Legal Bulletin No. 63

Issued 25 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

Hunter v Bowral Management Company Pty Ltd [2020] NSWWCC 314

Worker claimed benefits as result of injury alleged to have occurred in the course of her employment as a nurse due to a patient suddenly taking hold of her and dragging on her; claim form and history provided to treating general practitioner and independent medical expert for the respondent described onset of low back pain while writing up notes; worker’s case confined to frank injury; consideration of conflicting evidence; Held – on balance the evidence did not establish reasonable satisfaction that the worker had suffered a frank injury in the manner relied upon in the proceedings; Briginshaw v Briginshaw, Nguyen v Cosmopolitan Homes applied.

Decision date: 10 September 2020 | Member: Arbitrator William Dalley

Jenkins v Coastwide Steel & Metalwork Pty Limited [2020] NSWWCC 315

Claim for lump sum compensation for alleged thoracic and lumbar spine injury; lumbar injury disputed; previous injury with intermittent flare ups; medicolegal reports criticised; Held – worker sustained injury to lumbar spine pursuant to section 4(b)(ii); referral to AMS for assessment of degree of permanent impairment resulting from injury to thoracic and lumbar spine.

Decision date: 10 September 2020 | Member: Arbitrator Rachel Homan

BBP v Zoran The Painter Pty Ltd [2020] NSWWCC 316

Partially incapacitated for work as a result of injury to the left shoulder and cervical spine in the course of employment with the respondent on 4 November 2011; no work capacity decision issued by the insurer for the respondent;  discussion of the amendments to the 1987 Act introduced by the Workers Compensation Legislation Amendment Act 2012; worker an “existing recipient of weekly payments” immediately before 1 October 2012; Held – worker partially incapacitated for work as a result of injury; discussion of section 40(1) of the unamended 1987 Act; principles to be applied in making an award of weekly payments with such payments to continue in accordance with the 1987 Act.

Decision date: 10 September 2020 | Member: Arbitrator Grahame Edwards

Al Masannat v Baiada Poultry Pty Ltd [2020] NSWWCC 317

Accepted injury to neck, shoulders and wrists; hip injury and aggregation in dispute;Lyons v Master Builders Association of NSW Pty Ltd,  Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Federal Broom Co Pty Ltd v Semlitch, Hancock v East Coast Timbers Products Pty Ltd, Davis v Council of the City of Wagga Wagga,Department of Juvenile Justice v Edmed, Department of Ageing, Disability and Home Care v Findlay discussed and applied; Held – Award for applicant; injuries aggregated; claim referred to AMS for assessment.

Decision date: 11 September 2020 | Member: Senior Arbitrator Glenn Capel

Cavaleri v Woolworths Limited [2020] NSWWCC 318

Claim for weekly payments of compensation for psychological injury; whether or not there was current work capacity under s 32A of the Workers Compensation Act 1987 (1987 Act) following redundancy; whether  Commission is at liberty to use Australian  Minimum wage for Adult employees (minimum wage); Held – Commission is entitled to use minimum wage for purposes of rates of pay for work that does have capacity for; applicant entitled to award under sections 36 and 37 of the 1987 Act.

Decision date: 11 September 2020 | Member: Arbitrator Michael Perry

Kershaw v Sydney Metro Roofing Pty Ltd [2020] NSWWCC 320

Worker significantly injured on second day of work; agreed that he was engaged as a contractor but alleged that an oral agreement was entered into before work began on the first day to change his status to that of an employee; Marinic v RPC Interiors, Department of Education v Ireland applied; worker required to prove his case on the balance of probabilities; Held – worker failed to discharge contradictions and inconsistencies in the evidence and failed to discharge the onus; award respondent.

Decision date: 14 September 2020 | Member: Arbitrator John Wynyard

Abeyratna v Iron Mountain Australia Group Pty Ltd [2020] NSWWCC 321

Psychological injury; fact of injury admitted; defence raised pursuant to section 11A of the 1987 Act relating to reasonable actions taken with regards to transfer; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Hamad v Q Catering Limited applied; Irwin v Director-General of Education; Commissioner of Police v Minahan, Northern NSW Local Health Network v Heggie considered; Held – Defence under section 11A(1) not made out; cause of the worker’s injury was multi-factorial, the majority of which causes did not relate to transfer; In any event, the respondent’s actions with regards to transfer on which it sought to rely were not reasonable; claim for permanent impairment remitted to Registrar for referral to an AMS to determine whether worker has reached maximum medical improvement, and if so, the extent of permanent impairment; applicant remains totally incapacitated for work; respondent ordered to pay worker’s weekly compensation; respondent ordered to pay worker’s reasonably necessary medical and treatment expenses.

Decision date: 15 September 2020 | Member: Arbitrator Cameron Burge

Cailotto v Sydney Night Patrol & Inquiry Co Pty Ltd [2020] NSWWCC 322

Claim for right total knee replacement surgery and weekly compensation; the Commission in earlier proceedings had found injury to the left foot in 2016 caused aggravation to asymptomatic left knee resulting in the need for left total knee replacement surgery; Held – award for the worker on the basis of a finding of consequential condition to right knee; finding that right total knee surgery was reasonably necessary treatment; respondent to pay the costs of surgery and pay the worker weekly compensation in the post-operative period.

Decision date: 15 September 2020 | Member: Senior Arbitrator Josephine Bamber

Gotcha! Pty Ltd v Workers Compensation Nominal Insurer (iCare) & others [2020] NSWWCC 323

Worker was appointed the NSW State Coach of the employer with the potential to be appointed as the national manager; employer’s head office was in Queensland where it held its workers compensation insurance; worker suffered injury and was paid compensation payments by the nominal insurer under the NSW legislation; during the period of employment, the workers duties were exclusively in NSW apart from one week of training in WA and three management meetings in Qld; worker ‘s duties were expanded during the employment to include supervision over one studio in WA and in charge of recruitment throughout the country; the further duties were undertaken exclusively from NSW; Held – submission that the intention of the parties that the worker would be promoted to national manger rejected as being speculative and based on the employer being satisfied as to the worker’s performance; the employment in NSW was not a temporary arrangement was defined by section 9AA(6) of the 1987 Act; Klemke v Grenfell Commodities Pty Ltd applied; the state of connection was NSW under section 9AA(3)(a) where the worker usually works and/or under section 9AA(3)(b) where the worker was usually based; orders made that the section 145 notice issued by the Nominal Insurer was valid.

Decision date: 15 September 2020 | Member: Arbitrator John Harris

Hough v Better Home Care Pty Ltd [2020] NSWWCC 324

Claim for section 66 lump sum compensation and section 60 medical expenses under the 1987 Act; the respondent accepts that the applicant suffered an injury to her right shoulder in the incident on 24 February 2015 but denies worker suffered injury to cervical or lumbar spine;  respondent further denies liability for the injury to the right shoulder on the basis that she recovered from the effects of the incident on 24 February 2015; Held – Kooragang Cement Pty Ltd v Bates applied; Diab v NRMA Ltd considered; award for respondent in respect of the claim of injury to the lumbar spine; award for worker in respect of consequential condition to the left shoulder as a consequence of the right shoulder injury on 24 February 2015; award for worker in respect of injury to the cervical spine and lumbar spine arising from the nature and conditions of her employment; proposed surgery to the cervical spine considered reasonably necessary.

Decision date: 15 September 2020 | Member: Arbitrator Elizabeth Beilby

Lee v UNSW Sydney [2020] NSWWCC 325

Dispute in respect of section 119 of the 1998 Act; whether worker’s weekly payments should have been suspended by the respondent (a self-insurer) because of failure by the worker to submit herself for a medical examination in accordance with section 119(1); challenge to the Commission’s jurisdiction to hear dispute as nature of the order sought by worker was ‘declaratory relief’ rejected; Held – finding that Guidelines referred to in section 119(4) not complied with; submission that those Guidelines do not apply to a self-insurer rejected; finding that the worker was not required to submit herself for medical examination pursuant to section 119(1), and that the respondent was not entitled to suspend provisional weekly payments of compensation because of alleged noncompliance with that subsection; respondent ordered to reinstate provisional weekly payments; worker’s claim for interest on unpaid provisional weekly payments pursuant to section 110 of the 1998 Act refused.

Decision date: 15 September 2020 | Member: Arbitrator Brett Batchelor

Sarheed v C1 Formwork Group Pty Ltd [2020] NSWWCC 326

Calculation of PIAWE, terms of employment contract; worker argued that insurer’s assessment of PIAWE based on a payslip was incorrect; role of the Commission as a specialist tribunal with respect to the value of work in the labour market; Held – the assessment made by the insurer was correct; no order.

Decision date: 15 September 2020 | Member: Arbitrator Catherine McDonald

Schneider v Central Coast Council [2020] NSWWCC 328

Claim for medical treatment pursuant to section 60(5) of the 1987 Act; award made in 2018 for specific spinal surgery called nucleoplasty, recommended in 2015 in lieu of an L4-S1 instrumented fusion due to young age of worker; procedure never carried out and treating surgeon now recommended fusion; Held – Diab v NRMA Ltd applied; award made in favour of worker.

Decision date: 16 September 2020 | Member: Arbitrator John Wynyard

Craddock v G H Varley Pty Ltd [2020] NSWWCC 328

Claim for weekly benefits and medical expenses; worker claimed struck on abdomen by air hose; no dispute incident occurred; dispute about what actually occurred and where worker struck; longstanding history of abdominal and gastrointestinal problems; contemporaneous record of site of injury; different site described to specialists; whether fair climate for specialists’ opinions; Held – worker had not discharged onus of proof; award for the respondent.

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