Legal Bulletin No. 27

Issued 17 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.

Supreme Court decision

Maguire v Lis-Con Services Pty Ltd [2020] NSWSC 3

Administrative law; workers compensation; worker’s thumb crushed and amputated in workplace accident; judicial review of decision of Appeal Panel convened under section 328 of the 1998 Act; where Appeal Panel confirmed MAC determining worker’s whole person impairment at 14%; whether constructive failure to exercise appeal panel’s jurisdiction.

Decision date: 10 January 2019 | Before: Campbell J

Arbitral decisions

Brady v Café Buzz Franchising Pty Ltd [2020] NSWWCC 1

Threshold dispute; section 39 of the 1987 Act; respondent does not accept liability for total knee replacement surgery for the pleaded injury but accepts liability for such surgery as a result of an earlier injury; terms of referral of the matter to an AMS, including description of injuries (to right knee, right shoulder and right thumb and wrist) to be referred; request by the respondent for a notation on the referral to AMS in respect of right total knee replacement surgery refused; Clarke v State of New South Wales (Greystanes Disability Services) referred to; Held - matter remitted to Registrar for referral to AMS for assessment of threshold dispute.

Decision date: 6 January 2020 | Member: Arbitrator Brett Batchelor

Candy v MC Connor Racing Pty Ltd [2020] NSWWCC 2

Fall from horse in course of employment, issue as to whether right hip injured; causation in issue regarding proposed right hip replacement surgery; Held – award for the respondent on basis worker had not discharged onus of proof in relation to the alleged right hip injury, failure to adduce evidence relating to pre-injury right hip condition; Kooragang Cement Pty Ltd v Bates, Comcare v Martin discussed.

Decision date: 6 January 2020 | Member: Senior Arbitrator Josephine Bamber

Corton v Nariment Pty Limited t/as The Oakes Bakery [2020] NSWWCC 3

Consequential condition; claim for cost of bariatric surgery; worker alleges weight gain consequent upon accepted serious back injury; respondent argues weight gain not caused by injury but by other factors; also disputes whether surgery reasonably necessary; Held – worker’s weight gain consequent upon increasingly sedentary lifestyle since injury; need for surgery arises form that weight gain, and surgery reasonably necessary; Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Paramatta v Brennan and Moon v Conmah Pty Ltd followed; Kooragang Cement Pty Ltd v Bates applied.

Decision date: 6 January 2020 | Member: Arbitrator Cameron Burge

Hall v Busways North Coast Emp Pty Limited [2020] NSWWCC 4

Claim for provision of hearing aids; evidentiary onus considered; Greif v Ahmed applied; expert evidence deficient; Makita applied; Held – award to the worker.

Decision date: 6 January 2020 | Member: Arbitrator John Wynyard

Stuart v State of New South Wales (NSW Police Force) [2020] NSWWCC 5

Whether worker suffered a fall down stairs as a result of a head injury sustained in an assault while working as a Police Officer; consideration of lay evidence of worker’s condition after the assault and before the fall; no contemporaneous medical evidence; while corroborative medical records may add comfort to a finding, and in some cases be of significant weight, there is no requirement for corroboration in a civil case; Chanaa v Zarour at [86]; Held – the fall resulted from the compensable injuries, and the injuries sustained in the fall are compensable.

Decision date: 6 January 2020 | Member: Arbitrator Gerard Egan

Ward v Lowes Manhattan Pty Ltd [2020] NSWWCC 6

Calculation of PIAWE for a casual employee under a General Retail Industry Award 2010; whether the worker worked overtime in the relevant period; whether weekend and public holidays were part of “normal hours”; interpretation of section 44C of the 1987 Act together with the Award; Held – worker underpaid and entitled to an Award for weekly benefits for the purpose of section 53 of the 1987 Act.

Decision date: 6 January 2020 | Member: Arbitrator Gerard Egan

Zugajev v Secretary, Department of Education [2020] NSWWCC 7

Worker suffered compensable psychological injury in 2015 which was aggravated by a disputed work injury in September 2017; respondent made a work capacity decision in July 2016 (WCD) which stated that the work had current work capacity; parties settled claim for weekly compensation in September 2017 prior to aggravating incident with an agreement that the applicant was fit for pre-injury duties at a particular High School; worker successfully contested WCD before a Merit Review Officer in mid-2019; Held – worker bound by the Merit Review Decision pursuant to section 44(3)(g) of the 1987 Act; respondent’s submissions that the worker was estopped, that the Merit Review Decision was null and void and that the Commission did not have jurisdiction in the section 38 period rejected, Sabanayagam v St George Bank Ltd, Calman v Commissioner of Police, Trustees for the Roman Catholic Church v Hine and Abou-Haidar v Consolidated Wire Pty Ltd considered; award for the worker for weekly compensation.

Decision date: 6 January 2020 | Member: Arbitrator John Harris

Anslow v Pool Werx Operations Pty Limited [2020] NSWWCC 8

Claim for permanent impairment compensation; worker’s assertion of neck injury disputed by the respondent; worker failed to establish that he suffered injury to the neck; no issue of principle; no opinion evidence from treating medical practitioner; history recorded by IME inconsistent with worker’s evidence and that part of the contemporaneous medical record admitted into evidence; Held – claim dismissed.

Decision date: 7 January 2020 | Member: Arbitrator Paul Sweeney

Briggs v Leslie T & Michelle M Hanlon [2020] NSWWCC 9

On 16 August 2012, the applicant alleged that, whilst he grabbed a sheep by the chin from a pen to pull it towards him for shearing at his stand, it reared up and he suffered injuries to his left shoulder, neck and right shoulder; section 66 of the 1987 Act lump sum compensation claim, where injury to the cervical spine and right shoulder were disputed; worker claimed frank injuries to the disputed body parts and in the alternative, consequential injuries to the disputed body parts; Held – lack of contemporaneous evidence of complaints of symptoms to the disputed body parts; the value of contemporaneous evidence has been repeatedly endorsed by the courts; however, the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence; on considering the whole of the evidence, Arbitrator not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that worker established that there were injuries to the cervical spine and right shoulder within the meaning of section 4(a) of the 1987 Act; further, Arbitrator not satisfied that the worker had discharged the onus of proving on the balance of probabilities that there was a sufficient causal chain connecting the condition of his cervical spine and right shoulder to the accepted injury to the left shoulder on 16 August 2012.

Decision date: 7 January 2020 | Member: Arbitrator Anthony Scarcella

Byrne v Woolworths Limited [2020] NSWWCC 10

Claim for permanent impairment for injury to left knee and consequential condition affecting right knee; application of test in Moon v Conmah Pty Ltd; Arquero v Shannons Anti Corrosion Engineers Pty Ltd considered; Held – the worker has sustained a consequential condition affecting his right knee as a result of the injury to the left knee; referral to AMS for assessment of permanent impairment.

Decision date: 7 January 2020 | Member: Arbitrator John Isaksen

Eather v Skillset Limited et al [2020] NSWWCC 11

Dispute in respect of a work journey caused by fatigue; section 10(3A) of the 1987 Act; the deceased apprentice worked normal hours with early start and finish times; lay and expert evidence supported and challenged the existence of work related fatigue; Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden, Mitchell v Newcastle Permanent Building Society Ltd, Bina v ISS Property Services Pty Ltd, State Super Financial Services Australia Limited v McCoy, Field v Department of Education and Communities and Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) discussed and applied; Held – there was a real and substantial connection between the deceased’s employment and the motor vehicle accident; direction made for written submissions on dependency and apportionment.

Decision date: 7 January 2020  | Member: Senior Arbitrator Glenn Capel

Gonzalez v Lockomotion Pty Ltd t/as Michel's Patisserie [2020] NSWWCC 12

Claim for lump sum compensation and medical expenses including right shoulder replacement surgery; accepted left shoulder injury; consequential condition in right shoulder disputed; previous non-work injury and surgeries to right shoulder; inconsistent histories provided to treating practitioners and experts; Held – contemporaneous medical evidence preferred; consequential condition accepted; injury materially contributed to need for surgery; orders made for medical expenses and remitting the matter to Registrar for referral to an AMS to assess degree of permanent impairment.

Decision date: 7 January 2020 | Member: Arbitrator Rachel Homan

Heineger v Icare Workers Insurance (Workers Compensation Nominal Insurer)  [2020] NSWWCC 13

Miscellaneous Application seeking determination that employer was exempt employer pursuant to section 155AA of the 1987 Act; Held – Miscellaneous Application dismissed because Workers Compensation Commission has no jurisdiction to deal with matter as Application filed beyond the time limit in section 145A(3) of the 1987 Act; Workers Compensation Nominal Insurer v Earl, Kula Systems Pty Ltd v Workers Compensation Nominal Insurer discussed.

Decision date: 7 January 2020 | Member: Senior Arbitrator Josephine Bamber

Thompson v State of New South Wales  [2020] NSWWCC 14

Psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal and/or discipline; application of section 11A(1) of the 1987 Act; 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: 8 January 2020 | Member: Arbitrator Rachel Homan

Nicholls v Bellingen Shire Council [2020] NSWWCC 15

Worker sustained injury to the back when releasing clamps under a heavy vehicle trailer; the worker later sustained two further injuries in 2012 and 2014; whether proposed L3/4 fusion is reasonably necessary; Bartolo, Rose and Diab applied; Arbitrator satisfied that the proposed surgery will provide relief to the worker; Held – proposed L3/4 surgery is reasonably necessary as a result of the injuries to the L4/5.

Decision date: 8 January 2020  | Member: Arbitrator Gerard Egan

Medical Appeal decisions

Battiato v FDM Warehousing Pty Ltd [2020] NSWWCCMA 1

Worker suffered severe injuries to the right lower extremity and injuries to other body parts when a gate estimated to weigh in the order of 500 kilograms fell on him; Held – the AMS erred in assessing the right tibial plateau fracture in accordance with Table 17-33 of AMA 5 rather than paragraph 3.28 of the fourth edition guidelines; the AMS also erred in failing to assess the left patellar fracture; Appeal Panel reassessed the right tibial plateau fracture as severe under paragraph 3.28 of the fourth edition guidelines and reassessed the left lower extremity by combining the left patellar fracture with the finding of patellofemoral crepitus; Held – MAC revoked.

Decision date: 6 January 2020 | Panel Members: Arbitrator John Harris, Dr Drew Dixon and Dr Gregory McGroder | Body system: left lower extremity and right lower extremity

Cuskelly v New England Milk Industries Pty Ltd [2020] NSWWCCMA 2

Claim for loss of hearing; date of injury 1 January 1994; worker engaged in noisy employment after this date in New Zealand and in employment not covered by NSW Workers Compensation Acts; worker alleged that the MAC contained a demonstrable error pursuant to section 327(3)(d) of the 1998 Act on the basis of a deduction made for employment outside NSW which post-dated his employment with the respondent employer; jurisdiction to make a deduction for this employment; method of calculation of hearing loss resulting from employment with the respondent; Held – MAC revoked and new MAC issued; such MAC clarified deduction for non-work related conditions, that is in this case, hearing loss attributable to the worker’s employment which post-dated his employment in NSW.

Decision date: 8 January 2020 | Panel Members: Arbitrator Brett Batchelor, Dr Paul Niall
and Dr Henley Harrison | Body system: hearing loss

Galvin v Comtam Pty Ltd [2020] NSWWCCMA 3

Appellant worker suffered injury to back in 1994; AMS was either not provided or did not consider a forensic medical report on which worker relied; Tattersall v Registrar of the Workers Compensation Commission of NSW & anor and Wentworth Community Housing Ltd v Brennan considered; failure to consider relevant evidence is an error; Held – MAC revoked.

Decision date: 6 January 2020 | Panel Members: Arbitrator Marshal Douglas,
Dr Roger Pillemer and Dr David Crocker | Body system: back, right leg at or above the knee, left leg at or above the knee

Mott v MacArthur Disability Services Ltd [2020] NSWWCCMA 4

Lumbar spine injury; worker alleged error in the assessment by the AMS of the deductible proportion under section 323 of the 1998 Act; AMS deducted one-tenth under 323; worker alleged deduction should have been one-half to take account of prior surgeries; AMS did not err in making a deduction of one-tenth; AMS explained his assessment; worker back to work and sport after prior surgeries; no error by AMS; Held – MAC confirmed.

Decision date: 6 January 2020 | Panel Members: Arbitrator Jane Peacock, Dr Brian Noll and Dr Gregory McGroder | Body system: lumbar spine and left upper extremity

Moroney v Spotlight Pty Limited [2020] NSWWCCMA 5

Injury to right elbow and consequential condition in right shoulder, both of which required surgery; consequential condition in left shoulder and scarring; finding by arbitrator that left shoulder condition was suffered in 2015 not considered by AMS; previous injury and surgery to neck left worker with referred pain to both shoulders; osteoarthritis in right shoulder; extent of deduction under section 323; deduction in respect of rheumatoid arthritis diagnosed in 2018 which also resulted in shoulder pain; re-examination; Held – MAP revoked.

Decision date: 8 January 2020 | Panel Members: Arbitrator Catherine McDonald, Dr John Ashwell and Dr Margaret Gibson |
Body system: right upper extremity (elbow), right upper extremity (shoulder), left upper extremity and scarring

Nesci v Secretary, Department of Industry [2020] NSWWCCMA 6

Appellant worker claimed demonstrable error in MAC pursuant to 327(3)(d) of the 1998 Act; alleged failure to properly examine the cervical, thoracic and lumbar spine, and to refer to and record findings; alleged failure to refer to the worker’s qualified expert’s report, and his findings on examination; Appeal Panel found that the AMS did properly examine cervical, thoracic and lumbar spine, and record his findings which resulted in the correct assessment of 0% WPI in respect of these body parts; notwithstanding the fact that the AMS did not refer to the report of the worker’s qualified expert (and not refer to the respondent’s qualified expert); no demonstrable error shown; Held – MAC confirmed.

Decision date: 8 January 2020 | Panel Members: Arbitrator Brett Batchelor, Associate Professor Michael Fearnside and Dr Brian Noll |
Body system: psychological injury

Martinovic v Corporate Projects Pty Ltd [2020] NSWWCCMA 7

Worker suffered injuries to the lumbar spine and cervical spine with surgery at L4/5; matter subject to previous MAP decision which was quashed by Supreme Court; Held – the AMS erred in failing to provide reasons and consider activities of daily living and misconstruing evidence concerning section 323 deduction; AMS testing on the cervical spine failed to assess in accordance with the three planes of motion required by AMA 5 and the guidelines; no errors made with respect to radiculopathy or 0% assessment of a minor scar; further statements admitted but given little or no weight by Appeal Panel; worker re-examined by a Panel member; MAC revoked.

Decision date: 7 January 2020 | Panel Members: Arbitrator John Harris, Dr David Crocker and Dr Brian Noll | Body system: lumbar spine, cervical spine and skin