2021 Legal Bulletins
Issued 5 February 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.

Court of Appeal decision

Statutory Interpretation; amendment; where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to 1987 Act came into force; whether section 82A of the 1987 Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012.

Decision date:  2 February 2021 | Before: Leeming JA, McCallum JA and Garling J

Presidential decision

Whether the Arbitrator was correct in finding that a case of consequential injuries allegedly resulting from a back injury which was not in dispute had not been made out specifically by reason of the Arbitrator’s view that the applicant’s evidence was unconvincing.

Decision date:  28 January 2021 | Before: Acting Deputy President Larry King SC

Arbitral decisions

Claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by bullying, intimidation and overwork; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline; Northern NSW Local Health District v Heggie, Hamad v Q Catering Ltd and Attorney General’s Department v K considered; Held – action taken by respondent with respect to discipline not established; section 11A defence not maintained; award of weekly payments of compensation for no current work capacity and payment of reasonable medical expenses.

Decision date: 21 January 2021 | Member: Arbitrator John Isaksen.

Applicant suffered an agreed injury of further hearing loss deemed to have happened on 16 December 2014; applicant and respondent and respondent’s insurer had entered into a deed of settlement and release on 30 January 2017 requiring insurer to pay damages for injuries as defined in schedule to the deed which included injury to senses; respondent denied liability to pay compensation to applicant for injury of further hearing loss on the basis the applicant had recovered damages for that injury and was consequently precluded from recovering compensation by section 151A of 1987 Act; applicant argued because neither he nor respondent had complied with the procedural requirements of 1998 Act with respect to claiming damages for his injury of further hearing loss, the damages he received pursuant to the settlement recorded in the deed could not be damages for his injury of hearing loss, because if otherwise deed would contravene section 234 of 1998 Act; applicant also claimed that he did not receive an injury of hearing loss until the extent of his hearing loss was assessed by an ENT surgeon in March 2020; Held - applicant’s submissions not accepted; found applicant had recovered damages for his injury of further hearing loss; award for the respondent.

Decision date: 21 January 2021 | Member: Arbitrator Marshal Douglas

The worker claimed compensation in the third entitlement period pursuant to section 38 of the 1987 Act; the respondent contended that the Commission did not have jurisdiction to order weekly compensation pursuant to section 38 of the 1987 Act relying on Lee v Bunnings Group Ltd; the respondent otherwise contended that applicant did not satisfy the conditions set out in section 38(3)(b) and (c); Held- the Court of Appeal in Sabanayagam v St George Bank Ltd held that the Commission had jurisdiction in the third entitlement period; observations inconsistent with Sabanayagam; subsequent Court of Appeal decision in Hochbaum v RSM Building Services Pty Ltd provided that the Commission had jurisdiction in the fourth entitlement period inconsistent with respondent’s submissions; issue of whether applicant had complied with section 38(3)(b) not before Commission and the respondent did not seek leave to raise this issue pursuant to section 289A; Whaley v Upper Hunter Shire Council applied; construction meant that “indefinitely” in section 38(3)(c) meant an unknown or non-specific period and does not mean “permanent” or that the worker had attained “MMI”; applicant’s capacity assessed.

Decision date: 21 January 2021 | Member: Arbitrator John Harris

Claim for compensation for medical treatment pursuant to section 60 of the 1987 Act; applicant compensated for cost of hearing aids for accepted work related hearing loss; whether recommended hearing aid accessories was “medical or related treatment” within section 59 of the 1987 Act; whether recommended hearing aid accessories was reasonably necessary as a result of the work injury; Held – the recommended hearing aid accessories was “medical or related treatment” within section 59 of the 1987 Act; the recommended hearing aid accessories was reasonably necessary as a result of the work injury.

Decision date: 21 January 2021 | Member: Arbitrator Karen Garner

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 Ltd 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: 22 January 2021 | Member: Arbitrator Glenn Capel

Claim for incurred and future section 60 expenses in respect of right shoulder injury; injury disputed; whether surgery to shoulder proposed is reasonably necessary as a result of injury; application of section 59A; Held – applicant sustained injury pursuant to section 4(b)(ii); the proposed surgery is reasonably necessary as a result of injury; compensation for the surgery not currently payable pursuant to section 59A(1) as compensation period expired; respondent ordered to pay incurred section 60 expenses subject to section 59A.

Decision date: 25 January 2021 | Member: Arbitrator Rachel Homan

Injured truck driver; injury and incapacity not in dispute; correct calculation of PIAWE under the former section 44C to G of the 1987 Act; calculation of PIAWE in first 52 weeks to include a salary sacrifice deduction but exclude allowance for remote travel; calculation of PIAWE after 52 weeks where fair work instrument applies; PIAWE after 52 weeks does not include a payment for pick-up and delivery paid on an hourly basis and not regarded as commission or piece rates; award for the worker.

Decision date: 27 January 2021 | Member: Arbitrator Jane Peacock

Allegation of consequential condition in left knee as a result of undisputed right knee injury; consequential condition alleged to result from fall on the way to a job seeking appointment; circumstance of injury disputed; evidence weighed in the balance; Held- not satisfied on the balance of probabilities as to allegation of injury; award for the respondent.

Decision date: 27 January 2021 | Member: Arbitrator Jane Peacock.

Medical Appeal decisions

Appeal from assessment of WPI on the grounds of deterioration in the worker’s condition; Certificate of Determination giving effect to previous assessment set aside by arbitrator; evidence of deterioration in the condition of the shoulders and skin; assessment by Appeal Panel; Held - MAC revoked and replaced.

Decision date: 13 January 2021 | Panel Members: Arbitrator R J Perrignon, Dr Mark Burns and Dr John Brian Stephenson | Body system: Right upper extremity, left upper extremity and scarring.

Worker suffered multiple injuries on different dates; complex referral; numerous errors identified, undoubtedly due to the complexity of the matter; some errors merely in calculations which the Panel corrected; other errors included incorrect interpretation of section 323 and a failure to award any WPI for scarring (Temski) despite the worker having undergone numerous surgical procedures and evidence as to nature and extent of the scarring; MAC revoked.

Decision date: 20 January 2021 | Panel Members: Arbitrator Deborah Moore, Dr Rodger Pillemer and Dr Tommasino Mastroianni | Body system: Right upper extremity, scarring, cervical spine, lumbar spine, left upper extremity, left lower extremity, right lower extremity and scarring TEMSKI

AMS assessment of WPI following bilateral total knee replacements; obvious error regarding injury date in certificate; confusing and superfluous notations on the face of the referral; AMS asked to assess without date of injury; AMS asked to apportion assessed WPI amongst prior injuries; AMS asked to revisit section 323 deduction in view of prior injuries; Held- appellant employer’s submissions difficult to comprehend and rejected; MAC revoked to correct the obvious error; otherwise confirmed.

Decision date: 21 January 2021 | Panel Members: Arbitrator John Wynyard, Dr Margaret Gibson and Dr James Bodel | Body system: Right lower extremity and left lower extremity.

Assessment of whole person impairment as a result of psychological injury; assessment of class 2 impairment in respect of concentration persistence and pace; whether demonstrable error or application of incorrect criteria; fresh or additional evidence; Held - assessment of AMS confirmed.

Decision date: 21 January 2021 | Panel Members: Arbitrator R J Perrignon, Dr Julian Parmegiani and Professor Nicholas Glozier | Body system: Psychological injury.

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