Issued 29 January 2021

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

Wilson v OneSteel Manufacturing Pty Ltd [2021] NSWWCC 18

Claim for costs of and incidental to hearing aids; whether hearing aids are reasonably necessary as a result of an accepted workplace injury; Held- hearing aids are reasonably necessary; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service considered; BlueScope Steel (AIS) Pty Ltd v Sekulovski and Murphy v Allity Management Services Pty Ltd applied; respondent is to pay the costs of and incidental to the provision of the hearing aids proposed in the quote obtained by Dr Dhasmana.

Decision date: 18 January 2021 | Member: Arbitrator Cameron Burge

Donnelly v Camsons Pty Ltd [2021] NSWWCC 19

Claim for cost of medical cannabis recommended by pain specialist as an adjunct to a pain management program; Held - Commission not satisfied that treatment reasonably necessary; no compelling evidence that treatment was effective or safe in the circumstances of the case.

Decision date: 19 January 2021 | Member: Arbitrator Paul Sweeney

Hare v Boral Construction Materials Group Ltd [2021] NSWWCC 20

Application for further lump sum compensation in respect of injury in September 2005; in respect of injury to the left upper extremity, cervical spine and consequential condition in the lumbar spine due to incomplete cervical lesion; prior section 66A agreements as to 7% WPI from injury to left upper extremity (shoulder) and 1% WPI from consequential condition in right upper extremity (elbow); applicant relied upon a diagnosis of “incomplete cervical lesion” giving rise to incapacity in the cervical spine and lumbar spine diagnosed by treating neurologist, Dr Teychenné in 2018; MRI scans and nerve conduction studies were all reported as normal; the conclusions of Dr Teychenné were substantially different to the opinions of other neurologists who had seen the applicant; no complaint of neck injury prior to March 2008 was recorded in medical records; Held- the opinion of Dr Teychenné was not supported by other treating and qualified neurologists; the history relied upon by of Dr Teychenné was of a nature that would be expected to have been reported and noted by treating medical practitioners but was not; injury to the cervical spine in September 2005 was not established on the balance of probabilities.

Decision date: 19 January 2021 | Member: Arbitrator William Dalley

Nunan v Kirinari Community Services Ltd [2021] NSWWCC 21

Claim for cost of left total knee replacement surgery pursuant to section 60 of the 1987 Act; dispute as to the pathology in the applicant’s left knee said to give rise to the reasonable necessity for the surgery; no dispute that the applicant injured her knee in a compensable motor vehicle accident in 2003; claim for cost of surgery in 2019; examination of the radiological evidence and history of complaints and treatment over the long period between date of injury and claim for cost of surgery; finding that the pathology which originated with the injury to the left knee in 2003 causative of the reasonable necessity for surgery claimed in 2019, notwithstanding the development of a significant condition in the knee in 2018/2019, unrelated to the injury sustained in the motor vehicle accident in 2003; preference of the opinion of the IME retained by the applicant to that retained by the respondent; Held - award in favour of the applicant for the cost of surgery, associated treatment and rehabilitation expenses.

Decision date: 20 January 2021 | Member: Arbitrator Brett Bachelor.

Miller & Others v Secretary, Department of Family and Community Services [2021] NSWWCC 22

Deceased worker suffered an asthma attack in the course of her employment whilst driving the employer’s bus from Dubbo to Brewarrina; asthma attack progressed over a period of 30 minutes and the deceased suffered a cardiac arrest and anoxia and died; prior proceedings were brought by the applicants based on an injury alleged to be an aggravation of asthma within the meaning of section 4(b)(ii) of the 1987 Act; those proceedings were unsuccessful due to a defence under section 9A of the 1987 Act; the applicants then brought these proceedings alleging that the injury was cardiac arrest and anoxia within the meaning of section 4(a); these proceedings were successful before a different Arbitrator; on appeal the issues of Anshun estoppel and issue estoppel were remitted for redetermination; Held- issue estoppel based on the “remoteness of the location” did not arise as this “issue” was part of the section 9A defence which depended upon a different injury; the respondent had not established that the issue was identical in the respective proceedings as the remoteness of the location had to be considered with the injury alleged; Kuligowski v MetroBus and Habib v Radio 2UE Sydney Pty Ltd applied; respondent’s defence of Anshun estoppel successful; the applicants were aware of the section 4(a) injury in the prior proceedings and had not explained why it was then brought; observations in Port Melbourne Authority v Anshun that party should explain why a defence was not pursued applied; the prior and present proceedings involved the same factual circumstances and extremely similar causes of action; the findings in the prior proceedings on the basis of the failure to satisfy section 9A because the deceased had taken no action to treat the asthma attack in the critical period when inconsistent with the conclusion reached in the present proceedings that section 9A had been established; principles of policy considerations of conflicting judgments and finality of litigation in circumstances where the applicants knew of the further case of action in the prior proceedings satisfied the Anshun defence; award for the respondent.

Decision date: 8 January 2021 | Member: Arbitrator John Harris

Medical Appeal decisions

Frangoff v Insight Security Services Pty Limited [2021] NSWWCCMA 7

Medical appeal by worker against non-threshold MAC; all PIRS categories except travel challenged; submissions speculative and without support; hypotheses as to effect of pandemic rejected; reliance on section 32A of the 1987 Act misconceived; claim for aggregation of assessments rejected; Ballas v Department of Education applied; Held- MAC confirmed.

Decision date: 14 January 2021 | Panel Members: Arbitrator John Wynyard, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychological injury.

Beard v Chatham Glen Ptd Ltd [2021] NSWWCCMA 8

Injury to left upper extremity and right upper extremity; AMS assessed 16% WPI of the left upper extremity and deducted one tenth for pre-existing conditions of obesity and hypothyroidism; whether the AMS fell into error or made assessment on the basis of incorrect criteria in coming to the conclusion that there was a pre-existing injury or condition; whether the AMS had pointed to the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributed to that assessment; Held – error in making a deduction of one tenth for pre-existing condition; MAC revoked.

Decision date: 15 January 2021 | Panel Members: Arbitrator Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon | Body system: Right upper extremity and left upper extremity.

Olah-Jewell v Secretary, Department of Education [2021] NSWWCCMA 9

Worker was a teacher, who sustained an accepted psychological injury; AMS examined the worker and assessed 8% WPI; worker submitted that the MAC contained a demonstrable error and the assessment was made on the basis of incorrect criteria in the PIRS categories of social and recreational activities and employability; Panel agreed with the PIRS ratings made by the AMS and his assessment of WPI; Held- MAC confirmed.

Decision date: 18 January 2021 | Panel Members: Arbitrator Carolyn Rimmer, Dr Patrick Morris and Dr Julian Parmegiani | Body system: Psychological injury.

Reid v Australian Timber Shutters Pty Ltd [2021] NSWWCCMA 10

Appellant worker alleged demonstrable error by way of failure to provide reasons and failure to consider evidence with respect to exclusion of hearing loss below 2000 Hz and extent of tinnitus on assessment of industrial deafness claim; Held- appellant worker was exposed to loud noise over a period of 13 years; the history recorded by the AMS sufficiently explained why he had excluded hearing loss below 2000 Hz; extent of exposure was insufficient to give rise to hearing loss at those frequencies; failure to provide reasons was not established; the AMS reasoned that the appellant had not sought medical treatment in respect of his tinnitus in assessing 2% WPI where both independent medical experts had assessed 3%; uncontradicted evidence established that the appellant had sought treatment in respect of tinnitus and the conclusion of the AMS was based upon an incorrect finding of fact; the panel agreed appropriate assessment was 3% WPI for tinnitus.

Decision date: 19 January 2021 | Panel Members: Arbitrator William Daley, Dr Henley Harrison and Dr Robert Payten | Body system: Hearing loss

Turuwhenua v Central Coast Council [2021] NSWWCCMA 11

Whether assessment based on incorrect criteria; whether demonstrable error on the face of the certificate because of omission of reference to the use of a specific medication; allowance of further WPI for the effects of treatment; paragraphs 1.31 and 1.32 of SIRA Guidelines; finding of AMS that radiculopathy absent; differences of AMS findings to those of other assessors; use of clinical judgement by AMS; explanation for different findings; Held - grounds of appeal not made out in relation to demonstrable errors on the face of the certificate and incorrect criteria; MAC confirmed; Glenn William Parker v Select Civil Pty Limited, Ferguson v State of New South Wales considered.

Decision date: 20 January 2021 | Panel Members: Arbitrator Ross Bell, Dr Brian Noll and Dr Mark Burns | Body system: Neurological and right lower extremity