Legal Bulletin No. 61

Issued 11 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.

Arbitral decisions

Spangler v Downer EDI Mining Pty Ltd [2020] NSWWCC 289

Primary physical injury; alternatively primary psychological injury; alternatively consequential psychological injury; objection to ambiguous pleadings; natural justice and need for medical diagnosis of physical pathology; DSM V guide not conclusive; worker heat stress related condition; allegation not supported by medical evidence; Held - worker in frightening work conditions suffered sudden physiological change and contemporaneous symptoms; injury under section 4(b)(i) of the 1998 Act established; award for worker.

Decision date: 27 August 2020 | Member: Arbitrator Philip Young

Dunkley v Sydney Hoist and Scaffolding Pty Ltd [2020] NSWWCC 290

Permanent impairment compensation; whether worker suffered back injury along with accepted leg injury; initial complaints post-injury related to leg injury; worker’s credibility not in issue; whether corroboration required to accept injury; Held - worker suffered lumbar spine injury in accident, supported by radiological findings showing pathological change in his back; Castro v State Transit Authority (NSW) considered; matter remitted to Registrar for referral to AMS of worker’s whole person impairment to his right lower extremity and lumbar spine.

Decision date: 28 August 2020 | Member: Arbitrator Cameron Burge

Eve v Matthews Contracting Pty Ltd [2020] NSWWCC 291

Accepted injury to left groin; left inguinal hernia; mesh repair procedure carried out; worker had ongoing severe pain following procedure; whether left groin exploratory operation proposed by Dr Garvey reasonably necessary treatment; differing expert opinions as to likelihood of success and likely risks of the proposed surgery; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA considered; Held -  proposed surgery is reasonably necessary; respondent to pay the costs of and incidental to surgery proposed by Dr Garvey

Decision date: 28 August 2020 | Member: Arbitrator Jill Toohey

Payne v Albany International Pty Ltd [2020] NSWWCC 292

Whether the proposed L5/S1 anterior lumbar interbody fusion surgery is reasonably necessary treatment as a result of the injury sustained by the worker within the meaning of section 60 of the 1987 Act; whether the worker is precluded from obtaining an order from the Commission for payment of compensation; whether surgical procedure is exempt under section 59A(6)(a) as an artificial aid; Kooragang Cement Pty Ltd v Bates; Murphy v Allity Management Services Pty Ltd andDiab v NRMA Ltdapplied; Pacific National Pty Limited v Baldacchino and Herborn v Spotless Services Australia Limited distinguished; Held - the proposed L5/S1 anterior lumbar interbody fusion surgery is reasonably necessary treatment as a result of the injury sustained by the worker within the meaning of section 60 of the 1987 Act; the Commission does not have the power to order the respondent to pay the cost of the proposed surgery by operation of section 59A of the 1987 Act.

Decision date: 28 August 2020 | Member: Arbitrator Anthony Scarcella

Palasty v Kincare Health Services Pty Ltd [2020] NSWWCC 293

Whether work was main contributing factor; whether need for surgery results from a work injury; whether the surgery reasonably necessary; section 60 medical expenses for proposed cervical spine surgery; Held - worker suffered aggravation injury to cervical spine; employment the main contributing factor to the aggravation; need for surgery the result of the work injury; surgery reasonably necessary; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, March v Stramare (E & M H) Pty Limited, Flounders v Millar, Comcare v Martin, Rose v Health Commission (NSW), Diab v NRMA Ltd, and Pelama Pty Ltd v Blake applied.

Decision date: 31 August 2020 | Member: Arbitrator Ross Bell

Perkins v Bunnings Group Limited [2020] NSWWCC 294

Claim for lump sum compensation as a result of admitted psychological injury sustained by the worker; matter to be referred to AMS for assessment; dispute as to whether two reports of a psychiatrist who prepared reports at the request of the respondent’s insurer claimed to be IMC reports, should be included in the documents referred to the AMS together with the respondent’s IME report of a psychiatrist and the worker’s IME report of a psychiatrist; issue as to whether the two alleged IMC reports are forensic medical reports as defined in reg 44 (4) of the Regulations; Held - finding that these two reports are forensic medical reports as defined, and that they are therefore inadmissible in the proceedings and should not be included in the documents to be referred to the AMS for assessment of WPI.

Decision date: 31 August 2020 | Member: Arbitrator Brett Batchelor

Zahedian v Empire Hospitality Australia Pty Limited [2020] NSWWCC 295

Alleged consequential right knee condition resulting from left knee accepted injury through overcompensation; absence of claim for right knee; worker’s IME certified 0% WPI for right lower extremity; whether referral to AMS is appropriate; Held – on the evidence no right knee consequential condition so referral issues unnecessary to decide; obiter regarding need for proper body part claim; award for respondent in respect of alleged right knee condition

Decision date: 31 August 2020 | Member: Arbitrator Philip Young

Zubary v SM NSW PTY LTD [2020] NSWWCC 296

Worker failed to advise his local doctors of an alleged injury caused by lifting formwork; he changed his local doctor some seven months later and reported the injury to him; he then notified his original local doctors, who noted that he had attended on a number of occasions without mentioning any work-related injury since the alleged date of injury; Qannadian v Barteer Enterprises Pty Ltd, Morkos v Primo Retail Pty Ltd considered; Held - award respondent.

Decision date: 31 August 2020 | Member: Arbitrator John Wynyard

Mitropoulos v Qantas Airways Limited [2020] NSWWCC 297

Reconsideration under section 350 of 1998 Act; AMS issued MAC for 6% WPI pursuant to section 66 of the 1987 Act (below threshold); worker’s solicitor made mistake in relation to time for appeal; 28 days passed so framed as a section 350 application; after MAC worker re-engaged IME Dr Patrick who disagreed with MAC; relevance, delay & other factors; Held - Samuel v Sebel Furniture Limited applied; application to set aside Certificate of Determination refused; leave to reconsider MAC not granted.

Decision date: 2 September 2020 | Member: Arbitrator Philip Young

Yang v Halliday Engineering Pty Ltd [2020] NSWWCC 298

Lump sum compensation claim for impairment of cervical spine under the 1987 Act; worker sustained work-related low back injury as a result of incident on 13 February 2007; later complained of cervical spine symptoms; worker unable to discharge his onus of proof to show any cervical spine injury being work-related; Held - award for respondent

Decision date: 2 September 2020 | Member: Arbitrator Michael Perry