Issued 15 January 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

Moore v Foodboss Pty Ltd [2020] NSWWCC 415

Claim for lump sum under the 1987 Act; liability accepted for injury to applicants right shoulder in 2015; applicant alleged his left shoulder later became symptomatic through overusing his left shoulder to protect his right shoulder; Held –applicant sustained symptoms and restriction in left shoulder as a consequence and result of injury to right shoulder; claim with respect to right and left upper extremities impairments remitted to Registrar for referral to AMS.

Decision date: 17 December 2020 | Member: Arbitrator Michael Perry

Sadler v Secretary, Department of Education [2020] NSWCC 416

Claim for section 66 lump sum impairment; section 4 injury; section 11A(1) of 1987 Act defence under categories of dismissal; credit issues; wholly or predominantly; reasonable action; Chisholm v Thakral Finance Pty Ltd trading as Novotel Brighton Beach, Manly Pacific International Hotel Pty Ltd v Doyle, Irwin v Director-General of School Education (Unreported), NSW Compensation Court, Matter No. 14068/97), Smith v Roads and Traffic Authority of NSW, Kooragang Cement Pty Ltd v Bates, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club, Commissioner of Police v Minahan, Jeffery v Lintipal Pty Ltd, Melder v Ausbowl Pty Ltd, Jackson v Work Directions Australia Pty Ltd and Balranald Shire Council v Walsh considered; Held - worker suffered psychological injury and employment the main contributing factor to injury; injury not wholly or predominantly caused by the employer’s action in dismissal; employer’s action not shown to be reasonable; awards for the applicant worker.

Decision date: 18 December 2020 | Member: Arbitrator Ross Bell

Santos v Worldmark Pty Ltd [2020] NSWWCC 417

Lump sum claim for psychological injury with physical injury, recovery and section 11A in issue; Held- applicant established he sustained an ongoing psychological injury; respondent did not discharge its onus of proof in relation to section 11A.

Decision date: 18 December 2020 | Member: Senior Arbitrator Josephine Bamber

Sundstrom v Able Repairs Gladesville Pty Ltd [2020] NSWWCC 418

Claim for proposed lumbar surgery; respondent disputed whether the proposed surgery was reasonably necessary treatment; Held - proposed surgery is reasonably necessary treatment. Diab v NRMA Ltd applied.

Decision date: 18 December 2020 | Member: Senior Arbitrator Josephine Bamber

Thoms v Workers Compensation Nominal Insurer (iCare) & Others [2020] NSWWCC 419

Claim for lump sum compensation in respect of right eye injury causing blindness; whether applicant a worker or deemed worker and in the course of employment at the time of injury; alleged employer uninsured; lack of corroborative evidence; inconsistencies in applicant’s own evidence; Held – applicant failed to discharge the onus of establishing that he was a worker or a deemed worker.

Decision date: 18 December 2020 | Member: Arbitrator Rachel Homan

Austin v State of New South Wales (Sydney Children’s Hospital) [2020] NSWWCC 420

Claim for lump sum compensation in respect of accepted upper extremity injury; whether there is a medical dispute as to the degree of permanent impairment resulting from injury; where applicant relies on respondent’s expert’s assessment; where respondent does not accept own expert’s assessment for reasons articulated in dispute notices; whether discretion to remit the matter to the Registrar for referral to an AMS should be exercised; Held – there is a medical dispute within the meaning of section 319 of the 1998 Act; matter remitted to Registrar for referral to an AMS.

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

Callus v Binettes Pty Ltd [2020] NSWWCC 421

Claim for costs payable under section 60 of the 1987 Actfor proposed surgery in the nature of sleeve gastrectomy and loop bipartition gastric bypass; surgery required as a result of injury sustained to left shoulder on 24 October 2017 during the course of her employment with the respondent;  Held – the applicant requires medical and related treatment as a consequence of the injury she sustained to her left shoulder on 24 October 2017 during the course of her employment with the respondent; the proposed surgery in the nature of sleeve gastrectomy and loop bipartition gastric bypass is reasonably necessary treatment resulting from that injury.

Decision date: 23 December 2020 | Member: Senior Arbitrator Jacqueline Snell

Clarke v Whiteley Corporation Pty Ltd [2020] NSWWCC 422

Worker had a back injury in 2011 for which liability is accepted and for which he has undergone two operations; claim for surgery for alleged hip injury suffered at the same time as the back injury; no contemporaneous complaints re hip; no claim made until after hip condition diagnosed 5 years later; requirements for probative medical evidence in the Commission; South East Sydney Area Health Service v Edmonds applied; Held- the applicant did not suffer an injury to his right lower extremity (hip); award for the respondent.

Decision date: 23 December 2020 | Member: Arbitrator Catherine McDonald

Maroun v One Way Development and Construction Pty Ltd [2020] NSWWCC 423

Claim for revisionary left shoulder surgery; Diab v NRMA Limited considered; Held- particular medical evidence and applicant’s statements satisfied commission on the balance of probabilities; award in favour of applicant; declaration section 60(5) made.

Decision date: 23 December 2020 | Member: Arbitrator Phillip Young

Appleby v Security Specialists Australia Pty Ltd [2020] NSWWCC 424

Claim for compensation in respect of incapacity and impairment resulting from the acceleration of the disease of cervical myelopathy; respondent disputes that the employment was a main contributing factor to the acceleration of the disease in accordance with section 4(b)(ii) of the 1987 Act; absence of medical evidence of main contributing factor; State Transit Authority of New South Wales v El-Archie; AV v AW considered; determined that the employment was both a material contributing factor and the main contributing factor to acceleration of the disease; Held - that the absence of positive medical evidence on the issue of main contributing factor did not preclude such a finding.

Decision date: 24 December 2020 | Member: Arbitrator Paul Sweeney

Pombinho v Coca-Cola Amatil (Aust) Pty Ltd NSWWCC 425

Accepted injury to worker’s left knee; dispute whether worker developed consequential condition in his right knee; whether need for right knee surgery resulted from accepted left knee injury; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Ltd,Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltdall considered and applied; Held- worker developed consequential condition in right knee; surgery reasonably necessary; respondent to pay for proposed surgery pursuant to section 60 of the 1987 Act.

Decision date: 24 December 2020 | Member: Senior Arbitrator Glenn Capel

Labit v University of New South Wales [2021] NSWWCC 1

Claim for bilateral carpal tunnel syndrome; worker was a lecturer who performed increasing keyboard and mouse work; issue on pleadings as form of application did not tick the “disease” box; Held- respondent’s pleadings claim not sustained and worker entitled to rely on disease allegations; medical evidence supportive of the worker as respondent’s evidence adopted scientific approach not civil standard of proof; awards in favour of the worker.

Decision date: 4 January 2021 | Member: Arbitrator Phillip Young

Evans v Australian Unity Home Care Services Pty Ltd [2021] NSWWCC 2

Bilateral carpal tunnel; medical dispute on causation limited to particular facts; none of the medical evidence from any doctor on causation accepted; applicant worker must establish case on balance of probabilities; nine month gap between earlier shoulder injury (accepted) and complaint of wrist and hand problems; Held- worker did not satisfy on the balance of probabilities that the bilateral carpal tunnel syndrome resulted from her employment with the respondent; award for the respondent.

Decision date: 5 January 2021 | Member: Arbitrator Phillip Young

Bernadette Massih v Serco Australia Pty Ltd [2021] NSWWCC 3

Claim for weekly payments and permanent impairment compensation as a result of alleged psychological injury; where employer disputes injury based on psychometric testing; where psychologist’s interpretation of psychometric testing suggests malingering; where specialist psychiatrists offer competing opinions of the value of psychometric testing in diagnosing psychological illness; Brighten v Traino and Makita (Australia) Pty Ltd v Sprowles considered; Held- that the weight to be given to the psychometric testing largely depended on the opinion of specialist psychiatrists; collectively, their opinions demonstrate reservations about the value of psychometric testing in this case; finding of injury; issue of permanent impairment referred to an AMS.

Decision date: 6 January 2021 | Member: Arbitrator Paul Sweeney

Afifi v Wee Services Pty Ltd t/as Priceline Pharmacy Rhodes [2021] NSWWCC 4

Psychiatric injury; applicant summarily dismissed for alleged sexual harassment; consideration of section 11A of the 1987 Act; whether section 11A defence established; whether employer reasonable in actions; whether lack of statement evidence from employer affected outcome; whether failure to lodge relevant policy affected outcome; worker accuser implausible and circuitous;  Northern NSW Health Network v Heggie, Fox v Percy considered; Held - award applicant for weekly payments and section 60 expenses.

Decision date: 7 January 2021 | Member: Arbitrator John Wynyard

Dominguez v De Martin & Gasparini Pty Ltd [2021] NSWWCC 5

Claim made by worker for weekly payments, medical expenses and permanent impairment for injury to lumbar spine, cervical spine and both shoulders; disease injury; respondent disputes injury and incapacity; respondent also disputes claim due to failure to give notice of injury as soon as possible after injury happened and make a claim for compensation within 6 months of injury; Gregson v L & M R Dimasi P/L and AV v AW considered; Held– failure to give notice of injury as soon as possible occasioned by ignorance and no prejudice to the respondent; failure to make claim for compensation within 6 months occasioned by ignorance; worker sustained a disease injury to the lumbar spine and left shoulder pursuant to section 4(b)(ii) of the 1987 Act; worker has had no current work capacity since 2 October 2018; award for weekly payments and medical treatment; referral for assessment by AMS for injury to the lumbar spine and left shoulder.

Decision date: 7 January 2021 | Member: Arbitrator John Isaksen

Johnson v Tysin Pty Ltd Brownsugar at Bayviews (In Liquidation) [2021] NSWWCC 6

Claim for lump sum compensation in respect of accepted hand injury; whether there is a consequential neuropathic pain syndrome affecting the remainder of the right upper extremity; evidence from treating doctors and applicant sparse; restrictions in shoulder found by workers medicolegal expert not reflected in other evidence; subsequent injurious event at work; Held – applicant sustained a consequential neuropathic pain syndrome affecting her right upper extremity as a result of the injury; matter remitted to Registrar for referral to an AMS.

Decision date: 7 January 2021 | Member: Arbitrator Rachel Homan

Turley v Jason Paul Eisel & Kristie Anne Eisel t/as Actiff Building Constructions & Others [2021] NSWWCC 7

Claim for weekly benefits and permanent impairment compensation payable under the 1987 Act as against the first respondent resulting from injury sustained to both knees and right ankle together with consequential injury to his lower back and right hip; claim for weekly benefits, medical and related treatment, and permanent impairment compensation payable under the 1987 Act as against the second respondent resulting from aggravating injury sustained to both knees, right ankle, both hips, lower back, both shoulders and neck with deemed date of injury of 20 September 2013;  Held – by consent the applicant worker sustained injury arising out of or during the course of his employment with the first respondent on 6 December 1992; the worker’s claim for permanent impairment compensation against the first respondent is remitted to the Registrar for referral to an AMS for purpose of assessment under the Table of Disabilities and also for the purpose of assessment of WPI;  by determination, the applicant sustained aggravating injury to both knees, right ankle, both hips, low back, both shoulders and neck arising out of or during the course of his employment with the second respondent (with deemed date of injury of 20 September 2013) and his employment with the second respondent was the main contributing factor to such aggravating injury; the applicant’s claim for permanent impairment compensation against the second respondent (with deemed date of injury of 25 September 2019, being the date of claim for permanent impairment compensation) is remitted to the Registrar for referral to an AMS for the purpose of assessment of WPI;  by consent the applicant’s claims for weekly benefits and medical and related treatment are stood over until such time as the MAC has issued and the appeal period has passed

Decision date: 7 January 2021 | Member: Arbitrator Jacqueline Snell

Medical Appeal decisions

Mlacic v Premier Motor Services Pty Ltd [2020] NSWWCCMA 179

Worker referred for assessment of WPI of the lumbar spine and the cervical spine as a result of the injury on “29 January 2015 and 29 January 2015 – deemed”; AMS assessed 21% WPI of the lumbar spine; deducted one tenth for pre-existing condition resulting in an assessment of 19% WPI of the lumbar spine and assessed 0% WPI of the cervical spine; the Panel was satisfied that the AMS failed to provide adequate reasons for assessing the appellant as DRE I for the cervical spine in circumstances where there had been a past history of pins and needles in the arm and complaints of pain in the arm and this was a demonstrable error; re-examination required and Dr Bodel assessed 5% WPI in respect of the cervical spine; Held - MAC revoked and worker assessed at total of 23% WPI.

Decision date: 17 December 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr James Bodel and Dr Ross Mellick | Body system: Cervical spine and lumbar spine

Andrews Meat Industries Pty Ltd v Nana Ama Agyapa [2020] NSWWCCMA 180

Whether AMS considered or obtained a correct history with respect to prior injury worker suffered in motor vehicle accident; Panel found AMS had not and that consequently MAC contained a demonstrable error; Held - MAC revoked and deduction made under section 323(1) of the 1998 Act.

Decision date: 18 December 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Gregory McGroder and Dr Drew Dixon | Body system: Cervical spine, right upper extremity and left upper extremity

Woolworths Limited v Eulalia Amate Coppin [2020] NSWWCCMA 181

Cervical spine, right upper extremity and left upper extremity injury; appellant employer alleged error in assessment by the AMS in respect of the left upper extremity; respondent worker conceded this error and this part of the assessment revoked; appellant also alleged error in respect of the cervical spine assessment in the allowance by the AMS for 2% WPI for impact on ADL; this assessment was open to the AMS on the basis of his clinical findings and correctly assessed in accordance with the relevant criteria; Held - Panel could not discern error and this aspect of the assessment confirmed; MAC revoked.

Decision date: 18 December 2021 | Panel Members: Arbitrator Jane Peacock, Dr Brian Stephenson and Dr Mark Burns | Body system: Cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder).

Inner West Council v Peter James Clement [2020] NSWWCCMA 182

Appeal against the assessment of deduction pursuant to section 323 only; the parties agree AMS failed to consider a pre-existing injury which occurred the day prior to the commencement of the period during which employment tasks caused the subject injury; in fact, two prior injuries had occurred; the issue between the parties was the extent of the deduction and whether one tenth was “at odds with the available evidence”; Held -  MAC revoked; two prior injuries to the same body part had been agreed to have given rise to loss of use; results of arthroscopies and radiological examination disclosed the extent of pathology rendering a deduction of one tenth at odds with the available evidence; the Panel assessed a deduction of one quarter pursuant to section 323.

Decision date: 23 December 2020| Panel Members: Arbitrator William Dalley, Dr John Ashwell and Brian Stephenson | Body system: Left lower extremity (knee)

Secretary, Department of Communities and Justice v Deborah Doulman [2021] NSWWCCMA 183

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC in relation to findings for deduction for pre-existing condition and PIRS categories; whether incorrect diagnosis by AMS; whether AMS erred in relying on history taken from the worker; Held -grounds of appeal not made out; diagnosis of mild depression for pre-existing condition open to AMS; difference of opinion not a ground of appeal; importance of clinical examination; no error found; assessment based on correct criteria; 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 and Mahenthirarasa v State Rail Authority of New South Wales & Ors applied.

Decision date: 23 December 2020 | Panel Members: Arbitrator Ross Bell, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological injury

Mulholland v Uniting Care [2020] NSWWCCMA 184

Appeal from assessment of 12% whole person impairment (lumbar spine); whether error in failing to consider major criteria on the basis that AMS failed to diagnose and make allowance for radiculopathy into the right lower extremity; Panel found there was no clinical evidence of radiculopathy in her lower limbs with insufficient criteria to satisfy Part 4.27 of the Guidelines in terms of the major criteria for radiculopathy; Held – MAC revoked.

Decision date: 23 December 2021 | Panel Members: Arbitrator R J Perrignon, Dr John Ashwell and Dr Margaret Gibson | Body system: Lumbar spine and skin scarring

Paul James Pallett v Secretary, Department of Communities and Justice NSWWCCMA 185

Worker referred for assessment of WPI of the left lower extremity, scarring (TEMSKI) and CPRS (left lower extremity) as a result of the injury on 26 July 2018; AMS assessed 10% WPI of the left lower extremity and 2% under TEMSKI resulting in a total assessment of 12% WPI; the Panel was satisfied that the AMS failed to consider the whole of the appellant’s nerve damage and this was a demonstrable error; matter re-assessed using methodology for assessment of CPRS 1 and not CPRS 2; Panel assessed 24% WPI in respect of the left lower extremity and 2% under TEMSKI; Held - MAC revoked and worker assessed at total of 26% WPI.

Decision date: 23 December 2021 | Panel Members: Arbitrator Carolyn Rimmer, Dr Robin Fitzsimons and Dr Ross Mellick | Body system: Left lower extremity and scarring

Rhodes v St Lukes Care [2020] NSWWCCMA 186

Appellant worker alleged injury to her right shoulder in workplace incident and, or alternatively, to have suffered consequential injury in right shoulder due to overcompensating for neck and left shoulder injuries suffered in same incident; AMS made 100% deduction under section 323 of the 1998 Act on basis that right shoulder injury was due to a constitutional condition; whether AMS erred in doing so; Held- appellant recovered from soft tissue injury to right shoulder she suffered in workplace incident, but appellant thereafter used her right shoulder more to protect her neck and left shoulder that she injured in incident and this aggravated a pathology in right shoulder that had developed independently of workplace incident due to constitutional factors; that aggravation contributed to her impairment; AMS erred by applying section 323; MAC revoked.

Decision date: 24 December 2020 | Panel Members: Arbitrator Marshall Douglas, Dr David Crocker and Dr John Ashwell | Body system: Cervical spine, thoracic spine, left upper extremity and right upper extremity

Meznarsic v Benbren Pty Limited [2021] NSWWCCMA 1

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC; consistency of presentation; whether error in finding inconsistency; use of paragraph 2.14 of the Guidelines; lack of reference to relevant medical material; use of clinical judgement by AMS;  Held - grounds of appeal made out in relation to demonstrable errors on the face of the MAC and incorrect criteria; Glenn William Parker v Select Civil Pty Limited and Ferguson v State of New South Wales applied; MAC revoked.

Decision date: 4 January 2021| Panel Members: Arbitrator Ross Bell, Dr Tommasino Mastroianni and Dr James Bodel | Body system: Cervical spine, right upper extremity and left upper extremity

Brooke Raymond v Embassy of the United States of America [2021] NSWWCCMA 2

Appeal against MAC which assessed WPI despite the AMS finding that the worker had not attained maximum medical improvement due to proposed surgery; parties agreed that maximum medical improvement had not been established and that assessment was therefore inappropriate; Held; Guideline 1.15 applied; MAC revoked and a finding that the appellant worker had not attained maximum medical improvement was made.

Decision date: 4 January 2021 | Panel Members: Arbitrator William Dalley, Dr Rodger Pillemer and Dr Brian Stephenson | Body system: Cervical spine, lumbar spine, left hip and left knee

Mihajlovic v Cage Guard Security Guard Services Pty Ltd [2021] NSWWCCMA 3

Appellant worker suffered injury to right knee and consequential conditions in cervical spine, right shoulder and upper digestive tract; appellant appealed against the MAC on basis that AMS had not properly examined him, specifically with respect to criteria necessary to conclude whether radiculopathy was present, and that AMS had not exposed his reasoning for assessing 0%WPI relating to the upper digestive tract; AMS did not record findings with respect to all criteria in Part 4.27 of the Guidelines; Held - Panel held that AMS’s failure to set out findings with respect to all criteria is consistent with the AMS having overlooked those criteria; Peachey v Bildon Pty Ltd (Quality Siesta Resort Ltd & Quality Hotel) applied; MAC revoked.

Decision date: 5 January 2021 | Panel Members: Arbitrator Marshal Douglas, Dr James Bodel and Dr Richard Crane | Body system: Right lower extremity, cervical spine, right upper extremity and upper digestive tract

Nicholls v The Good Guys Discount Warehouse (Australia) Pty Ltd [2021] NSWWCCMA 4

Worker suffered a back injury and underwent surgery on two occasions; AMS identified signs which suggested the presence of radiculopathy but failed to assess it and held that scar was an uncomplicated scar from a standard surgical procedure without describing it; Held - re-examination required which revealed that criteria for radiculopathy fulfilled and scar warranted assessment under TEMSKI; MAC revoked.

Decision date: 5 January 2021 | Panel Members: Arbitrator Catherine McDonald, Dr Margaret Gibson and Dr Phillipa Harvey- Sutton | Body system: Lumbar spine and TEMSKI

Prasad v State of NSW, South Western Sydney Local Health District [2021] NSWWCCMA 5

Appellant worker injured right shoulder in two separate incidents and suffered consequential conditions in left shoulder and cervical spine;  appellant submitted that the AMS should have assessed the signs and symptoms of her cervical spine as falling within DRE II and that the AMS should have aggregated her impairment of her right shoulder from the two injurious incidents because the incidents resulted in one pathology; Held - Panel held that AMS’s examination was thorough and the AMS was entitled to rely on his findings from his examination and, based on those findings, the AMS correctly assessed the appellant’s impairment of her cervical spine as falling within DRE I which attracts a rating of 0% WPI; Panel held that in accordance with section 322(2) of the 1998 Act, the AMS ought to have have assessed the appellant’s impairment relating to her right shoulder from the two injurious events together because there was a single pathology in the appellant’s shoulder from the two events; MAC revoked.

Decision date: 4 January 2021 | Panel Members: Arbitrator Marshal Douglas, Dr Mark Burns and Dr Drew Dixon | Body system: Right shoulder, left shoulder and cervical spine