Legal Bulletin No. 35

Issued 13 March 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

Heston v F.E. Anderson Pty Ltd [2020] NSWWCC 53

Claim for weekly benefits and medical expenses for psychological injury; whether diagnosable psychological condition; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal and discipline; capacity for suitable employment where worker commenced own IT consultancy; Held - worker sustained injury pursuant to sub sections 4(b)(i) and 11A(3) of the 1987 Act; injury not wholly or predominantly caused by reasonable action under section 11A(1) of the 1987 Act; worker had capacity for suitable employment; award for weekly benefits and medical expenses.

Decision date: 27 February 2020 | Member: Arbitrator Rachel Homan

Kennaway v Secretary, Department of Education & Communities [2020] NSWWCC 54

Application for Reconsideration of a Certificate of Determination pursuant to section 350(3) of the 1998 Act; worker failed in his application to appeal against a MAC as grounds in section 327 of the 1998 Act were not established; worker then sought a reconsideration of the Certificate of Determination on the grounds of perceived bias by the AMS, so that he could be examined by another AMS;  Woolworths Ltd v Stafford; Lizdenis v Centrel Pty Ltd; Parsonsv Dell Australia Pty Ltd; Samuel v Sebel Furniture Limited; Howell v Stringvale Pty Ltd; Pitsonis v Registrar of the Workers Compensation Commission; Petrovic v BC Serv No 14 Pty Ltd and Ors discussed and applied;  Held - Application for Reconsideration declined due to the operation of section 66(1A) of the 1987 Act, clause 11 of schedule 8 of the 2016 Regulation and section 322A of the 1998 Act.

Decision date: 27 February 2020 | Member: Senior Arbitrator Glenn Capel

Li v Brighton Australia Pty Limited [2020] NSWWCC 55

Claim for weekly compensation and medical expenses as a result of injury to left eye; worker sent from Sydney to work as a plasterer at a building site in Adelaide; injured at a restaurant in Adelaide on a Sunday evening when not working; whether injury arose out of or in the course of employment; whether employment was a substantial contributing factor; ‘camp cases’ considered; Held - award for respondent.

Decision date: 27 February 2020 | Member: Arbitrator Richard Perrignon

Christian v Rachel Gilbert Pty Ltd [2020] NSWWCC 56

Injury; consequential injury; Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, State Transit Authority of New South Wales v El-Achi, Hancock v East Coast Timber Products Pty Ltd , Kooragang Cement Pty Ltd v Bate, Comcare v Martin, March v Stramare (E & M H) Pty Limited, Flounders v Millar followed; Held - injury to cervical spine suffered in incident of fall as aggravation of disease section 4(b)(ii) of the 1987 Act; consequential injury to cervical spine due to serious injuries to shoulder and elbow and surgeries causing aggravation of cervical spine disease due to immobilisation of arm involving adhesive capsulitis.

Decision date: 28 February 2020 | Member: Arbitrator Ross Bell

Shiels v Security Specialists Australia Pty Ltd [2020] NSWWCC 57

Claim for weekly benefits compensation, medical expenses and lumbar surgery; worker employed as a security guard alleged to have suffered injuries to his back and hips by way of aggravation of an underlying arthritic condition; respondent conceded worker suffered injury to his back but said both injuries were temporary aggravations which had resolved; Held - satisfied worker suffered a primary injury to his hips under section 4(a) of the 1987 Act; Zicar v MGH Plastics Industries Pty Ltd and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd discussed; assessment of medical and expert opinion evidence on causation; satisfied work was a substantial contributing factor the worker’s hip injury; not satisfied that the back or hip injuries had resolved; award for the workers on the claim for weekly benefits compensation, medical expenses and the lumbar surgery.

Decision date: 28 February 2020 | Member: Arbitrator Nicholas Read

Micallef v IVE Employment (Australia) Pty Limited [2020] NSWWCC 58

Claim for weekly payments of compensation for lower back injury; worker claims a disease injury from undertaking many years of heavy work as machine operator even though onset of acute symptoms in lower back occur at home on a weekend; medical evidence of aggravation of disease supported by general practitioner and independent medical opinion; determination of periods of total and partial incapacity for work; Held - evidence supports finding of disease injury pursuant to section 4 (b)(ii) of the 1987 Act; award of weekly payments of compensation for three weeks of no current work capacity and partial incapacity thereafter.

Decision date: 3 March 2020 | Member: Arbitrator John Isaksen

Payten v Riverina Fresh Pty Ltd [2020] NSWWCC 59

Whether the worker sustained a primary or secondary psychological injury in the course of her employment with the respondent; Attorney General's Department v K and Baker v Southern Metropolitan Cemeteries Trust considered and applied; Held - the worker did not suffer a consequential (secondary) psychological injury as a result of the accepted injury to her lumbar spine on 4 May 2018; the worker suffered a primary psychological injury in the course of her employment with the respondent on 28 November 2018 (deemed) within the meaning of section 4(b)(i) of the Workers Compensation Act 1987, to which employment was the main contributing factor; the worker has had no current work capacity within the meaning of section 32A of the Workers Compensation Act 1987 from 28 November 2018.

Decision date: 3 March 2020 | Member: Arbitrator Anthony Scarcella

Picken v State of New South Wales (NSW Police Force) [2020] NSWWCC 60

Claim for permanent impairment and pain and suffering for police officer for injury to the left knee and scarring from surgery and consequential condition affecting the lumbar spine; respondent disputes consequential condition affecting the lumbar spine; review of evidence; consideration of Moon v Conmah P/L; Held - not satisfied that worker has sustained consequential condition affecting the lumbar spine and award for the respondent for that claim; referral to AMS for assessment of permanent impairment of left knee and scarring.

Decision date: 3 March 2020 | Member: Arbitrator John Isaksen

Usher v Lend Lease Project Management & Consultation (Australia) Pty Limited [2020] NSWWCC 61

Proactive offers by insurers before 19 June 2012; whether the worker complied with sections 260 and 282 of the 1998 Act and was entitled to receive lump sum compensation for pain and suffering pursuant to section 67 of the 1987 Act; division 3 clause 15 of schedule 6 of the 1987 Act and clause 10 of schedule 8 of the Workers Compensation Regulations 2016 considered; Goudappel v ADCO Constructions Pty Limited & Anor, ADCO Constructions Pty Ltd v Goudappel, Yildiz v Fullview Plastics Pty Ltd, Frick v Commonwealth Bank of Australia, Woolworths Ltd v Wagg, Halloran v Rail Corporation NSW,  White v Royal Society for Prevention of Cruelty to Animals t/as RSPCA, Eaton v Kerry Ingredients Pty Ltd, Newbold v Bi-Lo Pty Ltd, Bianco v ANZ Banking Group Ltd, Hobson v CGI Technologies & Solutions Australia Pty Ltd,  Tyler v Marsden Industries, and New South Wales Police Force v Cursley discussed and applied; Held - worker entitled to award for pain and suffering pursuant to section 67 of the 1987 Act in existence prior to the 2012 amendments.

Decision date: 3 March 2020 | Member: Senior Arbitrator Glenn Capel

Bunce v State of New South Wales – Central Coast Local Health District t/as Gosford Hospital [2020] NSWWCC 62

Claim under the 1987 Act for section 60 medical expenses; whether assistance dog reasonably necessary; whether assistance dog “medical treatment” as defined in section 59 of the 1987 Act; Held - award for worker.

Decision date: 4 March 2020 | Member: Arbitrator John Wynyard

Medical Appeal decisions

Australia Training & Job Solutions Pty Ltd v Kozlowska [2020] NSWWCCMA 32

Worker referred to an AMS for assessment in respect of the right upper extremity (right shoulder), the cervical spine, and scarring (TEMSKI) resulting from an injury on 25 August 2014; extensive evidence of significant pre-existing injuries/conditions; AMS only deducted one-tenth pursuant to section 323 of 1998 Act; Held - Appeal Panel determined a one-half deduction warranted for the right shoulder and cervical spine; MAC revoked.

Decision date: 27 February 2020 | Panel Members: Arbitrator Deborah Moore,
Dr David Crocker and Dr John Brian Stephenson | Body system: right upper extremity (right shoulder), cervical spine and scarring (TEMSKI)

St Kyros Cranes Pty Ltd v Haddad [2020] NSWWCCMA 33

Appeal as to methodology used by AMS in assessing primary and secondary psychological injury in relation to section 65A of the 1987 Act; Appeal Panel called for submissions in relation to jurisdiction; Held - referral to AMS beyond jurisdiction; State of NSW v Kaur and Jaffarie applied; inconsistent Supreme Court decisions noted; MAC revoked and matter referred to Registrar.

Decision date: 28 February 2020 | Panel Members: Arbitrator John Wynyard,
Dr Julian Parmegiani and Dr Michael Hong | Body system: psychological injury

Civkaroska v State of New South Wales [2020] NSWWCCMA 34

Appeal from assessment of right knee; arbitrator had determined that pre-existing degenerative condition of the knee was aggravated by nature and conditions of employment over 30 years; Registrar referred knee for assessment as a result of injury on a date of injury deemed by section 16 of the Workers Compensation Act 1987; approved medical specialist assessed impairment as a result of frank injury on an earlier date; whether assessment beyond power; whether approved medical specialist failed to exercise jurisdiction in accordance with the referral; Held - error demonstrated; MAC set aside and replaced.

Decision date: 2 March 2020 | Panel Members: Arbitrator Richard Perrignon,  Dr John Brian Stephenson and Dr Philippa Harvey-Sutton | Body system: right lower extremity (knee)

Kinealy v State of New South [2020] NSWWCCMA 35

AMS erred in limiting assessment of the upper extremity impairment to the right finger and failed to give adequate reasons for excluding the assessment of the wrist and shoulder; insufficient evidence to make a determination; worker re-examined; Held - MAC revoked.

Decision date: 2 March 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Drew Dixon and Dr Philippa Harvey-Sutton | Body system: right upper extremity (finger)

Shoalhaven City Council v Edwards [2020] NSWWCCMA 36

Appeal by respondent employer; worker referred to an AMS for assessment in respect of the right upper extremity, cervical spine and scarring (TEMSKI) resulting from an injury on 16 September 2016; alleged error by AMS in respect of ADLs; AMS should also have deducted more than one tenth from this (in accordance with his own assessment of a deduction under section 323 of the 1998 Act); AMS erroneously included an assessment of permanent impairment of right elbow; Held - AMS failed to add together the assessments in respect of the cervical spine and ADLs, which results in a figure of 7% WPI, not 8% as he found; AMS also erred in making an assessment with respect to the ulnar nerve when only the right shoulder was referred for assessment; however no error by the AMS in his one-tenth deduction because there was no clear evidence that the actual consequences of the pre-existing condition contributed in any significant way to the overall impairment; MAC revoked.

Decision date: 3 March 2020 | Panel Members: Arbitrator Deborah Moore, Dr David Crocker and Dr Brian Noll | Body system: digestive system and visual system

Rural Co Holdings Pty Ltd v Moore [2020] NSWWCCMA 37

Psychiatric injury; appellant employer submitted AMS had not had proper regard to records of respondent’s bank transactions and had not done a forensic analysis of those records; appellant submitted that as a consequence the history the AMS obtained was inaccurate and that the MAC contained a demonstrable error; Held - Appeal Panel satisfied that the AMS had regard to the bank records and found that they were not relevant to the assessment of impairment; the Appeal Panel considered that the bank records lacked context and did not assist with the assessment of the respondent’s impairment; MAC confirmed.

Decision date: 3 March 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: psychological injury