Legal Bulletin No. 42

Issued 1 May 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

Dang v KD Dang Pty Ltd [2020] NSWWCC 121

Whether worker suffered aggravation of degenerative condition necessitating cervical spine fusion surgery; whether worker suffered a consequential condition to his cervical spine as a result of his accepted lumbar spine injury; whether the proposed surgery is reasonably necessary; Held - the surgery is medically necessary; the worker did not suffer an aggravation nor a consequential condition as alleged; award for the respondent.

Decision date: 16 April 2020 | Member: Arbitrator Cameron Burge

Martin v State of New South Wales (NSW Police) [2020] NSWWCC 122

Claim for resumption of weekly benefits pursuant to section 40 of the 1987 Act; whether probable earnings but for injury should be calculated by reference to rank at time of injury as opposed to worker’s present rank; Johnston v Commissioner for Railways; Held – promotion to sergeant a probable or likely career progression; the assessment required by section 40(2)(a) should be undertaken by reference to what the worker would have been earning in that rank but for the injury; respondent to pay weekly benefits pursuant to section 40. 

Decision date: 20 April 2020 | Member: Arbitrator Rachel Homan

Barrett v Newcastle City Council [2020] NSWWCC 123

Industrial Deafness; no dispute in respect of injury or last noisy employment; worker sought compensation under section 60 of the 1987 Act in respect of the provision of hearing aids; respondent disputed that hearing aids were reasonably necessary as a result of the injury; Diab v NRMA applied; Held - award for the worker.

Decision date: 21 April 2020 | Member: Arbitrator Jane Peacock

Hayes v The Wrigley Company Pty Ltd [2020] NSWWCC 125

Claim for weekly benefits and expenses pursuant to section 60 of the 1987 Act including costs of and incidental to cervical spine surgery; factual dispute as to whether there was an injurious event causing injury to the cervical spine as claimed; lack of contemporaneous evidence and delay in reporting injury; whether entitlement to future weekly benefits where worker currently in receipt of weekly benefits as a result of primary psychological injury; Held - Arbitrator satisfied that worker sustained cervical spine injury as claimed; respondent to pay costs of and incidental to proposed surgery; Arbitrator declined to award weekly compensation

Decision date: 21 April 2020 | Member: Arbitrator Rachel Homan

Prasad v Compass Group (Australia) Pty Ltd [2020] NSWWCC 126

Accepted injury to left shoulder and consequential conditions in the neck and right shoulder; dispute as to whether proposed cervical discectomy and fusion was reasonably necessary on basis of positive discogram; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd discussed and applied; Held - neck surgery was reasonably necessary; respondent to pay for proposed surgery pursuant to section 60 of the 1987 Act.

Decision date: 21 April 2020 | Member: Senior Arbitrator Glenn Capel

Medical Appeal decisions

Montebello v Mount Pritchard and District Community Club (Mounties) [2020] NSWWCCMA 74

Worker sustained injury to cervical spine and lumbar spine on 15 April 2012; assessment of WPI; history of radiation of pain to the right leg in the past and a diagnosis of right radiculopathy made by treating specialists; AMS erred in failing to make findings in his examination of the lumbar spine as to whether or not there was any muscle spasm or guarding; the assessment made on the basis of incorrect criteria; Held - MAC revoked.

Decision date: 16 April 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon | Body system: cervical spine and lumbar spine

Etcell v Cobar Management Pty Limited [2020] NSWWCCMA 75

Cervical spine and thoracic spine injury; appellant worker alleged error in assessment by the AMS in respect of the thoracic spine; AMS assessed appellant’s thoracic spine impairment within DRE Category I; error found and appellant was re-assessed by the Panel; the Panel noted that the appellant has had constant pain in his thoracic region since injury and suffered localised tenderness and asymmetry on rotation placing him in DRE Category II  pursuant to Table 15-4 of the AMA 5; symmetric loss of range of movement and non-verifiable radicular complaints; Held - MAC revoked.

Decision date: 17 April 2020 | Panel Members: Arbitrator Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder | Body system: cervical spine and thoracic spine

Speedie v State of NSW (NSW Police Force) [2020] NSWWCCMA 76

Appeal against MAC on the four grounds referred to in section 327(3) of the 1998 Act; application to admit fresh evidence to show deterioration of the appellant’s condition since date of AMS examination; appellant worker suffering from PTSD and admitted to hospital for treatment of the condition after the date of the AMS examination; appellant worker re-examined by a member of the Appeal Panel; fresh evidence admitted; finding that the appellant worker suffered a deterioration in his condition that resulted in an increase in the degree of permanent impairment; Held - MAC revoked.

Decision date: 21 April 2020 | Panel Members: Arbitrator Brett Batchelor, Dr Lana Kossoff and Dr Patrick Morris | Body system: psychological