Legal Bulletin No. 36

Issued 20 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

Brice v Workers Compensation Nominal Insurer (iCare) & others [2020] NSWWCC 64

Jurisdiction of commission; whether respondent may rely on reply where argued to be out of time; whether reply and/or application should be struck out; hearing loss claim where last employer noisy; employed worker allegedly 55 years ago; meaning of “claim”, “dispute” and “relevant particulars”; on the facts relevant particulars requested so that time for reply extended; alternatively if leave required it is given under section 289(4) of the 1998 Act; Held - substantial merits without regard to technicalities or legal forms; neither pleading struck out; matter remitted to Registrar for referral to an AMS.

Decision date: 5 March 2020 | Member: Arbitrator Philip Young

Morkos v Primo Retail Pty Ltd [2020] NSWWCC 65

Dispute regarding a psychological injury; Attorney General’s Department v K, Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Stewart v NSW Police Service, Commonwealth of Australia v Smith discussed and applied; Held - worker sustained section 4(b)(i) injury pursuant to the 1987 Act and entitled to payment of weekly compensation and medical expenses.

Decision date: 5 March 2020 | Member: Senior Arbitrator Glenn Capel

Byrnes v Steel Building Systems QLD Pty Limited [2020] NSWWCC 66

Claim for the cost of proposed disc replacement at the C5/6 level of the cervical spine as a result of injury in the course of employment; injury to the cervical spine disputed; section 4 and section 9A of the 1987 Act; no issue that the worker suffered a significant injury to the left arm as a result of injury when a heavy metal frame fell onto his arm; Held - worker suffered injury to the cervical spine as a result of the injurious event; Kooragang and Lyons v Master Builders Associations of NSW Pty Ltd discussed and applied; the employment concerned was a substantial contributing factor to the injury pursuant to section 9A of the 1987 Act; Bedawi v Nexon Asia Pacific Pty Ltd t/as Comannder Australia Pty Ltd and Taylor v PJM Building Management Pty discussed and applied; proposed cervical spine surgery reasonably necessary and related treatment as a result of injury; section 60 of the 1987 Act; Rose v Health Commission and Diab discussed and applied.

Decision date: 6 March 2020 | Member: Arbitrator Grahame Edwards

Buckley v JBT Logistics Pty Ltd [2020] NSWWCC 67

Accepted shoulder injury and chronic pain; no dispute regarding shoulder impairment; neck injury disputed; Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd Davis v Council of the City of Wagga Wagga discussed and applied; Held - award for respondent in respect of alleged neck injury; chronic pain referred to AMS for assessment.

Decision date: 9 March 2020 | Member: Senior Arbitrator Glenn Capel

Davies v Ausgrid Management Pty Ltd [2020] NSWWCC 68

Worker sustained back injury while pulling cables on 4 July 2018; whether the surgery, namely, an anterior lumbar interbody spacer at L4/5 and L5/S1 augmented by posterior pedicle screw fixation at L5/S1 was reasonably necessary as a result of the accepted injury; Held - the proposed surgery was reasonably necessary as a result of the injury on 4 July 2018; respondent to pay costs of and associated with the proposed surgery.

Decision date: 10 March 2020 | Member: Arbitrator Carolyn Rimmer

Odisho v Challenge Recruitment Limited [2020] NSWWCC 69

Worker suffered a disease injury in 2007 and was awarded weekly and permanent impairment compensation; Jaffarie discussed; whether the worker also suffered an injury on his left shoulder in 2007; Held - award for the worker.

Decision date: 10 March 2020 | Member: Arbitrator Catherine McDonald

Woods v Shade Australia Pty Ltd [2020] NSWWCC 70

Claim for lump sum compensation; accepted left hip injury; whether consequential right hip condition; minimal evidence from treating practitioners; reliance on medicolegal report; Arquero v Shannons Anti Corrosion Engineers Pty Ltd considered; Held - facts as found presented a fair climate for the acceptance of medicolegal opinion on causation of symptoms and restrictions in right hip; right hip condition found to be consequential to left hip injury; matter remitted to Registrar for referral to AMS for assessment of degree of permanent impairment.

Decision date: 10 March 2020 | Member: Arbitrator Rachel Homan

AX v AY [2020] NSWWCC 71

Claim permanent impairment for psychological injury; worker claims various incidents at work caused aggravation of disease and relies upon section 4(b)(ii) of 1987 Act; failure of expert evidence relied upon by worker to take into account prior psychological symptoms and treatment, and to opine as to whether worker’s employment was main contributing factor to aggravation of a disease; Held - award for the respondent.

Decision date: 11 March 2020 | Member: Arbitrator John Isaksen

Hammond v Adam Nelson Painting and Decorating & Another [2020] NSWWCC 72

Worker suffered cervical and thoracic spinal injuries when he fell from height; in an earlier decision it was held that the applicant was a “worker” employed by the uninsured first respondent; written submissions were then directed as to the calculation of the PIAWE in a situation where it was held that the worker was a casual employee who entered into a series of contracts with the first respondent and others; Held - section 44C(2) of the 1987 Act as preserved by the transitional provisions applied and PIAWE calculated on the basis of earnings history.

Decision date: 11 March 2020 | Member: Arbitrator William Dalley

Spanos v Transport Fleet Services (NSW) Pty Limited and Kings Consolidated Group Pty Limited trading as Kings Transport & Logistics [2020] NSWWCC 73

Rule 15.1 of the Workers Compensation Commission Rules; Morgan v Hacken Pty Limited [2004] NSWWCCPD 83 considered; Held - proceedings are a nullity; matter struck out.

Decision date: 11 March 2020 | Member: Arbitrator Michael Wright

Zheng v Xin Xun Feng & Another [2020] NSWWCC 74

Claim for medical expenses; whether aggravation to cervical spine is ongoing or overtaken by degenerative changes; medical expenses; whether proposed cervical fusion is reasonably necessary; Held - worker suffered ongoing aggravation to cervical spine as a result of nature and conditions of employment with respondents; proposed surgery reasonably necessary.

Decision date: 11 March 2020 | Member: Arbitrator Cameron Burge

Medical Appeal decisions

Burton v Queanbeyan Racing Club [2020] NSWWCCMA 38

Whether demonstrable error on the face of the MAC due to dysesthesia not being assessed; Table 17-37 of AMA 5; paragraph 3.32 of the Guidelines; whether history consistent with diagnosis of dysesthesia; Held - history taken by AMS consistent with dysesthesia; irrelevant feature of hypersensitivity considered by AMS in finding dysesthesia not present; that it was not assessed is a demonstrable error; MAC revoked.

Decision date: 5 March 2020 | Panel Members: Arbitrator Ross Bell, Dr Michael Fearnside and Dr Ross Mellick | Body system: lumbar spine, right lower extremity (peripheral nerve) left lower extremity (peripheral nerve)

Secretary, Department of Education v Jacobs [2020] NSWWCCMA 39

Worker suffered a lumbar spine injury and underwent a multi-level laminectomy; AMS assessed the surgery as involving a further four levels and also assessed the section 323 deduction at one-tenth; the appellant employer submitted that the previous section 66 compensation equated to a section 323 deduction by reason of s 68B(3) and/or by reason of previous medical opinion; Held - the MAC contained inconsistent assessments for the number of surgical levels; the contemporaneous medical evidence established that the worker underwent a three-level laminectomy; the finding of fact by the AMS that the worker underwent a further four levels was a demonstrable error as discussed in Vannini v Worldwide Demolitions Pty Ltd; section 68B(3) did not apply as the worker was not paid compensation by a “previous relevant employer”; submissions that the AMS should have adopted prior section 323 assessments based on prior medical evidence also rejected as AMS not bound by prior agreements as discussed in Abou-Haidar v Consolidated Wire Pty Ltd.

Decision date: 5 March 2020 | Panel Members: Arbitrator John Harris, Dr Roger Pillemer and Dr Tommasino Mastroianni | Body system: lumbar spine and skin

Coles Supermarkets Australia Pty Ltd v Smith [2020] NSWWCCMA 40

Worker referred to the AMS for assessment in respect of a psychological injury; appeal issues were in relation to two PIRS categories and the making of an adjustment for the effect of treatment by the AMS; error by the AMS in respect of the effects of treatment as this was not compatible with the Guidelines; the AMS noted sertraline treatment resulted in a mild improvement only; the treatment of the worker’s condition has not resulted in substantial or total elimination of his permanent impairment; findings by the AMS in regards to the PIRS categories confirmed; the AMS may well have erred on the side of generosity in his assessments, but that is not an error within the meaning of Sections 327(3)(c)/(d) of the 1998 Act; Held - MAC revoked.

Decision date: 5 March 2020 | Panel Members: Arbitrator Deborah Moore, Dr Nicholas Glozier and Dr Michael Hong | Body system: psychological

Marshall v Coles Supermarkets Australia Pty Ltd [2020] NSWWCCMA 41

Appeal based on allegation of incorrect criteria and demonstrable error with respect to assessment of whole person impairment resulting from a psychological injury; worker submits error with respect to three areas of function in assessing the PIRS ratings; Held - upon reconsideration of the whole of the evidence the Appeal Panel concluded that it was open to the AMS in each case to exercise his clinical judgement; the ratings assessed were each open to the AMS on the evidence and were not made on the basis of incorrect criteria and no demonstrable error was established; MAC confirmed.

Decision date: 6 March 2020 | Panel Members: Arbitrator William Dalley, Professor Nicholas Glozier and Dr Patrick Morris | Body system: psychological

Lindsay Transport Pty Ltd v Linn [2020] NSWWCCMA 42

Truck driver stood on an inspection hatch which tipped up resulting in his right leg falling into a water tank; injury to right shoulder, right hip and lumbar spine; AMS made one-tenth deduction under section 323 in respect of lumbar spine and right lower extremity; employer argued that deduction of one-tenth was insufficient being at odds with the available evidence, relying on paragraph 1.28 of the Guidelines rather than the words of section 323; no evidence that degenerative changes were symptomatic; deduction of one-tenth was an appropriate exercise of clinical judgement; Held - MAC confirmed.

Decision date: 9 March 2020 | Panel Members: Arbitrator Catherine McDonald, Dr James Bodel and Dr Gregory McGroder | Body system: lumbar spine and right lower extremity

Secretary, Department of Communities and Justice (NSW Trustee & Guardian) v Ardern [2020] NSWWCCMA 43

Psychological injury; appeal from assessment of psychiatric impairment; whether error demonstrated in respect of PIRS categories of self-care and personal hygiene, travel and employability; Held - no error demonstrated; MAC confirmed.

Decision date: 10 March 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Michael Hong and Dr Julian Parmegiani | Body system: psychological injury

Egan v RK and Co Pty Ltd [2020] NSWWCCMA 44

Injury to cervical spine and right upper extremity; worker alleged deterioration in impairment since MAC; worker relied on an MRI referral only and no other evidence; Held - insufficient evidence to establish deterioration and disturb findings of AMS; MAC confirmed.

Decision date: 10 March 2020 | Panel Members: Arbitrator Jane Peacock, Dr Drew Dixon and Dr Margaret Gibson | Body system: cervical spine and right upper extremity (shoulder)

Royal Fastform Pty Ltd v Brown [2020] NSWWCCMA 45

Injury to lumbar spine, left upper extremity, right upper extremity; appellant employer alleged error because the AMS made no deduction under section 323 and provided no reasons; available evidence showed that the pre-existing condition, abnormality or injury in the lumbar spine contributed to the level of permanent impairment assessed for the lumbar spine and this should have been taken into account by the AMS under section 323; Held - MAC revoked.

Decision date: 10 March 2020 | Panel Members: Arbitrator Jane Peacock, Dr Drew Dixon and Dr Mark Burns | Body system: lumbar spine, right upper extremity and left upper extremity

Fire and Rescue NSW v Cromack [2020] NSWWCCMA 46

Whether additional material should be admitted in evidence before the Panel (section 327(3)(b) of the 1998 Act); Lukasevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Limited and Ors; whether assessment based on incorrect criteria and whether demonstrable error on the face of the MAC in relation to the PIRS assessments; whether specific document taken into account; Mahenthirarasa v State Rail Authority of New South Wales & Ors, Glenn William Parker v Select Civil Pty Limited and Campbelltown City Council v Vegan considered; Held - grounds of appeal not made out; MAC confirmed.

Decision date: 11 March 2020 | Panel Members: Arbitrator Ross Bell, Dr Lana Kossoff and Dr Doug Andrews | Body system: psychological

JBS Australia Pty Limited v Morgan [2020] NSWWCCMA 47

Assessment of permanent impairment in respect of the hip; abattoir worker injured her right knee, hip and wrist; no complaint regarding knee and wrist; AMS assessed fracture of neck of femur under Table 17-33 of AMA 5 without regard to amendments made by paragraph 3.28 of Guidelines; Held - MAC revoked.

Decision date: 11 March 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Drew Dixon and Dr Tommasino Mastroianni | Body system: right lower extremity, right upper extremity and scarring

Rhodes v Taree Truck Centre Pty Ltd [2020] NSWWCCMA 48

Assessment of permanent impairment in respect of the thoracic and lumbar spine; mechanic missed top step when climbing down from truck, falling heavily onto his feet; no complaint regarding knee and wrist; AMS found worker difficult to examine and did not complete examination of lumbar spine, relying on radiology to determine that worker did not suffer a lumbar spine injury; re-examination required; Held - MAC revoked.

Decision date: 6 March 2020 | Panel Members: Arbitrator Catherine McDonald,  Dr Gregory McGroder and Dr Roger Pillemer | Body system: thoracic spine and lumbar spine

ABB Australia Pty Limited v Starcic [2020] NSWWCCMA 49

Injury to lumbar spine, right upper extremity and scarring; appeal in relation to assessment for right upper extremity and scarring; appellant worker alleged error in approach of AMS in failing to properly apply the criteria in paragraph 2.20 of the Guidelines by failing to use the uninjured left upper extremity as a baseline for the calculation of impairment for the right upper extremity; the AMS used the uninjured joint to form the basis of the deduction under section 323; the Appeal Panel found that the AMS erred and the AMS should have used the injured joint as the baseline measurement when calculating the overall impairment of the right upper extremity and then in the circumstances of this case make a deduction under section 323 to take account of the contribution of the pre-existing injury to the level of permanent impairment assessed for the right upper extremity; Held - MAC revoked.

Decision date: 11 March 2020 | Panel Members: Arbitrator Jane Peacock,  Dr John Ashwell and Dr Margaret Gibson | Body system: lumbar, right upper extremity and scarring

Williams v Kypreos Civil Engineering Pty Ltd [2020] NSWWCCMA 50

Psychological injury; Appeal Panel found MAC contained demonstrable error because AMS had not provided cogent reasons with respect to a medically contestable issue being the extent to which AMS attributed the worker’s impairment to the psychological injury and the extent to which AMS attributed it to a brain injury; Held - MAC revoked.

Decision date: 11 March 2020 | Panel Members: Arbitrator Marshall Douglas, Dr Julian Parmegiani and Dr Patrick Morris | Body system: psychological