Legal Bulletin No. 46

Issued 29 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

Fercher v Toohey Pty Ltd [2020] NSWWCC 154

Claim for lump sum compensation on 10 July 2019 with respect to Industrial Deafness injury under section 66 of the 1987 Act: previous claim for hearing aids under section 60 of the 1987 Act involving the same employment; previous claim carried a 13 January 2014 deemed date of injury; whether the correct date of injury for the 2019 claim  should be the 2014 injury date; whether facts distinguishable from Prisk v Department of Ageing, Disability and Home Care (No 2); Held - the 2019 claim is new cause of action seeking different relief to that sought in 2014 and the correct date of injury is 10 July 2019.

Decision date: 14 May 2020 | Member: Arbitrator Michael Perry

AZ v State of New South Wales [2020] NSWWCC 155

Worker claimed weekly benefits; dispute as to whether section 44D(2) of the 1987 Act applied to the worker in circumstances where there was no agreement as to her hours of work following a return from maternity leave; respondent is refused leave to dispute the issue.

Decision date:           13 May 2020
Date of amendment: 15 May 2020 | Member: Arbitrator Carolyn Rimmer

Grimshaw v Tomago Aluminium Company Pty Ltd [2020] NSWWCC 156

Injury to lumbar spine; injury alleged to consist in the aggravation, acceleration, exacerbation or deterioration of a disease by reason of the heavy nature of work over 29 years; injury disputed;  Held - award for the worker- matter remitted to the Registrar for referral to an Approved Medical Specialist to assess the degree of permanent impairment, if any, in respect of the lumbar spine.

Decision date: 15 May 2020 | Member: Arbitrator Jane Peacock

Kent v Mecfab Holdings Pty Ltd [2020] NSWWCC 157

Worker suffered a neck injury in 2016 and underwent surgery; compensated for 30% WPI; obtained employment as a supervisor but made redundant; GP certified worker unfit because of physical and psychological conditions, then, at worker’s request, fit for suitable employment; numerous applications for work; whether supervisor role was suitable employment; numerous unsuccessful applications for employment; Lowarra Nominees Pty Ltd v Wilson, Moran Health Care Services Pty Ltd v Woods, Wollongong Home Pty Ltd v Dewar applied; Held - worker had no current work capacity; award for the worker.

Decision date: 15 May 2020 | Member: Arbitrator Catherine McDonald

Wilson v Coles Group Limited [2020] NSWWCC 158

Permanent impairment compensation claim relating to accepted lumbar spine injury; whether fall in 2018 was caused by accepted 2007 injury; worker suffered fractured right leg as a result of a fall attributed to left leg and foot symptoms brought about by injury to lumbar spine in 2007; Held - the 2018 fall was caused by the 2007 injury;  Kooragang Cement Pty Ltd v Bates followed.

Decision date: 15 May 2020 | Member: Arbitrator Cameron Burge

Strohfeld v Canley Gardens Pty Ltd [2020] NSWWCC 159

Worker suffered an accepted injury to the lumbar spine resulting in two surgical procedures; parties agreed that the arbitrator determine whole person impairment in circumstances where the respective qualified doctors agreed on WPI save as to the extent of the section 323 deduction and whether the worker had ongoing radiculopathy; the Commission had the power to determine permanent impairment; Etherton v ISS Properties Pty Ltd applied; discussion of relevant principles concerning section 323 deduction; respondent qualified doctor made a number of errors when assessing section 323 including taking into account that failed surgery was a relevant factor and also the possible association with rheumatoid arthritis which did not satisfy the respondent’s onus of proof; Held - arbitrator satisfied that worker had ongoing radiculopathy due to another recent medical report obtained by the respondent which established a major criteria supportive of the worker’s qualified opinion; worker assessed at 24% WPI.

Decision date: 18 May 2020 | Member: Arbitrator John Harris

Anand v Suprima Bakeries Pty Ltd [2020] NSWWCC 160

Claim for surgery; worker injured when 100kg weight fell on him, fracturing humerus and injuring right shoulder; neck pain not investigated for 18 months; Held - evidence corroborated worker’s complaint of continuing neck pain since injury; Mason V Demasi applied; award for worker.

Decision date: 19 May 2020 | Member: Arbitrator John Wynyard

Eather v Skillset Limited & Ors [2020] NSWWCC 161

Application for reconsideration of a Certificate of Determination pursuant to section 350(3) of the 1998 Act; determination of dependency, apportionment of death benefit amongst dependants and order for interest. Worker sought a reconsideration on the grounds that the Senior Arbitrator elected to apportion the death benefit that did not accord with the agreement between the parties. Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd, Samuel v Sebel Furniture Limited, New South Wales Police Force v Winter, Wratten v Kirkpatrick discussed and applied; Held - Application for Reconsideration declined.

Decision date: 19 May 2020 | Member: Senior Arbitrator Glenn Capel

Garcia v Level 4 Health Club Pty Ltd [2020] NSWWCC 162

Claim for lump sum compensation; agreed injury to left knee involving three surgical procedures including ACL reconstruction and high tibial osteotomy; dispute as to whether the lumbar and right hip symptoms were consequential conditions as a result of the left knee injury; Held - award in favour of the worker; matter remitted to the registrar for assessment of permanent impairment by an AMS.

Decision date: 19 May 2020 | Member: Senior Arbitrator Josephine Bamber

Quick v Newcastle City Council [2020] NSWWCC 163

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

Decision date: 19 May 2020 | Member: Arbitrator Jane Peacock

Kazimi v Yanni Holdings Pty Ltd [2020] NSWWCC 164

Whether an injury to the right upper extremity (shoulder) was as a consequence of a left shoulder injury in February 2018; consideration of the correct interpretation of the phrase “results from” and the issue of “causation” in particular; Kooragang Cement Pty Ltd v Bates applied; consideration of evidence required to establish a consequential injury; Munce v Thomson Cool Rooms Pty Ltd considered; evidence from worker inconsistent and not sufficient to establish a causal connection to the left shoulder injury; Held - the whole person impairment assessments in respect of the left upper extremity (shoulder) and scarring (TEMSKI) did not reach the relevant statutory threshold; no entitlement to lump sum compensation.

Decision date: 20 May 2020 | Member: Arbitrator Deborah Moore

Quiroz v Retail Apparel Group Pty Limited [2020] NSWWCC 165

Claim for weekly benefits in respect of alleged psychological injury; whether employment the main contributing factor to the contraction of the injury; where worker experienced miscarriage and complications of pregnancy during the relevant period; psychosocial stressors apart from work; perception of events in the workplace; Held - employment was the main contributing factor to the contraction of the injury; Attorney General's Department v K and AV v AW applied; worker had no current capacity for work to date and continuing as a result of injury; award for the worker on the claim for weekly benefits.

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

Taylor v Coles Supermarkets Pty Ltd [2020] NSWWCC 166

Issue concerningDelegation of Registrar’s function; application for expedited assessment; Registrar’s delegate declined to issue an interim payment direction as the worker had not discharged the evidentiary onus of establishing injury in the course of employment as alleged; interlocutory application by employer that the delegate exercised the Registrar’s function as an arbitrator under section 304B(4) of the 1998 Act; that the Commission did not have jurisdiction and was estopped from determining the disputed issues of injury and whether employment concerned was a substantial contributing factor to the injury; section 4 and section 9A of the 1987 Act raised by the employer in a section 74 notice; Held - Registrar’s delegate determined the application for expedited assessment; the delegate did not exercise the function of the Registrar as an Arbitrator when declining to issue an interim payment direction; liability issues were not finalised because no award was made in favour of the employer; no Certificate of Determination issued by the Registrar; employer’s interlocutory application was misconceived and dismissed; section 354(7A)(b) of the 1998 Act; Paric v Chul Lee Hyuang Ho Shin Jong Lee & Ors, Connor v Trustee of the Roman Catholic Churches for the Archdiocese of Sydney, Haroun v Rail Corporation of New South Wales; Hobden v South East Illawarra Area Health Service and Kohlrusch v Macquarie Education Group Australia Pty Ltd discussed.

Decision date: 20 May 2020 | Member: Arbitrator Grahame Edwards

Yell v Robert Arnold Holdings Pty Ltd [2020] NSWWCC 167

Whether left upper extremity shoulder injury in April 2004 was as a consequence of a right shoulder injury between February and March 2004; consideration of the correct interpretation of the phrase “results from” and the issue of “causation” in particular; Kooragang Cement Pty Ltd v Bates and Secretary, Department of Education v Johnson considered; Held - determined that the left shoulder injury was as a consequence of the right shoulder injury; parties had agreed to adopt the assessments of Dr Bodel; award for the worker pursuant to section 66 in respect of a 26% WPI.

Decision date: 26 May 2020 | Member: Arbitrator Deborah Moore

Medical Appeal decisions

Stines v The GEO Group Australia Pty Limited (formerly t/as Australasian Correctional Management Pty Limited) [2020] NSWWCCMA 88

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC in relation to the PIRS assessments; whether circumstances of imprisoned worker taken into account in assessing PIRS categories; Mahenthirarasa v State Rail Authority of New South Wales & Ors, Marina Pitsonis v Registrar Workers Compensation Commission & Anor,Glenn William Parker v Select Civil Pty Limited discussed; Held - grounds of appeal not made out; AMS used clinical judgment to take account of worker’s circumstances; MAC confirmed.

Decision date: 18 May 2020 | Panel Members: Arbitrator Ross Bell, Dr Nicholas Glozier and Dr Michael Hong | Body system: psychological system

Coles Supermarkets Australia Pty Ltd v Hanson [2020] NSWWCCMA 89

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the Certificate in relation to the section 323 deduction of one-tenth under s 323(2) of the 1998 Act for pre-existing injury or condition unrelated to employment; Held - grounds of appeal not made out; Fire & Rescue NSW v Clinen,Vitaz v Westform (NSW) Pty Limited, Ryder v Sundance Bakehouse, Greater Western Area Health Service v Austin, deduction of one-tenth open to the AMS; MAC confirmed.

Decision date: 19 May 2020 | Panel Members: Arbitrator Ross Bell, Dr James Bodel and
Dr David Crocker | Body system: right lower extremity

Brown v Active Energy Pty Ltd [2020] NSWWCCMA 90

Traumatic brain injury; claimant expert failed to apply correct guideline; identified partial cord lesion two years after injury with examination findings not noted in earlier expert reports; Held - AMS alleged to have not considered particular evidence; presumption of regularity considered; Bojko v ICM Property Services Pty Ltd applied; MAC confirmed.

Decision date: 20 May 2020 | Panel Members: Arbitrator John Wynyard, Dr Michael Fearnside and Dr Robin Fitzsimons | Body system: neurological system