Legal Bulletin No. 38
This bulletin was issued on 03 April 2020
Issued 3 April 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.
Court of Appeal decisions
Workers compensation; determination of arbitrator; appeal to Deputy President; appeal limited to error of fact, law or discretion; whether Deputy President misunderstood scope of her jurisdiction; section 352 of the 1998 Act.
Decision date: 31 March 2020 | Before: Basten JA, Payne JA and Simpson AJA.
Appeal; further evidence; special grounds; whether further evidence relevant to appeal confined to question of law; whether further evidence not obtainable with reasonable diligence; section 75A(8) of the Supreme Court Act 1970 (NSW).
Decision date: 2 April 2020 | Before: Bell P, Leeming JA and White JA.
Application to Strike Out a Pre-Filing Statement; section 151DA of the 1987 Act.
Decision date: 25 March 2020 | Member: President Judge Phillips
Section 82A of the 1987 Act; indexation of pre-injury average weekly earnings prior to 1 April 2013 where injury received before the enactment of section 82A.
Decision date: 25 March 2020 | Member: Deputy President Elizabeth Wood
Injury to both upper extremities by reason of work activities over time; two separate operative procedures; application of section 65(2) of the 1987 Act to two separate pathologies; whether pathologies arose out of same “incident”; Department of Ageing and Homecare v Findlay and Lyons v Master Builders Association applied; Held - worker’s disease aggravated and/or deteriorated on the medical and other evidence; AMS to assess WPI by reference to latest period of incapacity determining relevant deemed date of injury.
Decision date: 19 March 2020 | Member: Arbitrator Phillip Young
Claim for lump sum compensation; accepted left shoulder injury; whether cervical spine injured in same incident; lack of contemporaneous evidence; first report of symptoms and investigations three months after incident; underlying degenerative pathology; Department of Education and Training v Ireland and Department of Aging, Disability and Home Care v Findlay considered; Held – evidence finely balanced; Arbitrator satisfied on balance of probabilities that cervical spine injured; matter remitted to Registrar for referral to AMS for assessment of degree of permanent impairment.
Decision date: 19 March 2020 | Member: Arbitrator Rachel Homan
Medical expenses; cost of MRI scan; whether effects of injury have passed, and therefore whether scan reasonably necessary; Held - evidence discloses ongoing symptoms related to injury; no suggestion treatment itself is ineffective or too costly; Bartolo v Western Sydney Area Health Service Rose v Health Commission (NSW) and Diab v NRMA Limited followed; respondent to pay costs of and incidental to proposed MRI scan of worker’s right foot.
Decision date: 19 March 2020 | Member: Arbitrator Cameron Burge
Claim for lump sum death benefits arising out of a truck accident in respect of a worker who it was claimed was either employed by an uninsured corporation, or alternatively, by a deceased person who subcontracted to the uninsured corporation at the time of the accident; both the worker and the uninsured person perished in the subject accident; Held - finding that the worker was employed by the uninsured corporation; lump sum death benefit apportioned between the deceased worker’s wife and children (in Iraq) and his parents (in Australia); orders also made in respect of the payment of lump sum death benefit, funeral expenses and payments in respect of dependent children by the Workers Compensation Nominal Insurer; applicants given leave to seek further telephone conference in respect of claim for interest pursuant to section 109 of the 1998 Act.
Decision date: 23 March 2020 | Member: Arbitrator Brett Batchelor
Death claim; consideration of whether the deceased’s employment was a substantial contributing factor to a subarachnoid haemorrhage which was the consequence of a cerebral aneurysm; consideration of whether the employment resulted in a significantly greater risk of this injury; Held - award for worker on the basis that both sections 9A and 9B of the 1987 Act were satisfied on the evidence before the Commission.
Decision date: 23 March 2020 | Member: Arbitrator Paul Sweeney
Whether proposed surgery is reasonably necessary; consideration of weight given to treating surgeon; Pelama Pty Ltd v Blake discussed; Held - respondent to pay the costs of and incidental to the surgery proposed by worker’s treating neurosurgeon; the costs incurred for that treatment are reasonably necessary for the injury the worker sustained in the employment of the respondent.
Decision date: 23 March 2020 | Member: Arbitrator Elizabeth Beilby
Claim for payment under section 38A of the 1987 Act from date of injury; Held - worker had returned to work for the respondents but was not able to perform her duties to the same extent as before she was injured; Hee v State Transit Authority of New South Wales and Melides v Meat Carter Pty Limited applied.
Decision date: 24 March 2020 | Member: Senior Arbitrator Josephine Bamber
Consequential condition dispute; injury sustained in 1995; worker exhibiting bizarre symptoms for over 20 years; material contribution considered: Murphy v Allity applied;
Held - matter remitted to AMS.
Decision date: 24 March 2020 | Member: Arbitrator John Wynyard
Worker suffered an accepted injured to her cervical spine; the only issue for determination was the extent of permanent impairment as a result of injury; the respective qualified doctors agreed that the worker suffered a 17% whole person impairment and the only issue was the extent of any deduction pursuant to section 323 of the 1998 Act; the worker requested the Commission determine permanent impairment; Held - the Commission had the power to determine permanent impairment; Etherton v ISS Properties Pty Ltd applied; it was appropriate for the Commission to determine the issue as the medical opinions on assessment were consistent save as to one matter; the determination of WPI could be properly made by the Commission as the change in Dr Machart’s opinion on the section 323 issue could be rejected on an analysis of the facts based on a reading of contemporaneous notes; finding made that the worker suffered a 15% WPI after a one-tenth deduction pursuant to section 323.
Decision date: 24 March 2020 | Member: Arbitrator John Harris
Medical Appeal decisions
Worker sustained injury on 27 April 1999; assessment under the Table of Disabilities and of WPI for a threshold assessment; AMS erred in failing to consider whether or not the pain experienced by worker resulted in impairment of her sex life; worker re-examined as insufficient evidence to make a determination; Held - MAC revoked.
Decision date: 5 March 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Richard Crane and Dr John Brian Stephenson | Body system: cervical spine, lumbar spine, right upper extremity (shoulder and wrist), left upper extremity (shoulder and wrist), sexual organs
Worker referred to the AMS for assessment in respect of a psychological injury; appeal issues were the assessment in relation to three PIRS categories; appellant worker also sought to admit extensive fresh evidence including a further statement from the worker addressing the MAC; all but one piece of evidence rejected; no errors made by the AMS with regard to all PIRS categories; appellant’s submissions merely emphasise what the AMS should have done or considered when making his assessment rather than any clear expression of error; the AMS provided strong reasons for his assessment of each class of the PIRS in the MAC; Held - MAC confirmed.
Decision date: 20 March 2020 | Panel Members: Arbitrator Deborah Moore, Dr Lana Kossoff and Professor Nicholas Glozier | Body system: psychological
Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC in relation to assessment of upper extremity, sensory changes and scarring; treatment of evidence; presumption of regularity; Campbelltown City Council v Vegan, Bjkov v ICM Property Services Pty Limited and Jones v The Registrar considered; Held - demonstrable error on the face of the MAC; omission of digit impairment resulting from range of motion finding; Held - MAC revoked.
Decision date: 20 March 2020 | Panel Members: Arbitrator Ross Bell, Dr Paul Curtin and Dr Mark Burns | Body system: left upper extremity, scarring (TEMSKI)
Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC in relation to assessment of upper extremity; impairment allocation for excision of distal clavicle as amended by the Guidelines; operation of paragraph 2.20 in the Guidelines with adjustment for uninjured contralateral joint; additional material excluded; section 328(3) of 1998 Act; Lukasevic v Coates Hire Operations Pty Limited considered; demonstrable error on the face of the MAC; assessment based on incorrect criteria; Held - MAC revoked.
Decision date: 23 March 2020 | Panel Members: Arbitrator Ross Bell, Dr Drew Dixon and Dr David Crocker | Body system: left upper extremity, cervical spine, lumbar spine
Failure to make a deduction pursuant to section 323 from a finding of whole person impairment where the AMS had determined that there was a pre-existing condition which contributed to the level of impairment; Held - demonstrable error established but upon review the Panel was satisfied there was no pre-existing condition or abnormality requiring a deduction; MAC confirmed for the reasons given by the Panel.
Decision date: 23 March 2020 | Panel Members: Arbitrator William Dalley, Dr Margaret Gibson and Dr Brian Noll | Body system: right upper extremity (shoulder) and left upper extremity (shoulder and median nerve)
Psychiatric injury; appeal by worker that AMS had erred in making a one-tenth deduction for a pre-existing condition pursuant to section 323 of the 1998 Act; appeal by employer that AMS incorrectly placed the worker in class 3 for employability rather than class 2; Held - no evidence to support a finding that any stressful events prior to the work injury constituted or caused a pre-existing injury or condition; having regard to the history provided by the worker to the AMS and the evidence before the AMS, the assessment was not made on the basis of incorrect criteria; appeal by employer dismissed; MAC revoked.
Decision date: 25 March 2020 | Panel Members: Arbitrator John Isaksen, Dr Julian Parmegiani and Professor Nicholas Glozier | Body system: psychological
AMS assessed condition not included in the referral; chapter 1.6 of the Guidelines considered; Bindah discussed; no explanation as to causal connection; Held - MAC revoked.
Decision date: 25 March 2020 | Panel Members: Arbitrator John Wynyard, Dr Brian Noll and Dr Philippa Harvey-Sutton | Body system: cervical spine, right upper extremity