Legal Bulletin No. 31

Issued 14 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

Coleman v Qantas Airways Limited [2020] NSWWCC 27

Claim for injury to left upper limb to be included in referral to AMS; respondent denies liability for injury to left upper limb; review of evidence and application of dicta in Fox v Percy; Held - worker sustained injury to his left upper limb; referral to AMS to assess impairment of right and left upper limbs.

Decision date: 30 January 2020 | Member: Arbitrator John Isaksen

Eves v Mission Australia [2020] NSWWCC 28

Psychological injury claimed to have arisen out of or in the course of employment and separate subsequent physical injury claimed to have been suffered pursuant to section 10 of the 1987 Act; respondent puts in issue psychological injury, substantial/main contributing factor thereto, section 11A defence to such injury (discipline); whether the applicant was on a section 10 journey when physical injury occurred; real and substantial connection between the journey and injury suffered in motor vehicle accident; incapacity as a result of both injuries; Held - findings in favour of the applicant in respect of psychological injury; section 11A defence, injury on the section 10 journey, real and substantial connection with employment and incapacity; award in favour of applicant for weekly benefits pursuant to section 36 and 37 of the 1987 Act.

Decision date: 30 January 2020 | Member: Arbitrator Brett Batchelor

Figueira v IPN Medical Centres Pty Limited [2020] NSWWCC 29

Claim for condition on the cervical spine as a consequence of accepted injury to the right shoulder and accepted condition in the left shoulder consequent upon the right shoulder injury; evaluation of medical evidence; no expert medical evidence from the respondent addressing the issue; Kooragang Cement Pty Ltd v Bates discussed; common sense appraisal of evidence in respect of causal connection between accepted injury/condition and condition claimed in cervical spine; finding in favour of the applicant; matter referred to Registrar for referral to AMS for assessment of WPI as a result of injury to right shoulder and consequential conditions in left shoulder and cervical spine.

Decision date: 30 January 2020 | Member: Arbitrator Brett Batchelor

Hammond v Adam Nelson Painting and Decorating & Ors [2020] NSWWCC 30

Worker suffered severe spinal injuries on 24 September 2018 when he fell through a skylight in the roof that he was painting on a rural property in Victoria; worker and the first respondent both resided in New South Wales; worker completed his apprenticeship as a painter in early 2018 and performed work for family members and for another painter up to 23 March 2018; thereafter he performed painting work for the first respondent, Adam Nelson, when Mr Nelson required assistance in his painting business; work was not continuous and worker performed work for other family members as well; worker had an ABN and invoiced first respondent on an hourly basis; first respondent quoted a painting job in rural Victoria painting houses and sheds; worker travelled with first respondent to the property and carried out painting work with first respondent; on 24 September 2018 worker stepped on a fibreglass skylight and fell through suffering severe injuries to his cervical and thoracic spine; first respondent was not insured and the workers compensation nominal insurer was joined in proceedings for weekly payments and treatment expenses; liability denied as respondents asserted the worker was not a “worker” or a deemed worker; the “ultimate question” posed in On-Call Interpreters & Translators Agency Pty Ltd v Commissioner of Taxation (No 3) considered in light of the criteria identified in Stevens v Brodribb Sawmilling Co Pty Ltd; Held - worker was a “worker” within section 4 of the 1987 Act; respondents disputed connection with New South Wales in the circumstances of an agreement to be performed wholly in the State of Victoria apart from travel; state where applicant “usually worked” did not apply because of section 9AA(6); period of work less than six months; worker “usually based” in New South Wales.

Decision date: 16 January 2020

Date of Amendment: 30 January 2020 | Member: Arbitrator William Dalley

Bikesic v James Hardie Industries Ltd [2020] NSWWCC 31

Hearing loss; requirement for hearing aids; whether industrial deafness component of total hearing loss materially contributes to the need for hearing aids; Held - worker has not discharged onus of demonstrating industrial deafness has materially contributed to the accepted need for hearing aids, in circumstances where the industrial deafness as just over 10% of the total loss, and where no adequate expert opinion is provided sufficient to discharge applicant’s onus of proof.

Decision date 31 January 2020 | Member: Arbitrator Cameron Burge

Everson v Ausgrid [2020] NSWWCC 32

Psychological injury; Makita (Australia) Pty Ltd v Sprowles and Westpac Banking Corporation v Chauhan considered regarding adequacy of expert evidence; Department of Education & Training v Sinclair and Rail Corporation NSW v Aravanopules considered regarding reasonable actions and section 11A of the 1987 Act; Held - award in favour of the applicant.

Decision date: 31 January 2020 | Member: Arbitrator John Wynyard

Hyland v NSW Sugar Milling Co-operative Limited [2020] NSWWCC 33

Worker with highest needs; claim for weekly benefits pursuant to section 38A of the 1987 Act for period from 17 September 2012 to the date of the MAC containing an assessment of permanent impairment of 40% WPI; respondent claims that Melides v Meat Carter Pty Limited wrongly decided; noted that decision is the subject of appeal to the Court of Appeal; submission that determination of applicant’s claim should be deferred until the outcome of the appeal; submission that the applicant was Anshun estopped from pursuing claim for weekly benefits because of a previous discontinuance of proceedings for such benefits;   Held - Arbitrator bound by the decision in Melides; unreasonable to defer decision pending outcome of appeal; worker not estopped from pursuing current claim; award of weekly benefits in favour of the applicant for the period claimed pursuant to section 38A with credit for payments made during the period.

Decision date 4 February 2020 | Member: Arbitrator Brett Batchelor

Ward v Lowes- Manhattan Pty Ltd [2020] NSWWCC 34

Applicant’s incapacity for work as a result of her injury on 14 March 2017 is likely to be of a permanent nature pursuant to section 53(1) of the 1987 Act.

Decision date: 4 February 2020 | Member: Arbitrator Rachel Homan

Medical Appeal decisions

Talevski v Otis Elevator Company Pty Limited [2020] NSWWCCMA 13

Appeal from assessment of right knee; whether section 323 of the 1998 Act empowered approved medical specialist to deduct one-tenth for the effects of subsequent injury to the right knee; whether deduction otherwise permissible; Held - finding that the deduction demonstrated error; MAC revoked.

Decision date: 30 January 2020 | Panel Members: Arbitrator R J Perrignon, Dr John Ashwell and Dr Philippa Harvey-Sutton | Body system: right lower extremity

Bagnall v Epic Wright Heaton Pty Ltd [2020] NSWWCCMA 14

Truck driver suffered an injury to his neck and shoulder; C4/5 and C5/6 discectomies with removal of osteophytes and fusion; no error in failing to assess radiculopathy when AMS contrasted findings of other doctors with his on the day of examination; section 323 deduction of three-tenths for presence of osteophytes was excessive when the worker was asymptomatic before the injury; section 323 deduction reduced to one-tenth; MAC revoked.

Decision date: 3 February 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Drew Dixon and Dr Ross Mellick | Body system: cervical spine and left upper extremity (left shoulder)

Marist Youth Care Limited v Loughlin [2020] NSWWCCMA 15

Youth worker suffered PTSD; appeal by employer about extent of deduction pursuant to section 323 of the 1998 Act; method of assessing deduction regarding psychological injury; Cole v Wenaline Pty Ltd does not prevent PIRS assessment of pre-existing condition; Mercy Centre Lavington Ltd v Kiely does not mandate evidentiary basis for extent of section 323 deduction; AMS appropriately applied Guidelines; Held - MAC confirmed.

Decision date: 3 February 2020 | Panel Members: Arbitrator Catherine McDonald, Professor Nicholas Glozier and Dr Patrick Morris | Body system: psychological injury

Strain v Ant Building Pty Ltd [2020] NSWWCCMA 16

Carpenter fell from a wall and suffered a compression fracture of his L1 vertebra and fracture of his right distal radius; later underwent a T12/L1fusion; no dispute about assessment of right upper extremity; AMS applied paragraph 4.32 of the Guidelines and assessed thoracic spine; worker argued AMS should assess thoracic and lumbar spine; no error in method of assessment used by AMS; Held - MAC confirmed.

Decision date: 3 February 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Mark Burns and Dr Brian Stephenson | Body system: back

Bennett v Secretary, Department of Education [2020] NSWWCCMA 17

Whether demonstrable error; assessment based on incorrect criteria in diagnosis and assessment; Held - no error discerned in assessment of brain damage and other injuries; AMS correctly assessed brain damage on correct criteria; difference of opinion not valid ground of appeal; subjective reporting of applicant not conclusive; secondary psychological symptoms not due to brain injury; importance of exercise of clinical judgement of AMS; Glenn William Parker v Select Civil Pty Limited and Mahenthirarasa v State Rail Authority of New South Wales & Ors considered and applied; MAC confirmed.

Decision date: 4 February 2020 | Panel Members: Arbitrator Ross Bell, Dr Robin Fitzsimmons and Dr Mark Burns | Body system: brain damage, back, neck, left arm at or above the elbow and right arm at or above the elbow

Aldi Stores ( A Limited Partnership) v Smart [2020] NSWWCCMA 18

Truck driver suffered head injury and orthopaedic injuries; orthopaedic injuries not referred to Appeal Panel; AMS did not set out reasoning for assessment of mental status and emotional and behavioural impairments; Appeal Panel undertook review on the basis of the history taken by the AMS and material in the file; application of clinical dementia rating; Held - MAC revoked.

Decision date: 5 February 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Michael Davies and Dr Robin Fitzsimmons | Body system: emotion and behaviour