Legal Bulletin No. 37

Issued 27 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

Capablanca v Contamination Control Laboratories Pty Ltd [2020] NSWWCC 75

Claim for lump sum compensation and medical expenses (hearing aids) for noise induced hearing loss; whether worker was excused from complying with notice of injury and notice of claim provisions in section 254 and 261 of the 1998 Act; Held – satisfied worker was not aware of his rights to bring a claim for compensation for “further loss”; Arbitrator satisfied that the worker was not aware that he had received the injury until receipt of report from specialist; applied Inghams Enterprises Pty Ltd v Jones; Unilever Australia Ltd v Petrevska; Fairfield City Council v Deguara; award for the worker on the claim for lump sum compensation and medical expenses.

Decision date: 12 March 2020 | Member: Arbitrator Nicholas Read

Kennedy v Woolworths Group Limited [2020] NSWWCC 76

Claim for weekly benefits and medical expenses in respect of spinal injury and primary psychological injury; claim for lump sum compensation for primary psychological injury; whether psychological injury wholly or predominantly caused by reasonable action with respect to provision of employment benefits and discipline; whether effects of spinal injury had ceased; Held - defence in section 11A(1) of the 1987 Act established; award for the respondent for primary psychological injury; worker remained totally incapacitated and in need of medical treatment for spinal injury.

Decision date: 13 March 2020 | Member: Arbitrator Rachel Homan

Kennewell v ISS Facility Services Australia Ltd t/as Sontic Pty Ltd [2020] NSWWCC 77

Application to rescind COD and to refer matter to AMS for further assessment or reconsideration; deterioration in worker’s condition not disputed; purpose of appeal to establish threshold for work injury damages claim under section 151H of the 1987 Act;     Held – matter is to be dealt with on the merits of the worker’s reconsideration application; COD set aside; worker entitled to lodge application to appeal of the 2015 Medical Assessment Certificate for the purposes of seeking to establish the work injury damages threshold; application to refer the matter for further assessment or reconsideration refused.

Decision date: 13 March 2020 | Member: Arbitrator Nicholas Read

Johnstone v Tammy Schmetzer [2020] NSWWCC 78

Whether left triple arthrodesis and bone grafting surgery proposed by the workers’ treating orthopaedic surgeon is reasonably necessary treatment; whether injury sustained by the applicant in the course of his employment with the respondent on 15 February 2007 within the meaning of section 60 of the 1987 Act; whether the Commission is prevented from making an order for the respondent to pay the costs of and ancillary to the proposed surgery; Kooragang Cement Pty Ltd v Bates; Murphy v Allity Management Services Pty Ltd; Diab v NRMA Ltd; Rose v Health Commission (NSW) and Flying Solo Properties Pty Ltd t/as Artee Signs v Colette considered and applied; BlueScope Steel Limited v Jovanovski considered and distinguished; Held -  the proposed surgery is reasonably necessary as a result of injury; further Held - the Commission does not have the power to order the respondent to pay the cost of the proposed surgery at this time due to the operation of section 59A of the 1987 Act.

Decision date: 16 March 2020 | Member: Arbitrator Anthony Scarcella

Michaels v Kincare Health Services Pty Limited [2020] NSWWCC 79

Psychological injury; main contributing factor; inconsistencies in history of prior psychological condition; late documents demonstrated more complex pre-existing condition than either expert realised;  no denial of allegations against respondent; Held - inconsistencies not relevant to near catastrophic effect of respondent behaviour; award for the worker pursuant to section 60 and 66 of the 1987 Act.

Decision date: 16 March 2020 | Member: Arbitrator John Wynyard

Pemberton v Westpac Banking Corporation [2020] NSWWCC 80

Bank manager suffered a psychological injury; deficiencies in lending approvals discovered as part of a hindsight review; meetings held to discuss results after which worker was placed on special leave; worker had undergone psychiatric treatment for more than two years while continuing to work;  defence under section 11A of the 1987 Act raised;  Held – worker had suffered injury before the meetings so that the respondent’s action was not the whole or predominant cause of the injury;  award for the worker.

Decision date: 17 March 2020 | Member: Arbitrator Catherine McDonald

Medical Appeal decisions

Brown v Playhouse Pre-School Pty Ltd [2020] NSWWCCMA 51

Psychological injury; PIRS descriptors alleged to be criteria and incorrectly applied by AMS; Ferguson applied; no error found; demonstrable error alleged; claim that AMS failed to consider statement; Jones applied; presumption of regularity not displaced; Held - appeal dismissed; MAC confirmed.

Decision date: 13 March 2020 | Panel Members: Arbitrator John Wynyard, Dr Michael Hong and Dr Lana Kossoff | Body system: psychological

Broadspectrum (Australia) Pty Ltd v Hubbard [2020] NSWWCCMA 52

Worker referred to the AMS for assessment in respect of a psychological injury; appeal issues were in relation to the assessment  of several PIRS categories and a claim that the AMS failed to take certain evidence into account; the MAC was extremely thorough and detailed; the evidence supported all the ratings made; no errors identified; appellant employer’s arguments merely a commentary on the MAC; mere disagreement not a proper basis for appeal; appellant effectively cherry picked those aspects of the evidence and history recorded which fit the narrative it seeks to make; Held - MAC confirmed.

Decision date: 13 March 2020 | Panel Members: Arbitrator Deborah Moore, Dr Lana Kossoff and Dr Patrick Morris | Body system: psychological

Thomas Elmes Racing v Waters [2020] NSWWCCMA 53

Worker suffered a traumatic Brain injury; demonstrable error on the basis that AMS failed to give adequate reasons; Bojko and Jones cited and applied;  re-examination required by the Appeal Panel; AMA 5 Chapter 13 discussed; WPI increased; Held – MAC revoked.

Decision date: 13 March 2020 | Panel Members: Arbitrator John Wynyard,
Dr Robin Fitzsimons and Dr Sophia Lahz | Body system: nervous system

Pritchard v Australia Personnel Global Pty Ltd [2020] NSWWCCMA 54

Abattoir worker suffered pain in both wrists; AMS failed to carry out usual provocative tests; re-examination required by the Appeal Panel; nerve conduction studies suggested bilateral carpal tunnel syndrome; on examination, left arm symptoms were not consistent with any diagnosis; AMA 5 provides that objectively verifiable diagnosis is necessary despite positive nerve conduction studies; Held - MAC revoked.

Decision date: 16 March 2020 | Panel Members: Arbitrator Catherine McDonald,  Dr Mark Burns and Dr Brian Noll | Body system: right upper extremity and left upper extremity

ESTO Pty Limited v Kimba Stanaway [2020] NSWWCCMA 55

Respondent worker suffered injury in 1990 to neck, shoulders, wrists and hands; matter referred for table of disabilities assessment and WPI assessment; appellant employer submitted that AMS did not adequately explain how present losses/impairment relates to 1990 injury, that AMS did not consider all of the evidence, and that AMS did not apply correct criteria to make a deduction pursuant to section 323 of the 1998 Act; Appeal Panel rejected these submissions; Held - MAC confirmed.

Decision date: 17 March 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Tommasino Mastroianni and Dr John Ashwell | Body system: Neck Right arm at or above the elbow and left arm at or above the elbow

Barresi v Electrolux Home Products Pty Limited [2020] NSWWCCMA 56

Psychological Injury; appellant worker alleged error assessment by the AMS under the social functioning and employability categories in the Permanent Impairment Rating Scale; in respect of social functioning the AMS did not make a demonstrable error or assess on the basis of incorrect criteria; in respect of employability, the AMS assessed Class 3 moderate impairment in circumstances where the clinical findings, history given and the other evidence fulfilled the criteria for classification as  severely impaired at Class 4; Held - MAC revoked.

Decision date: 18 March 2020 | Panel Members: Arbitrator Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong | Body system: psychological