Legal Bulletin No. 60

Issued 4 September 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.

Court of Appeal decision

Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203

Appeals; right of appeal; scope of right; error of law; findings based on medical evidence; whether misunderstanding of claimant’s case; section 353(1) of the 1998 Act; workers compensation; entitlement to compensation; causal relation between accident and injury; delayed complaint of neck pain; neurological condition said to have painless onset; absence of reports of neck pain to treating medical practitioners; Held - appeal dismissed.

Decision date: 3 September 2020 | Before: Basten JA, Meagher JA and Emmett AJA

Arbitral decisions

Brown v S & A Trailers Pty Ltd [2020] NSWWCC 281

Application to aggregate claims for impairment after sustaining an injury to the left upper extremity on a different date to the right upper extremity; consideration of section 322 of the 1998 Act; determining the impairment that “results from” the injury; Held - the impairment to the right upper extremity crystallised on the 23 October 2017, results from the injurious event on 5 April 2017; the impairment that results from the events are to be aggregated; matter referred to an AMS to determine WPI in respect of both the left and right upper extremities.

Decision date: 20 August 2020 | Member: Arbitrator Elizabeth Beilby

Cepigovski v Qantas Ground Services Pty Limited [2020] NSWWCC 282

Claim for weekly payments and section 60 expenses including the cost of surgery and permanent impairment compensation as a result of both the nature and conditions of the applicant’s employment with the respondent and also relying on frank injury on two specified dates of injury within the nature and conditions period; applicant relies upon injury pursuant to section 4(a) and (b)(i) and (ii) of the 1987 Act; Held - finding for the applicant of frank injury pursuant to section 4(b)(ii) as a result of injury on the last of the two specified dates of injury; award for the respondent in respect of the first specified date of injury and in respect of the nature and conditions claim; finding that surgery reasonably necessary as a result of the injury on the last of the two specified dates of injury; award for weekly benefits for closed period until applicant returned to work post-surgery; matter remitted to Registrar for referral to AMS for assessment of whole person impairment.

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

Lehman v Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology [2020] NSWWCC 283

Section 60(5) application for surgery on contra-lateral shoulder to accepted injury; respondent alleged novus actus when worker pulled doona cover up in bed; Held - Murphy v Allity Management Services applied; award applicant

Decision date: 20 August 2020 | Member: Arbitrator John Wynyard

Faria v Berri Limited [2020] NSWWCC 284

Claim for weekly benefits and medical expenses for psychological injury due to alleged bullying and harassment; whether applicant discharged onus of demonstrating injury; lack of specificity and inconsistencies in applicant’s claims; applicant’s education, cultural and linguistic background relevant; section 11A(1) defence; Held – applicant sustained injury; section 11A(1) defence not established; applicant had no current work capacity during period of weekly benefits claimed; general order for medical expenses.

Decision date: 21 August 2020 | Member: Arbitrator Rachel Homan

Gallagher v Falconers Pty Ltd trading as Northern Rivers Hotel (deregistered) [2020] NSWWCC 285

Worker suffered a frank physical injury at work; claims for section 66 compensation were brought for psychological injury based on a deemed date of injury and for physical injury based on the frank injury; the parties had recently entered into a complying agreement for psychological injury which specified injury on the specific date rather than the deemed date; the issue was whether the applicant had recovered compensation for the psychological injury precluding compensation for the physical injury by reason of section 65A(4) of the 1987 Act; Held - complying agreement was interpreted based on the text, surrounding circumstances and the purpose and object of the transaction; Toll (FGCT) Pty Ltd v Alphapharm and Mainteck Services Pty Ltd v Stein Heurtey SA applied; complying agreement interpreted as paying compensation for the psychological injury occurring on the specific date; as the applicant claimed a lesser amount for the physical injury the application to refer the matter to the AMS was declined.

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

Porter v State Rail Authority of NSW [2020] NSWWCC 286

Dispute regarding the calculation of the monetary amounts to be paid in relation to claim in 2018 under section 66 of the 1987 Actforinjury on 9 February 1996, where an award of lump sum compensation made by Compensation Court of NSW in proceedings filed in 1996; Held - consideration of Sch 6, Part 6, cl 18 of the 1987 Act; Fergusson v Secretary, Department of Family & Community Services applied; the maximums to be applied are those prior to WorkCover Legislation Amendment Act 1996.

Decision date: 21 August 2020 | Member: Senior Arbitrator Josephine Bamber

Thornton v State of New South Wales [2020] NSWWCC 287

Claim by worker for weekly compensation and section 60 expenses; alleged witness denies being on duty at time of injury; injury not reported and claim not made until more than six months after injury; hospital admission notes contain no history of injury; importance of documentary evidence where worker’s evidence unreliable; worker’s medical experts had considered the clinical record; respondent’s medical expert stated he could not express an opinion without clinical record; sections 254 and 261 the 1998 Act considered; Held - failure to report injury excused as employer not prejudiced and that worker had established “reasonable cause” for delay in making claim; Quinlivan v Portland Harbour Trust applied; award for worker; acceptance of her medical case on injury and causation in the absence of any contrary hypothesis.

Decision date: 21 August 2020 | Member: Arbitrator Paul Sweeney

Ivanisevic v Clymax Glass & Showers Pty Limited [2020] NSWWCC 288

Application for section 60 expenses; whether proposed total ankle replacement surgery was reasonably necessary medical treatment; numerous previous operations; Diab v NRMA Ltd considered; requirements for expert evidence; South West Sydney Area Health Service  v Edmonds applied; Held – award for the worker.

Decision date: 25 August 2020 | Member: Arbitrator Catherine McDonald

Medical Appeal decisions

Bramble v House With No Steps [2020] NSWWCCMA 134

Psychological injury; submissions about history taken by AMS did not disclose demonstrable error; Pitsonis v Registrar of Workers Compensation Commission considered; application of PIRS; Held - Ferguson v State of NSW, Parker v Select Civil applied; MAC confirmed.

Decision date: 20 August 2020 | Panel Members: Arbitrator Catherine McDonald, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological

Ven v The Sydney Children's Hospitals Network [2020] NSWWCCMA 135

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the Certificate in relation to worker’s statement and differences in findings of another assessor with a PIRS Category; application of clinical judgement; Held - grounds of appeal not made out in relation to assessment of social functioning; difference of opinion not a ground of appeal; importance of clinical examination; no error found; assessment based on correct criteria; Held - MAC confirmed; Glenn William Parker v Select Civil Pty Limited; Ferguson v State of New South Wales; Marina Pitsonis v Registrar Workers Compensation Commission & Anor; Mahenthirarasa v State Rail Authority of New South Wales & Ors applied.

Decision date: 21 August 2020 | Panel Members: Arbitrator Ross Bell, Professor Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological

Keane v State of New South Wales (NSW Police Force) [2020] NSWWCCMA 136

Challenge to a number of PIRS categories; Worker also sought to admit as fresh evidence a further statement challenging various aspects of the MAC; that evidence was rejected; Petrovic v BC Serv No 14 Pty Limited & Ors applied; Held - no error by AMS in his assessment; MAC confirmed.

Decision date: 24 August 2020 | Panel Members: Arbitrator Deborah Moore, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological

Premier Youthworks Pty Limited v Ellie Cole [2020] NSWWCCMA 137

Assessment of permanent impairment from psychiatric injury; employer appealed contending AMS erred with respect to assessment of worker’s impairment in self-care and personal hygiene and in concentration, persistence and pace; employer submitted AMS’s assessment not supported by AMS’s clinical findings or by the other evidence; Held - Appeal Panel found assessment supported by AMS’s findings and AMS was entitled to give pre-eminence to his findings; MAC confirmed.

Decision date: 24 August 2020 | Panel Members: Arbitrator Marshal Douglas, Professor Nicholas Glozier and Dr Lana Kossoff | Body system: Psychological

Tesoriero v Edmonds & Fox [2020] NSWWCCMA 139

The worker suffered right hand injury involving partial amputation of the middle and ring fingers; Held - AMS did not err by assessing motion as he stated that, despite some inconsistency, he achieved “sufficient consistency”. AMS did not err in failing to attach a working sheet as this was not mandatory in accordance with paragraph 2.6 of the fourth edition guidelines. Error established because the AMS did not assess partial amputation under Table16-4 of AMA 5 with other assessments; MAC revoked and reassessed.

Decision date: 25 August 2020 | Panel Members: Arbitrator John Harris, Dr Robin Fitzsimons and Dr Drew Dixon | Body system: Right Upper Extremity

Registrar decision

Bokan v Coles Supermarkets Australia Pty Ltd

Work capacity dispute; suitable employment per s 32A; whether worker had current work capacity; all medical evidence suggested some current work capacity; worker unable to find roles and suggested there was no suitable employment based on his age, skills and experience; Held – that worker had current work capacity and was capable of work in suitable employment; interim payment direction declined.

Decision date: 24 August 2020 | Decision-maker: Delegate Parnel McAdams

Kochel v Ready Workforce (a Division of Chandler Macleod) Pty Ltd NSWWCCR 7

Work capacity dispute; injury to left knee; whether an interim payment direction for weekly payments should be made pursuant to Chapter 7 Part 5 Division 2 of the 1998 Act; whether the worker is able to return to work in suitable employment applying 32A of the 1987; Held – the worker has the requisite education, skills and experience to undertake suitable employment in the roles identified by the respondent; presumption that an interim payment direction for weekly payments of compensation is warranted is displaced because the worker’s claim has minimal prospects of success; the application to make an interim payment direction is declined.

Decision date: 3 September 2020 | Decision-maker: Delegate Belinda Gamble