Legal Bulletin No. 30

Issued 7 February 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.

Arbitral decisions

Stevens v Secretary, Department of Education [2020] NSWWCC 24

Injury claimed as a result of employment as a teacher by the respondent pursuant to section 4(b)(ii) of the 1987 Act; issues of injury (section 4) substantial contributing factor (section 9A), notice of injury (section 254 of the 1998 Act) and time within which claim must be made by applicant (section 261 of the 1998 Act) relied upon by respondent; findings that applicant not prevented from recovering compensation pursuant to section 254 and 261 of the 1998 Act; findings that applicant sustained injury arising out of or in the course of her employment with the respondent, which employment was a substantial contributing factor to injury;
Held - matter remitted to Registrar for referral to AMS for assessment of whole person impairment.

Decision date: 22 January 2020 | Member: Arbitrator Brett Batchelor

BK v State of New South Wales [2020] NSWWCC 25

Worker brought proceedings disputing work capacity decisions made by Insurer; proceedings settled on basis of discontinuance and prior work capacity decisions being withdrawn; insurer then made subsequent work capacity decision on same subject matter as prior work capacity decision and additionally on capacity; applicant sought relief pursuant to section 378 of the 1998 Act rescinding the prior Consent Orders; Held - application to rescind Consent Orders of no utility and waste of Commission resources as prior work capacity decisions had been withdrawn; worker entitled to contest subsequent work capacity decision by filing a further Application; application to rescind Consent Orders refused.

Decision date: 23 January 2020 | Member: Arbitrator John Harris

Woods v Hills Grammar School [2020] NSWWCC 26

Worker assessed by an AMS at 18% WPI and orders issued in accordance with that the MAC; worker sought reconsideration seeking combination of prior assessment of the occipital nerve with the body parts assessed by the AMS; Held - complying agreement construed on an objective basis related to the occipital nerve and not the cervical spine; estoppel arose from the complying agreement which was not contradicted by the MAC which assessed the cervical spine impairment as resulting from another injury; Rail Services Authority v Dimovski applied; worker entitled to orders combining the assessment of the occipital nerve with the MAC; Commission could undertake this function since the repeal of section 65(3) of the1987 Act; Etherton v ISS Properties Pty Ltd applied; Held - orders reconsidered and further COD issued.

Decision date 29 January 2020 | Member: Arbitrator John Harris

Medical Appeal decisions

Cerkic v Express Transport & Packaging Pty Ltd [2020] NSWWCCMA 10

Injury to lumbar spine and consequential cardiovascular condition referred for assessment; challenge to AMS finding that impairment resulting from hypertension consequential upon earlier injury was not causally related to the earlier injury; AMS described link as “tenuous”; Held - demonstrable error established; when read as a whole, the reasons of the AMS appeared to reject any causal connection between the subject injury and the consequential condition; role of AMS and Arbitrator as outlined in Jaffarie v Quality Castings Pty Ltd, Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd referred to; MAC revoked.

Decision date: 23 January 2020 | Panel Members: Arbitrator William Dalley, Dr Mark Burns and Dr John Brian Stephenson | Body system: cardiovascular system (hypertension)

Hart v Hays Specialist Recruitment (Australia) Pty Limited [2020] NSWWCCMA 11

Left lower extremity injury and consequential injury to the right lower extremity; worker alleged error in the assessment by the AMS of the deductible proportion under section 323 in respect of the right lower extremity; AMS deducted one-half under section 323; worker alleged deduction should have been one-tenth to take account of prior injury and surgery; Held - AMS did not err in making a deduction of one-half; AMS assessment reasonable; available evidence showed right lower extremity had advanced post traumatic arthritis from prior injury and surgery; no error by AMS; MAC confirmed.

Decision date: 24 January 2020 | Panel Members: Arbitrator Jane Peacock, Dr John Brian Stephenson and Dr Philippa Harvey-Sutton | Body system: left lower extremity and right lower extremity

Mioc v Boldway Pty Ltd [2020] NSWWCCMA 12

Appeal Panel issued a MAP on 15 January 2020 revoking the assessment made by the AMS and issued a certificate for 8% WPI; worker’s solicitors immediately filed an application seeking the rescission of the certificate issued by the AP by its failure to include a further body part assessed in prior proceedings (7% WPI); Held - the worker’s solicitors failed to request the AMS and/or the Appeal Panel to provide a combined assessment incorporating the body part previously assessed; however, the interests of justice favoured a reconsideration of the MAP certificate pursuant to section 378 of the 1998 Act as the worker was entitled to an assessment of 15% when the previous assessment was combined with the assessments made in the present application; MAP certificate rescinded and amended combined certificate issued.

*This decision is to be read with the decision of Mioc v Boldway Pty Ltd [2020] NSWWCCMA 8

Decision date: 29 January 2020 | Panel Members: Arbitrator John Harris, Dr Neil Berry and Dr Drew Dixon | Body system: lumbar spine, right upper extremity (wrist), left lower extremity and  upper digestive tract