Legal Bulletin No. 57

Issued 14 August 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

Semic v Brighton Australia Pty Ltd [2020] NSWWCC 262

Consequential condition alleged to contralateral joint and cardio-vascular and digestive systems; worker’s statement unreliable; histories given years later unsupported and contradicted by contemporaneous evidence; onus of proof discussed; Qannadian v Bartter Enterprises Pty Limited referred to; all claims dismissed; remaining admitted back injury failed to reach threshold; Etherton v ISS Property Services Pty Ltd discussed; Held - award for the respondent on all counts.

Decision date: 3 August 2020 | Member: Arbitrator John Wynyard

Dakkak v Gerard Lighting Pty Ltd [2020] NSWWCC 263

Medical expenses; whether proposed spinal fusion reasonably necessary as a result of a workplace injury; whether worker suffered injury to lumbar spine as a result of nature and conditions of employment over more than a decade causing an aggravation of pre-existing lumbar spine condition; Held - worker suffered aggravation to lumbar spine condition to which employment was the main contributing factor, giving rise to the need for the proposed surgery; the proposed surgery is reasonably necessary, noting the respondent offered no medical evidence which contradicted the opinions of the treating surgeon and the worker’s independent medical examiner.

Decision date: 4 August 2020 | Member: Arbitrator Cameron Burge

Hannan v P & I Pty Limited [2020] NSWWCC 264

Accepted injury to the lumbar spine; whether the worker suffered an injury to her left hip; the value of contemporaneous evidence; absence of contemporaneous complaints of left hip symptoms for some years post work-related injury; Onassis and Calogeropoulos v Vergottis; Department of Aging, Disability and Home Care v Findlay; Department of Education and Training v Ireland; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - the worker did not suffer injury to the left hip arising out of or in the course of her employment with the respondent within the meaning of sections 4(a) and 9A or 4(b)(ii) of the 1987 Act; the worker did not suffer a consequential injury to her left hip as a result of the accepted injury to her lumbar spine in the course of her employment with the respondent; award for the respondent in respect of the worker’s claimed injury to the left hip.

Decision date: 4 August 2020 | Member: Arbitrator Anthony Scarcella

Rabbas v Noni B Holdings Pty Ltd [2020] NSWWCC 265

Calculation of PIAWE where worker suffered psychological injury after working part time for more than 52 weeks; worker argues that her ordinary hours and ordinary earnings were those appropriate to the full-time hours and that she had an undisputed contractual right to return to on notice; Held – ordinary earnings for the purposes of the former sections 44C and 44E of the 1987 Act are the hours that she worked or for which she was entitled to be paid.

Decision date: 4 August 2020 | Member: Arbitrator Jill Toohey

Kirkman v Westpac Banking Corporation [2020] NSWWCC 267

Claim for the cost of surgery to right wrist; injury section 4(b)(ii) of the 1987 Act in issue; respondent relies upon Dr Stephen Potter who finds worker, while genuine in presentation, has local regional pain but no evidence of any physical injury caused by the nature and extent of her duties working in a bank; respondent submits insufficient evidence from worker of the nature and extent of her duties to support a finding of injury; worker relies opinion of Dr Bryce Meads, treating hand surgeon, and Dr T Best, orthopaedic surgeon; Held - worker had adduced sufficient evidence of section 4(b)(ii) injury to right wrist and that surgery proposed by Dr Meads reasonably necessary as a result of injury.

Decision date: 5 August 2020 | Member: Arbitrator Brett Batchelor

Morcos v Deosa Enterprises Pty Ltd [2020] NSWWCC 268

Claim for weekly payments of compensation on the basis of no current work capacity after the second entitlement period; worker has a combination of an injury to right knee, consequential condition affecting right elbow and secondary psychological injury; consideration of ‘no current work capacity’ and ‘suitable employment’ in section 32A of 1987 Act; reference to Wollongong Nursing Home v Dewar; Held – worker has failed to establish that he has had no current work capacity during period claimed for weekly payments.

Decision date: 5 August 2020 | Member: Arbitrator John Isaksen

Medical Appeal decisions

Queensland Property Investments Pty Ltd v Ernesto De Paz [2020] NSWWCCMA 129

The appellant claimed that the AMS erred in concluding that the respondent had reached maximum medical improvement and thus making an assessment of whole person impairment “when such a finding was not available on the evidence”; the Appeal Panel agreed; the respondent reacted very badly to intervening events, became suicidal and was admitted to hospital for the first time; the respondent’s response to service of the report of Dr Bisht was a clear deviation from the normal fluctuations in symptoms in a person with the respondent’s condition; Held - MAC revoked; the Appeal Panel recommended re-examination 6 months after the initial examination by the AMS.

Decision date: 3 August 2020 | Panel Members: Arbitrator Deborah Moore, Dr Lana Kossoff and Dr Douglas Andrews | Body system: psychological

Kids OT Pty Ltd v Young Ho Bae [2020] NSWWCCMA 130

Psychological injury; extent of s 323 deduction; vulnerabililty to PTSD suffered as a result of military service became manifest only after injury; no deduction; Cole v Wenaline Pty Ltd, Fire and Rescue NSW v Clinen applied; section 323 deduction of one-tenth appropriate in respect of pre-injury adjustment disorder; consideration of medical evidence; State of NSW v Kaur; Held - MAC revoked.

Decision date: 29 July 2020 | Panel Members: Arbitrator Catherine McDonald,  Prof Nick Glozier and Dr Doug Andrews | Body system: psychological

Registrar decision

Taylor v State of New South Wales [2020] NSWWCCR 5

Interim Payment Direction; worker sustained psychiatric injury in the course of her employment; issue as to whether the worker is prevented from recovering weekly payments because of her failure to attend the IME appointment arranged by the insurer; section 119 of the 1998 Act discussed; Part 7 of the SIRA Workers Compensation Guidelines; Delegate found that the insurer failed to provide  written advice as required to the worker as to why the information received was inadequate; Held – respondent to pay the worker weekly payments pursuant to section 37 of the 1987 Act.

Decision date: 30 March 2020 | Delegate: Carolyn Rimmer