revoked.

Decision date: 18 December 2019 | Panel Members: Arbitrator Catherine McDonald,
Professor Nicholas Glozier and Dr Julian Parmegiani | Body system: psychological injury

G & J Spackman v Mackenzie [2019] NSWWCCMA 196

The appeal concerned application of Table 4.2 of the Guidelines and assessment of upper extremity impairment pursuant to Chapter 2.20 of the Guidelines; the AMS found no radiculopathy upon examination but assessed an additional 3% pursuant to line 1 of Table 4.2 “spinal surgery with residual symptoms and radiculopathy”; Held – that the relevant modifier required a finding of radiculopathy and AMS’ assessment of WPI arising from injury to lumbar spine should be reduced by 3%; right upper extremity (shoulder) assessed on the basis of range of motion; the AMS reported range of motion in the left and right shoulders; the uninjured/normal left shoulder showed a diminished range of motion but the AMS declared that there was “no deductible proportion”; Held – Chapter 2.20 required a deduction based on the contralateral range of movement; the assessment was varied to reflect the reduced range of motion in the contralateral shoulder; the MAC was revoked and a fresh certificate issued in accordance with the Appeal Panel’s assessments.

Decision date: 18 December 2019 | Panel Members: Arbitrator William Dalley,
Dr Tommasino Mastroianni and Dr John Ashwell | Body system: right upper extremity, lumbar spine and scarring

Bronzon v All Concrete SLD Pty Limited [2019] NSWWCCMA 197

Appeal from assessment of lumbar spine and hips; whether the approved medical specialist (AMS) was entitled to assess DRE category II in respect of the lumbar spine; whether AMS was entitled to find that a pre-existing seronegative spondyloarthritis of the hips contributed to impairment; whether AMS was entitled to deduct four-fifths from his assessment of the hips to give effect to the pre-existing condition; Held– failure to give reasons to support the four-fifth deduction; error capable of correction without further examination; MAC revoked.

Decision date: 19 December 2019 | Panel Members: Arbitrator Richard Perrignon,
Dr Michael Fearnside and Dr John Ashwell | Body system: lumbar spine, right lower extremity and left lower extremity

Lend Lease Project Management & Construction (Australia) Pty Limited v Usher [2019] NSWWCCMA 198

Demonstrable errors alleged regarding section 68A of the 1987 Act; deductions for table of disability injuries; no error regarding back injury; presumption of regularity considered; unexplained alteration in issue of amended MAC regarding right knee; demonstrable error made; failure to properly apply section 323 alleged regarding left leg injury post 2002; deduction at odds with available evidence; MAC revoked.

Decision date: 19 December 2019 | Panel Members: Arbitrator John Wynyard,
Dr Roger Pillemer and Dr Margaret Gibson | Body system: left lower extremity

State of New South Wales (HealthShare NSW) v Martine [2019] NSWWCCMA 199

The AMS applied a one-tenth deduction pursuant to section 323(2) in assessing whole person impairment in respect of injury to the right hip; the worker had previously undergone a total right hip replacement unrelated to employment; return to work after brief rehabilitation; subsequent fall at work resulted in periprosthetic fracture requiring revision surgery with exchange of the femoral prosthesis; Held – a deduction of one-tenth pursuant to section 323(2) was at odds with the evidence; error established; upon reassessment a deduction of one half in respect of the prior total right hip replacement assessed; MAC revoked.

Decision date: 20 December 2019 | Panel Members: Arbitrator William Dalley,
Dr Brian Noll and Dr Mark Burns | Body system: right lower extremity