Legal Bulletin No. 33

Issued 28 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

Dotlic v CFMEU [2020] NSWWCC 43

Weekly benefits; degree of incapacity suffered by worker; whether any capacity given section 32A indicia; Held - worker totally incapacitated for part of period claimed and partially incapacitated for the balance of the period.

Decision date: 13 February 2020 | Member: Arbitrator Cameron Burge

Dost v Target Australia Pty Limited [2020] NSWWCC 44

Claim for weekly payments for medical expenses and permanent impairment for psychological injury; worker claims she was the subject of verbal abuse by her manager on one occasion only; consideration of lay evidence; worker fails to meet onus of proof to establish event that led to alleged injury; no other cause of injury claimed by worker; Held - award for the respondent.

Decision date: 14 February 2020 | Member: Arbitrator John Isaksen

Jogiya v State of New South Wales [2020] NSWWCC 45

Worker sustained back injury while transferring a client to a shower chair on 29 March 2015; worker underwent L4/5 microdiscectomy and rhizolysis on 9 November 2015; worker’s back pain deteriorated over the last two years and treating specialist recommended a fusion at L4/5; whether the surgery was reasonably necessary as a result of the accepted injury; Held - the proposed surgery was reasonably necessary as a result of the injury on 29 March 2015; respondent to pay costs of and associated with the proposed surgery.

Decision date: 14 February 2020 | Member: Arbitrator Carolyn Rimmer

Abdou v Australian Concert & Entertainment Security Pty Ltd [2020] NSWWCC 46

Application for reconsideration of a Certificate of Determination pursuant to section 350(3) of the 1998 Act on the grounds there had been a deterioration in the worker’s condition; in the alternative, application to allow the worker to lodge an appeal against a Medical Assessment Certificate issued in 2016; Woolworths Ltd v Stafford; Lizdenis v Centrel Pty Ltd; Habib v Glowmeat Pty Ltd; Parsons v Dell Australia Pty Ltd; Samuel v Sebel Furniture Limited; Howell v Stringvale Pty Ltd; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission discussed and applied; Held - application for reconsideration declined due to the operation of section 66(1A) of the 1987 Act and section 322A of the 1998 Act.

Decision Date: 17 February 2020 | Member: Senior Arbitrator Glenn Capel

Wilkinson v State of NSW [2020] NSWWCC 47

Claim for weekly benefits and medical expenses for psychological injury; allegations of misconduct following application for Apprehended Domestic Violence Order naming worker as defendant; injury disputed; whether injury wholly or predominantly caused by reasonable action with respect to discipline; Held - actions of respondent reasonable; section 11A(1) of the 1987 Act applies; award for the respondent.

Decision Date: 17 February 2020 | Member: Arbitrator Rachel Homan

Ates v Secretary, Department of Transport [2020] NSWWCC 48

Lump sum claim for various body parts; injury to thoracic spine disputed; Held - award for worker pursuant to section 4(b)(ii) of the 1987 Act; referral for assessment of all body parts to Approved Medical Specialist.

Decision Date: 18 February 2020 | Member: Senior Arbitrator Josephine Bamber

Cosgrove v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 49

Claim for weekly benefits and section 60 expenses based on incapacity as a result of injury to lumbar spine (conceded by respondent) and consequential condition in left knee (not conceded by respondent); weekly benefits claim resolved based on incapacity as a result of injury to lumbar spine; Held - finding that the worker suffered a condition in her left knee consequent upon injury to lumbar spine; total left knee replacement was reasonably necessary as a result of injury to lumbar spine.

Decision Date: 18 February 2020 | Member: Arbitrator Brett Batchelor

Medical Appeal decisions

Golub v Moon Painting Pty Ltd [2020] NSWWCCMA 21

Injury to the lumbar spine, cervical spine and right upper extremity; appellant worker submitted that the AMS erred in finding inconsistency on presentation as the AMS did not explain how the worker’s presentation was inconsistent; Appeal Panel satisfied that the AMS was not able to use a full range of movement as a reliable test of impairment; appropriate method was to utilise an analogous condition; Appeal Panel satisfied that the AMS clearly explained his reasons for why the worker’s presentation was inconsistent; Held - MAC confirmed.

Decision date: 13 February 2020 | Panel Members: Arbitrator Deborah Moore,
Dr Roger Pillemer and Dr Margaret Gibson | Body system: lumbar spine, cervical spine and right upper extremity

Muskoka Farm Pty Ltd v Smith [2020] NSWWCCMA 22

Appellant submitted that the AMS erred in respect of his assessment of ADL’s; appellant further submitted that the AMS erred in failing to make a deduction pursuant to section 323 of the 1998 Act; Appeal Panel satisfied that the assessment of 2% for ADL’s is not inconsistent with evidence; Appeal Panel not satisfied that the AMS erred in failing to make a deduction; Cole v Wenaline discussed; no evidence of significant injury or condition prior to work injury; Held - MAC confirmed.

Decision date: 13 February 2020 | Panel Members: Arbitrator Deborah Moore,
Dr James Bodel and Dr Gregory McGroder | Body system: lumbar spine and scarring (TEMSKI)

Van Nguyen v Pasarela Pty Ltd [2020] NSWWCCMA 23

Injury to left wrist from which condition in right shoulder resulted; AMS assessed impairment based on range of movement (ROM); AMS compared ROM of joints referred for assessment with ROM of contralateral joints to establish baseline and subtracted impairment values for contralateral joints from calculated impairment of referred joints; worker submitted AMS applied incorrect criteria by doing so and that MAC contained demonstrable error; Held - in circumstance where no prior or subsequent injury to contralateral joint, AMS was correct to do so and therefore applied correct criteria (paragraph 2.20 of the fourth edition guidelines); MAC did not contain demonstrable error; MAC confirmed.

Decision date: 13 February 2020 | Panel Members: Arbitrator Marshal Douglas,
Dr Drew Dixon and Dr Tommasino Mastroianni | Body system: left upper extremity and right upper extremity

Toll Holdings Pty Ltd v Williamson [2020] NSWWCCMA 24

Worker claimed impairment for the right shoulder and neck; right upper extremity was referred for assessment; AMS assessed impairment on right shoulder, wrist and elbow; Held - no claim was made and no medical dispute arose in respect of the right elbow and wrist; these parts had not been referred for assessment despite the ambiguity in the referral which specified the right upper extremity; Tomislav & Ranka Divljak v Workers Compensation Commission, Aircons Pty Ltd v Workers Compensation Commission applied; appellant’s submissions that worker showed inconsistent presentation and that AMS did not use appropriate instrumentation rejected; Jones v Workers Compensation Commission as to presumption of regularity applied; worker reassessed; MAC revoked.

Decision date: 18 February 2020 | Panel Members: Arbitrator John Harris, Dr Brian Noll and Dr David Crocker | Body system: right upper extremity and cervical spine

Anglican Community Services (previously called Sydney Anglicare Home Mission Society Council) v Ragip [2020] NSWWCCMA 25

Section 323 deduction; worker stumbled and injured her right knee; x-rays one day later showed extensive degenerative change which worker said was asymptomatic; knee later gave way leading to anterior cruciate ligament reconstruction and subsequent total knee replacement; AMS did not make a deduction; extent of degenerative changes on x-ray immediately after injury warranted a one-tenth deduction; Held - MAC revoked.

Decision date: 19 February 2020 | Panel Members: Arbitrator Catherine McDonald,
Dr Tommasino Mastroianni and Dr Brian Noll | Body system: right lower extremity and scarring (TEMSKI)

Zaatini v All Asian Food Pty Limited [2020] NSWWCCMA 26

Whether demonstrable error; assessment based on incorrect criteria in assessment of activities of daily living (ADLs); history taken by AMS and other reports at odds with finding on ADLs, therefore explanation as to why 1% additional chosen required;
Held - demonstrable error on the face of the MAC; Glenn William Parker v Select Civil Pty Limited, Mahenthirarasa v State Rail Authority of New South Wales & Ors, Bjkov v ICM Property Services Pty Limited and Jones v The Registrar considered; Appeal Panel found additional 2% for ADLs; MAC revoked.

Decision date: 19 February 2020 | Panel Members: Arbitrator Ross Bell, Dr David Crocker and Dr Drew Dixon | Body system: lumbar spine