Legal Bulletin No. 55

Issued 31 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

Black v Inghams Enterprises Pty Ltd [2020] NSWWCC 241

Worker claimed compensation for an injury in the form of aggravation of disease of lumbar spine pursuant to section 4(b)(ii) of the 1987 Act; worker’s employment was heavy and arduous and likely to have aggravated his diseased lumbar spine; worker had fallen down stairs, which was unrelated to work, and had also experienced back symptoms from having to walk up and down stairs to 4^th floor apartment; found that these other factors also likely to have aggravated his diseased lumbar spine; IMEs did not discuss or deal with contribution of non-work factors to aggravation of diseased lumbar spine; not satisfied on evidence that work was the main contributing factor to aggravation of disease; award for the respondent.

Decision date: 16 July 2020 | Member: Arbitrator Marshal Douglas

Freeth v Broadspectrum (Australia) Pty Ltd [2020] NSWWCC 242

Defence made pursuant to section 11A of the 1987 Act to complaint of psychiatric injury suffered by civilian watch officer at fire station at a naval installation; respondent’s IME attributes injury to each of the factors mentioned in that section; consideration of evidence; reference to Smith v Roads and Traffic Authority of NSW, Hamad v Q Catering Limited, Irwin v Director General of Education, Bottle Wieland Consumables Pty Ltd, Northern NSW Local Health Network v Heggie, Kushwaha v Queanbeyan City Council, Webb v State of New South Wales, Soutar v The Commissioner of Police; Held - section 11A defence unsuccessful; actions by the respondent not wholly with respect to transfer, demotion, promotion, performance appraisal, discipline and provision of employment benefits to workers and, to the extent that they were, the actions were not reasonable; award of weekly payments to the worker.

Decision date: 16 July 2020 | Member: Arbitrator William Dalley

Jurd v Programmed Skilled Workforce Limited [2020] NSWWCC 243

Worker claimed multiple injuries and lump sum compensation resulting from an injury in February 2016; the respondent accepted liability for the neck injury but disputed the injury to the back and the right shoulder; insufficient evidence to conclude that the worker sustained an injury to the right shoulder or back; award for the respondent in respect of the claim for injury to the lumbar spine and to the right upper extremity (shoulder); the claim pursuant to section 66 of the 1987 Act in respect of the cervical spine does not reach the relevant threshold so as to entitle the worker to any benefits.

Decision date: 16 July 2020 | Member: Arbitrator Deborah Moore

Marsland v Bing Lee Electrics Pty Ltd [2020] NSWWCC 244

Claim for costs of ulnar nerve release surgery at left elbow; accepted lumbar injury; whether worker also sustained injury to left elbow in the same incident or has a consequential condition at left elbow; significant delay in reporting of elbow symptoms; lack of opinion on causation in treating medical evidence; evaluation of expert opinions; Held – on balance of probabilities, worker sustained injury to left elbow; no dispute that surgery is reasonably necessary medical treatment; award for the worker.

Decision date: 16 July 2020 | Member: Arbitrator Rachel Homan

Pescod as Executrix and Trustee of the Estate of the Late Christopher Edward Jones v Daniels Health Services Pty Ltd currently trading as Cleanaway Daniels Services Pty Ltd [2020] NSWWCC 245

Application for lump sum compensation pursuant to section 25(1)(a) and funeral expenses pursuant to section 26 of the 1987 Act in respect of death of worker; deceased worker suffered cardiac arrest in the course of employment; lengthy history of heavy smoking; whether injury pursuant to section 4(b)(ii) to which employment was the main contributing factor; whether employment gave rise to a significantly greater risk of injury under section 9B of the 1987 Act; Held – awards for the worker; orders made with respect to payment of lump sum compensation and funeral expenses.

Decision date: 16 July 2020 | Member: Arbitrator Rachel Homan

Saunders v Hettich Australia A Limited Partnership [2020] NSWWCC 246

Expedited application to set aside work capacity decision; whether worker has capacity for employment, and if so to what extent; Held – work capacity decision set aside; respondent ordered to reinstate weekly payments.

Decision date: 17 July 2020 | Member: Arbitrator Cameron Burge

Allan v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 247

Section 60 medical expenses for proposed knee surgery; whether the need for surgery results from a work injury; same surgery planned before injury then not proceeded with; effect of bariatric surgery; Murphy v Allity Management Services Pty Ltd, March v Stramare (E & MH) Pty Limited, Flounders v Millar, Comcare v Martin considered; Held – need for surgery as the result of work injury.

Decision date: 20 July 2020 | Member: Arbitrator Ross Bell

Tout v State of New South Wales (Mid North Coast Local Health District) [2020] NSWWCC 248

Claim for weekly benefits;quantification of the worker’s pursuant to section 37 of the 1987 Act;application of the indexation provisions pursuant to section 82A of the 1987 Act;failure of the respondent to apply the indexation provisions to the agreed PIAWE; Held – award in favour of the worker in accordance with the worker’s calculation of his entitlement having regard to the indexation provisions of section 82A.

Decision date: 20 July 2020 | Member: Arbitrator Brett Batchelor

Dodd v Qantas Airways Ltd [2020] NSWWCC 249

Worker suffered an accepted back injury and underwent surgery with ongoing radiculopathy; issue as to whether the worker should be assessed for the effects on the activities of daily living and whether the surgical scar had assessable impairment; Held – the matter could be determined by an Arbitrator as the differences in opinion could be resolved by way of legal analysis of the deficiencies in the qualified reports and by the application of facts from other as opposed to specialist treating opinion; worker had failed to discharge the onus of proof in establishing the scar was assessable as the supporting qualified opinion did not address the criteria under Table 14.1 of the Guidelines; worker established that she was entitled to an allowance of 2% for the effects on the activities of daily living as the opinion of Dr Bodel was consistent with her evidence and the recent opinion of the  worker’s treating specialist; the opinion expressed by the respondent that there should be no allowance did not address the worker’s ongoing problems as provided by paragraphs 4.34 and 4.35 of the Guidelines; the worker established a 15% whole person impairment.

Decision date: 21 July 2020 | Member: Arbitrator John Harris

Elmiski v DNATA Airport Services Pty Limited [2020] NSWWCC 250

Section 11A of the 1987 Act; reasonable action with respect to termination; psychological injury and incapacity admitted; supervisor terminated as a result of alleged roster changes which enabled criminal activity by staff member; onus of proof; Northern NSW Local Health Network v Heggie considered; Held – employer failed to discharge its onus, award for the worker.

Decision date: 21 July 2020 | Member: Arbitrator Catherine McDonald