Legal Bulletin No. 45

Issued 22 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

Burnie v Ku-ring-gai Council [2020] NSWWCC 141

Determination of application by respondent to cross-examine worker and conduct face to face arbitration hearing; factual disputes; credibility in issue; exchange of written statements; Held – Arbitrator not satisfied it is necessary to cross-examine worker in order to resolve factual disputes; application declined.

Decision date: 7 May 2020 | Member: Arbitrator Rachel Homan

Holmes v State of New South Wales [2020] NSWWCC 142

Dispute as to whether the worker’s psychological injury was wholly or predominantly caused by reasonable action taken by the respondent with respect of performance appraisal and discipline; section 11A of the 1987 Act; proposed meeting to discuss excessive leave and communication issues; evidence disclosed long term stressors that were not adequately addressed; Pirie v Franklins Ltd, Department of Education & Training v Sinclair, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Irwin v Director-General of School Education, Northern NSW Local Health Network v Heggie, Kushwaha v Queanbeyan City Council, Attorney General’s Department v K and Hamad v Q Catering Limited discussed and applied; Held - respondent’s actions not reasonable; worker had no current work capacity and entitled to weekly compensation and medical expenses.

Decision date: 7 May 2020 | Member: Senior Arbitrator Glenn Capel

James v Mackellar Care Services Limited [2020] NSWWCC 143

Accepted injury to the right upper extremity; dispute regarding causation of cervical spine; absence of contemporaneous complaints; Held – worker had ample opportunity to have cervical spine recorded in medical consultations and worker’s own statement up to four months post injury; first complaints eight months post injury; injury to cervical spine not established on the balance of probabilities; award for respondent regarding cervical spine allegation; right upper extremity remitted to Registrar for referral to AMS.

Decision date: 7 May 2020 | Member: Arbitrator Philip Young

Al Najjar v Direct Freight (Aust Pty Limited) [2020] NSWWCC 144

Whether need for proposed lumbar surgery results from the compensable injury; whether surgery as proposed is reasonably necessary; Held - injury of the aggravation of disease resulted in the need for the proposed lumbar surgery; surgery proposed reasonably necessary; Kooragang Cement Pty Ltd v Bates; Comcare v Martin; Murphy v Allity Management Services Pty Ltd; March v Stramare (E & M H) Pty Limited; Flounders v Millar; Rose v Health Commission (NSW) (Rose); Diab v NRMA Ltd; and Pelama Pty Ltd v Blake followed.

Decision date: 8 May 2020 | Member: Arbitrator Ross Bell

Don v The Secretary, Ministry of Health NSW [2020] NSWWCC 145

Accepted injury to lumbar spine; dispute as to whether proposed L4/5 laminotomy and decompression 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 - back surgery was reasonably necessary; respondent to pay for proposed surgery pursuant to section 60 of the 1987 Act

Decision date: 8 May 2020 | Member: Senior Arbitrator Glenn Capel

Gaydon v The Castlereagh Hotel Dubbo & Ors [2020] NSWWCC 146

Whether death of worker from heart attack was as a result of earlier injury; deceased suffered a back injury in March 2012, for which liability was declined; in November 2012 the worker attended a hearing at the Commission and was subject to cross-examination on personal matters and credit; worker suffered fatal heart attack on the plane journey home post hearing; the arbitrator’s reserved decision found in favour of the worker on the back injury; Held - the effect of the stress from the hearing was causally linked to the fatal heart attack; on a common-sense examination of the causal chain, the fatal heart attack was a result of the injury in March 2012; Kooragang Cement Pty Ltd v Bates applied;  the decision in Kooragang simply requires a common-sense evaluation of the causal chain; there is no reason why, where that chain remains unbroken, an injury or death suffered at or in connection with the hearing of a claim should be excluded: Karathanos v Industrial Welding Co Limited distinguished; award for the applicant; first respondent is ordered to pay death benefit equally between applicant and second and third respondents and to pay the deceased’s funeral expenses.

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

Hicks v Presbyterian Aged Care [2020] NSWWCC 147

Psychological injury; lump sum claim; issue whether primary injury or secondary; Held - the worker did not suffer a primary psychological injury; award for the respondent in relation to lump sum claim

Decision date: 11 May 2020 | Member: Senior Arbitrator Josephine Bamber

Mowczan v Asplundah Tree Expert (Australia) Pty Ltd and Ausgrid Management Pty Ltd [2020] NSWWCC 148

Second respondent sought leave under section 289A(4) of the 1998 Act for Commission to deal with an unnotified matter of whether worker suffered injury to his thoracic spine arising out of or in the course of his employment; Mateus v Zodune Pty Ltd considered; Held - leave refused; matter remitted to Registrar for referral to AMS

Decision date: 12 May 2020 | Member: Arbitrator Marshal Douglas

Zhu v State of NSW (St Vincent’s Hospital Sydney Limited) [2020] NSWWCC 149

Section 11A of the 1987 Act; reasonable action with respect to discipline; misconduct allegations against nurse regarding inadequate recording of patient’s observations prior to death of patient; allegations detailed and formal;  interview process performed ; worker exonerated as not her observations; Heggie, Irwin considered; Held – respondent could have determined worker’s involvement before very serious allegations made; not fair; not reasonable; award for the worker in respect of weekly payments and section 60 expenses.

Decision date: 12 May 2020 | Member: Arbitrator Philip Young

Barkat v First Choice Tiling [2020] NSWWCC 150

Whether worker suffered injury to the cervical spine and lumbar spine in incident of injury; whether medical opinion relied on addressed the question to be determined as to causation; Held - injury to the cervical spine and lumbar spine in the course of employment; medical report relied on by worker taken as a whole addressed the question at issue; evidence overall to be taken into account; North Coast Area Health Service v Felstead; Military Rehabilitation and Compensation Commission v May; State Transit Authority of New South Wales v El-Achi; Kooragang Cement Pty Ltd v Bates followed.

Decision date: 13 May 2020 | Member: Arbitrator Ross Bell

Ghanem v Dan Kitchen Australia Pty Limited [2020] NSWWCC 151

Claim for cost of shoulder surgery pursuant to section 60 of the 1987 Act; worker alleges medical condition of shoulder materially aggravated by fall at home caused by accepted back injury; attack on worker’s reliability; conflicting contemporaneous medical evidence in respect of cause of fall and whether shoulder injured in fall; conflicting medical opinions as to whether back pathology could cause fall; Held - award for worker.

Decision date: 13 May 2020 | Member: Arbitrator Paul Sweeney

Sinitsky v Workpac Constructions Pty Ltd [2020] NSWWCC 152

Work capacity dispute; worker suffered injury to the right wrist; at the time of the injury the worker had concurrent employment with a hotel where he was provided with free accommodation and food; issue arose concerning the assessment of the worker’s PIAWE noting the concurrent employment paid by way of a non-pecuniary benefit; Held - non-pecuniary benefit assessed pursuant to section 44F of the 1987 Act; findings made of worker’s capacity at various periods;  awards made at varying rates based on both current work capacity and no current capacity.

Decision date: 13 May 2020 | Member: Arbitrator John Harris

Townsend v Sebastian Consulting & Technical Services Pty Ltd  [2020] NSWWCC 153

Worker suffered an accepted injury to her right knee and consequential condition to the right ankle resulting in a total knee replacement; the parties agreed on the worker’s overall whole person impairment and the only issue for determination was the extent of any deduction pursuant to section 323 of the 1998 Act; Held - the Commission had the power to determine permanent impairment; Etherton v ISS Properties Pty Ltd applied; discussion of relevant principles concerning section 323 deduction; worker’s submission that asymptomatic condition meant that no section 323 deduction rejected; Vitaz v Westform applied; IME qualified doctor made a number of errors in section 323 including assessing deduction based on pre-existing impairment which was inconsistent with the section;  the IME also failed to consider x-ray of the ankle taken two years after injury which showed minimal osteoarthritis; reliance of MRI scan some eight years later indicated that doctor had considered subsequent degeneration in assessing pre-existing condition which was inconsistent with Court of Appeal decision in Secretary, Department of Education v Johnson; worker assessed at 21%.

Decision date: 11 May 2020

Date of amendment: 18 May 2020 | Member: Arbitrator John Harris

Medical Appeal decisions

Fiscalini v Third Sector Australia Ltd [2020] NSWWCCMA 86

Claim that the AMS erred in his assessment of a number of the PIRS categories; AMS also erred with regard to the effects of treatment; characterisation of fresh evidence; statements from worker submitted to AMS following the assessment; statements rejected as did no more than re-state the evidence the appellant worker provided to the AMS; the evidence supported the ratings ascribed by the AMS; mere disagreement with the findings of an AMS not a proper basis for appeal; no evidence that the that the appellant’s treatment had substantially eliminated the impairment; Held - MAC confirmed.

Decision date: 8 May 2020 | Panel Members: Arbitrator Deborah Moore,
Dr Lana Kossoff and Dr Doug Andrews | Body system: psychological

Argeetes v Bayside Council [2020] NSWWCCMA 87

Appeal from assessment of left lower extremity after total knee replacement surgery; AMS made no deductions under Table 17-35 of the AMA 5 for left knee flexion contracture, extension lag or tibio-femoral alignment; AMS deducted one half for pre-existing arthritis of the knee; whether worker was denied procedural fairness; Held - MAC confirmed.

Decision date: 30 April 2020 | Panel Members: Arbitrator Richard Perrignon, Dr Brian Noll and Dr Philippa Harvey-Sutton | Body system: visual system