Legal Bulletin No. 59

Issued 28 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

Ross v Laverty Pathology [2020] NSWWCC 273

Claim for the cost of surgery to the lumbar spine as a result of injury, in the form of aggravation of pre-existing degenerative condition in the lumbar spine; respondent concedes aggravation on the date of injury relied upon but submits that the effects of that aggravation have ceased and that ongoing symptoms are as a result of pre-existing constitutional degenerative condition; respondent submits that surgery not reasonably necessary as a result of injury; worker also claimed weekly benefits pursuant to s 38 of the 1987 Act, and that a work capacity by the respondent could be inferred from the fact the respondent continued to pay weekly benefits beyond the 130 week second entitlement period; alternatively worker claimed that she has no current work capacity; Held - finding that the effects of the aggravation of condition in the lumbar spine have not ceased and that surgery reasonably necessary as a result of injury; inference sought by the worker as to the making of a work capacity decision by the respondent rejected; finding that the applicant is a worker who has current work capacity; award for the respondent on the worker’s claim for weekly benefits; award for the respondent on the worker’s claim for injury to the thoracic spine.

Decision date: 11 August 2020 | Member: Arbitrator Brett Batchelor

Nikfarman v Bestwood Commercial Interiors Pty Ltd [2020] NSWWCC 274

Entitlement to weekly benefits; partial incapacity; whether worker entitled to weekly benefits and to what extent; Held - worker was partially incapacitated for employment and entitled to receipt of compensation; worker’s entitlement to weekly benefits ceased on 10 May 2020 owing to the expiry of the second entitlement period pursuant to section 37 of the 1987 Act; claim for medical expenses including surgery undertaken overseas; whether reasonably necessary; surgery was not reasonably necessary; award for respondent on claim for costs of and incidental to surgery; otherwise, respondent ordered to pay worker’s reasonably necessary section 60 expenses.

Decision date: 13 August 2020 | Member: Arbitrator Cameron Burge

Galal v University of New South Wales [2020] NSWWCC 275

Worker was a full-time PhD student of medical research holding a commonwealth scholarship; alleged contract of employment with the university on basis it reserved the intellectual property of the applicant’s study and research while paying the scholarship stipend; whether a “worker” under section 4 of the 1987 Act; whether the indicia of control and direction establish employment; whether the payment of the stipend under the scholarship was consideration for service from the applicant; Held - the applicant does not discharge the onus of proof establishing she was a worker or a deemed worker for the purposes of the Acts; award for the respondent; Stevens v Brodribb Sawmilling Company Pty Ltd, Australian Woollen Mills Pty Ltd v Commonwealth, Secretary, Department of Family and Community Services v Bee, Ermogenous v Greek Orthodox Community of SA Inc, Scerri v Cahill, Lindeboom v Goodwin & Anor, considered.

Decision date: 14 August 2020 | Member: Arbitrator Ross Bell

Morrison v ACFS Port Logistics Pty Ltd [2020] NSWWCC 278

The worker sustained a consequential condition to the lumbar spine due to altered gait; Held - Proposed treatment of lumbar surgery is reasonably necessary.

Decision date: 17 August 2020 | Member: Arbitrator Elizabeth Beilby

Mirow v Suez Recovery & Recycling [2020] NSWWCC 279

Psychological injury; bullying and harassment; claim for weekly benefits and medical expenses; no dispute as to injury; whether employment main contributing factor; no dispute that worker had personal and workplace stressors; consideration of respective contributions; Held - finding that employment was main contributing factor; respondent to pay weekly benefits compensation from 18 September 2019 to 30 June 2020; respondent to pay worker’s reasonably necessary medical expenses.

Decision date: 17 August 2020 | Member: Arbitrator Jill Toohey

Swinton v Secretary, Department of Education [2020] NSWWCC 280

Leave granted to the respondent under section 289A(4) of the 1998 Act to dispute alleged injury to the left shoulder and cervical spine in the course of employment; injury disputed on the basis of clinical records referring to manipulation of the back by a friend; care to be exercised when considering medical records; Mason v Demasi and Winter v NSW Police Forceat [183] discussed; discussion of onus of proof and fair climate of history provided to respondent’s independent medical expert; Paric v John Holland Constructions Pty Ltd considered; failure to call witness; Jones v Dunkel applied; Held - worker suffered injury in the course of employment; matter remitted to the Registrar for referral to an AMS for assessment of permanent impairment.

Decision date: 17 August 2020 | Member: Arbitrator Grahame Edwards

Medical Appeal decisions

Herrera v House With No Steps [2020] NSWWCCMA 132

Assessment of permanent impairment resulting from a psychiatric injury; AMS reduced PIRS ratings due to appellant worker taking codeine; Appeal Panel found that no evidence that codeine had effect on worker’s function; AMS took into account irrelevant consideration when assessing worker’s permanent impairment; Held - demonstrable error found; MAC revoked.

Decision date: 12 August 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Lana Kossoff and Dr Julian Parmegiani | Body system: Psychological

Secretary, Department of Communities and Justice v Marks [2020] NSWWCCMA 133

Psychiatric injury; worker obtained 21% WPI for PTSD after being bullied as a sheriff’s officer; alleged refusal to discuss prior PTSD with the police force or with any medical practitioner or AMS, as he thought he was forbidden by the terms of his common law settlement in 2012; AMS asked to reconsider prior MAC of 22%; other evidence put before the AMS of prior symptoms; AMS confirmed his assessment; Broadspectrum, Eicheikh, Ryder, Qannadian, Drosd considered; Held – MAC revoked; section 323 deduction of ¼ assessed, and 2% modifier for effects of treatment disallowed; 14% WPI substituted.

Decision date: 12 August 2020 | Panel Members: Arbitrator John Wynyard, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological