Legal Bulletin No. 52

Issued 10 July 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

Clark v Secretary, Department of Transport [2020] NSWWCC 210

Claim for cost of medicinal cannabis for pain relief; consideration of Rose v NSW Health Commission; whether treatment alleviates the consequences of injury; whether risk factors properly considered by treating doctors; Held – order for the payment by respondent of cost of medicinal cannabis treatment to date; no order for proposed future treatment.

Decision date: 25 June 2020 | Member: Arbitrator John Isaksen

Corton v Nariment Pty Limited t/as the Oakes Bakery [2020] NSWWCC 211

Worker suffered a thoracic spine injury in 2001; arbitral determination that bariatric surgery was reasonably necessary medical treatment as a result of the injury; worker sought determination that maximum medical improvement (MMI) had not been reached for the purposes of section 39 of the 1987 Act; power of arbitrator to determine if MMI had been reached generally; clause 28C of the Regulations requires assessment by AMS; matter remitted for referral to AMS.

Decision date:           25 June 2020

Date of amendment: 29 June 2020 | Member: Arbitrator Catherine McDonald

Dookwah v State of New South Wales (NSW Police Force) [2020] NSWWCC 212

Claim for lump sum compensation in respect of alleged psychological injury; exempt worker; whether employment a substantial contributing factor to the contraction of the injury; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal, discipline and/or transfer; Held – employment was a substantial contributing factor to the contraction of the injury;  defence pursuant to section 11A of the 1987 Act not made out; matter remitted to Registrar for referral to an AMS.

Decision date: 25 June 2020 | Member: Arbitrator Rachel Homan

Kenny v Bindaree Beef Pty Limited [2020] NSWWCC 213

Serious and wilful conduct allegations; worker found to be under influence of methamphetamine and amphetamine following testing; expert evidence defined parameters of relevant time frames; date of accident outside those parameters; Held - award for the worker.

Decision date: 25 June 2020 | Member: Arbitrator John Wynyard

Wilcox v The Flatpack Franchise Pty Ltd [2020] NSWWCC 214

Claim for weekly payments of compensation and medical expenses for psychological injury; employer admitted injury but raised defence of injury being wholly or predominantly caused by reasonable action in respect of performance appraisal, discipline and dismissal; consideration of Irwin v Director General of School Education and Northern NSW Local Health Network v Heggie; psychological injury caused by series of events in workplace and some of the disciplinary action and dismissal was not reasonable; Held – defence pursuant to section 11A of the 1987 Act not made out; award of weekly payments of compensation and medical expenses.

Decision date: 29 June 2020 | Member: Arbitrator John Isaksen

Piontek v Walter Findlay Pty Ltd [2020] NSWWCC 215

Injury, incapacity, medical expenses, proposed surgery, notice of injury and notice of claim in dispute; Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd, Federal Broom Co Pty Ltd v Semlitch, AV v AW, Albury Real Estate Pty Ltd v Rouse, 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 – worker sustained back injury pursuant to section 4(b)(ii) of the 1987 Act and incapacitated; surgery reasonably necessary; failure to give notice of injury due to special circumstances; notice of claim given in time; respondent to pay weekly compensation and medical expenses, including cost of proposed surgery, pursuant to sections 36, 37 and 60 of the 1987 Act.

Decision date: 30 June 2020 | Member: Senior Arbitrator Glenn Capel

Green v Bayside EQ t/as NJ Johnston and NP Johnston [2020] NSWWCC 216

Injury and consequential conditions resulting from injury; whether surgical procedures for consequential conditions reasonably necessary as a result of injury; secondary psychological injury and capacity for work; Held – worker suffered consequential conditions of sensory nerve distribution and impairment resulting in right carpal tunnel syndrome and aggravation of pre-existing left shoulder pathology resulting from accepted injury to right elbow and secondary psychological injury; surgical procedures reasonably necessary as a result of injury; no capacity for work; Kooragang Cement Pty Ltd v Bates; Bouchmouni v Bakhos Matta t/as Western Red Services; Tubemakers of Australia Limited v Fernandez; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timber Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd and Diab v NRMA Ltd discussed and applied.

Decision date: 1 July 2020 | Member: Arbitrator Grahame Edwards

Young v Vietnam Veterans Keith Payne VC Hostel [2020] NSWWCC 217

Application pursuant to section 60(5) of the 1987 Act; proposed surgical procedure at specified lumbar level not endorsed by worker’s medico-legal referee; Diab considered; Held  - application refused.

Decision date: 1 July 2020 | Member: Arbitrator John Wynyard

Medical Appeal decisions

Australian Red Cross Blood Service v Durmisovski [2020] NSWWCCMA 114

Appeal against the assessment of 72% WPI resulting from lumbar spine injury based on availability of additional relevant information (section 327(3)(b)); worker presented to IMEs and to the AMS as having no movement or power in the legs; subsequent to assessment by the AMS the worker observed walking with a single stick; video evidence of that activity, further report of insurer’s IME and various claims for expenses sought to be admitted as additional information; Held –  the video evidence and IME report constituted additional relevant information not available and which could not reasonably been obtained prior to examination and the appeal succeeds to that extent; additional material was available prior to examination and did not form part of additional relevant information; appellant insurer submits re-examination required; examination not likely to assist in assessment; results of investigations requested and obtained by the Panel; MAC revoked and worker reassessed.

Decision date: 25 June 2020 | Panel Members: Arbitrator William Dalley, Associate Professor Michael Fearnside and Dr Robin Fitzsimons |
Body system: lumbar spine, right upper extremity, left upper extremity, station and gait, bladder, anorectal impairment, sexual function

Plaza v Bluescope Steel Limited [2020] NSWWCCMA 114

Worker underwent bilateral knee replacement resulting from physical activity in the workplace over 39 years ago; AMS assessed the bilateral lower extremities at 20% WPI for each knee and a further 1% for scarring; assessment of the lower extremities reduced by 50% pursuant to section 323 of the 1998 Act and/or concurrent arthritis and obesity; demonstrable error alleged in making deduction; Held – there was no evidence of any pre-existing condition or abnormality nor any prior injury as at 1978 when employment commenced; the concurrent development of arthritis and weight gain throughout the period of employment did not break the causal chain and no deduction was warranted; Cullen v Woodbrae Holdings Pty Ltd and Secretary, Department of Education v Johnson applied; worker assessed as having total aggregated WPI of 37%; MAC revoked.

Decision date: 25 June 2020 | Panel Members: Arbitrator William Dalley,  Dr Gregory McGroder and Dr Drew Dixon | Body system: right lower extremity, left lower extremity, scarring (TEMSKI)

Polura v Jewish Care NSW [2020] NSWWCCMA 115

Deduction pursuant to section 323 of the 1998 Act; AMS deducted one-tenth for a pre-existing condition; appellant submitted that, contrary to the Guidelines, the deduction was at odds with the available evidence; Held – the Panel agreed and made a one-half deduction; MAC revoked.

Decision date: 29 June 2020 | Panel Members: Arbitrator Deborah Moore, Dr Mark Burns and Dr Brian Noll | Body system: left lower extremity, scarring (TEMSKI)

Parker v Hitachi Construction Machinery (Australia) Pty Ltd [2020] NSWWCCMA 116

Appellant worker appealing MAC of 14% WPI; errors alleged on unsubstantiated assumptions of fact; errors also alleged regarding adequacy of reasons; presumption of regularity considered; Jones v The Registrar applied; Held – MAC confirmed.

Decision date: 30 June 2020 | Panel Members: Arbitrator John Wynyard, Dr Phillipa Harvey-Sutton and Dr James Bodel |
Body system: right lower extremity, scarring (TEMSKI), lumbar spine, left lower extremity

De La Blanca v Kingsfeld Pty Ltd [2020] NSWWCCMA 117

Worker alleged AMS erred in not finding lumbar radiculopathy; absence of major or minor criteria of radiculopathy on examination; no error by AMS; worker alleged that CT scan as evidence of thoracic wedging required a determination of thoracic DRE category III; Held – Panel found no medical or other evidence that wedging resulted from injury; MAC confirmed.

Decision date: 1 July 2020 | Panel Members: Arbitrator Paul Sweeney, Dr Brian Stephenson and Dr Philippa Harvey-Sutton |
Body system: lumbar spine, thoracic spine

Registrar decision

Boctor v O’Brien Glass Industries Limited [2020] NSWWCCR 2

Application for reconsideration under section 329 of the 1998 Act; AMS had determined that the worker had not reached maximum medical improvement; prima facie evidence that maximum medical improvement had been reached; liberty to restore granted in Certificate of Determination; application opposed by respondent on basis that the worker should obtain an updated whole person impairment assessment; no such requirement in legislation; worker implicitly sought  to restore proceedings by application; matter restored and referred back to AMS.

Decision date: 2 July 2020 | Delegate: Parnel McAdam

Brosie v Stratco (NSW) Pty Ltd [2020] NSWWCCR 3

Medical appeal; decision of gatekeeper under section 327(4) of the 1998 Act; whether arguable case of error; consideration of the Psychiatric Impairment Rating Scale in the categories self-care and personal hygiene and travel; delegate of the Registrar not satisfied that it was arguable that a ground of appeal had been made out; appeal not to proceed.

Decision date: 3 July 2020 | Delegate: Parnel McAdam