Issued 19 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.

Arbitral decisions

Jungiang Huang v Dong Lin aka Weidong Lin and others [2021] NSWWCC 36

Weekly payments and section 60 expenses under the 1987 Act; applicant injured on building site; first three Respondents uninsured; whether applicant a worker under the 1998 Act; Held- applicant deemed to be a worker pursuant to a labour hire services contract under s.5 Schedule 1 Clause 2A of the 1998 Act; fourth Respondent to pay weekly payments and section 60 expenses to the applicant.

Decision date: 21 August 2020 | Member: Arbitrator Michael Perry

Thi No Dang v Canadian Bacon Pty Ltd [2021] NSWWCC 37

Claim for cost of hearing aids pursuant to section 60 of the 1987 Act; AMS assessed the applicant with 0% whole person impairment and expressed the opinion that hearing aids were not reasonably necessary medical treatment as a result of the injury; Held- award for the respondent as the applicant did not discharge her onus of proof that medical treatment was reasonably necessary as a result of the injury.

Decision date: 4 February 2021 | Member: Arbitrator Kerry Haddock

Rodriguez v Randwick City Council [2021] NSWWCC 38

Applicant sought a declaration pursuant to section 60 (5) of the 1987 Act in respect of a proposed right total knee replacement resulting from admitted injury on 18 July 2017; issue is confined to whether the proposed TKR was “reasonably necessary”; differing opinions from treating orthopaedic surgeons and insurers independent medical expert;  Held- orthopaedic surgeons agreed TKR would be required at a future time but on the balance of probabilities the evidence did not establish that the procedure was appropriate or likely to be effective at the present time and the treatment proposed could not currently be considered to be “reasonably necessary”.

Decision date: 4 February 2021 | Member: Arbitrator William Dalley

Bonnefin v JMB- Jobnet [2021] NSWWCC 39

Claim for weekly compensation; fact of injury not in dispute, nor the extent of the applicant’s incapacity; whether a causal link between injury and incapacity; and whether respondent could rely on defence of novus actus interveniens when it was not raised until after proceedings had commenced; Held- there is a common-sense causal connection between the applicant’s incapacity and the workplace injury in issue; Koorang Cement Pty Ltd v Bates followed; the causal connection between the injury and the incapacity was not broken by treatment carried out on the applicant post-injury; Lindeman Ltd v Colvin discussed; the respondent is ordered to pay the applicant weekly compensation of total incapacity for the period claimed.

Decision date: 5 February 2021 | Member: Arbitrator Cameron Burge

Nair v Westwise Recruitment Pty Limited [2021] NSWWCC 40

Accepted injury to the left shoulder as a result of injury in the course of employment; whether worker developed consequential condition of the right shoulder post-surgery as a result of injury; Kooragang Cement Pty v Bates, Bouchmouni v Bakhos t/as Western Red Services, Moon v Conmah Pty Ltd, Australian Traineeship System v Turner and Schembri v Blacktown City Council discussed and followed; Held- worker suffers with a consequential condition as a result of injury; matter remitted to the Registrar for referral to an AMS to assess permanent impairment of both upper extremities (shoulders) as a result of injury.

Decision date: 5 February 2021 | Member: Arbitrator Grahame Edwards

Niven v A J Niven Gooloogong Buses [2021] NSWWCC 41

Bus driver in a single vehicle motor accident; undisputed injuries; whether the applicant suffered a stroke prior to the accident causing the accident and thereby precluded from the recovery of compensation by reason of the provision of section 9B of the 1987 Act; competing expert medical opinions weighed in the balance; Held- not satisfied that the applicant suffered a stroke within the meaning of section 9B; applicant not precluded from recovery of compensation; matter remitted to the Registrar for referral to an AMS in respect of the lump sum claim.

Decision date: 5 February 2021 | Member: Arbitrator Jane Peacock

Goodwin v G&C Building Pty Ltd [2021] NSWWCC 42

Accepted right shoulder injury; disputed claim for treatment expenses for the lumbar spine, which the applicant alleges developed as a consequential condition due to the treatment for the right shoulder injury; Held - award for the respondent as applicant did not discharge his onus of proof in relation to causation of the alleged consequential lumbar condition.

Decision date: 8 February 2021 | Member: Senior Arbitrator Josephine Bamber

Perin v Concrite Pty Ltd [2021] NSWWCC 43

The respondent was insured by different insurers (GIO and Boral self-insurer) over the period of the applicant’s employment; the applicant’s claim was for lump sum compensation as a result of frank injury to bilateral shoulders in GIO’s period of risk (the occurrence of which was admitted by GIO but the severity of which was denied), and the ‘nature and conditions’ of employment said to give rise to bilateral shoulder injury; also a claim for injury to the cervical spine as a result of the ‘nature and conditions’ of employment and, alternatively, a condition in the cervical spine consequent upon the frank injury to the bilateral shoulders; different dates of injury relied upon by the applicant in respect of injury to cervical spine and bilateral shoulders; Held -  finding in favour of the respondent (in the interests of GIO and Boral) in respect of injury to the cervical spine and condition in the cervical spine consequent upon bilateral shoulder injury; finding of frank (section 4(a)) injury to bilateral shoulders, within the period of risk of GIO; matter remitted to the Registrar for referral to an AMS for assessment of WPI as a result of injury to left upper extremity (shoulder) and right upper extremity (shoulder) on date of frank injury.

Decision date: 8 February 2021 | Member: Arbitrator Brett Bachelor

Calvert v State of New South Wales (Campbelltown Hospital) [2021] NSWWCC 44

Noise-induced hearing loss; worker referred to an AMS by consent; MAC subject to appeal; respondent argued that decision of AMS and Appeal Panel not binding with respect to hearing loss suffered overseas; Held- award made in accordance with MAC and for hearing aids.

Decision date: 10 February 2021 | Member: Arbitrator Catherine McDonald

Morcos v Deosa Enterprises Pty Ltd [2021] NSWWCC 45

Matter remitted from Presidential decision to determine whether the worker is likely to continue indefinitely to have no current work capacity; no judicial interpretation of ‘likely to continue indefinitely’ in New South Wales; reference to decisions with same wording from the state of Victoria; Held – worker had established that he is likely to continue indefinitely to have no current work capacity; award of weekly payments to worker pursuant to section 38 (2) of the 1987 Act.

Decision date: 10 February 2021 | Member: Arbitrator John Isaksen

Medical Appeal decisions

Ananke Holdings Pty Ltd t/as Sofitel Wentworth v Eduardo Sta Juana [2021] NSWWCCMA 20

Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the MAC in relation to subsequent injury; PIRS category of Social and recreational activities; and indications of inconsistency on presentation; Held- ground of appeal in relation to subsequent injury not being excluded from assessment made out; grounds of appeal in relation to PIRS Category and inconsistency of presentation not made out; re-examination conducted by Panel member; MAC revoked; Roads and Maritime Services v Rodger Wilson, NSW Police Force v Registrar of the Workers Compensation Commission of NSW and Greater Western Area Health Service v Austin applied.

Decision date: 4 February 2021 | Panel Members: Arbitrator Ross Bell, Dr Wasim Shaikh and Dr Patrick Morris | Body system: Psychological injury

Prudence v State of New South Wales (Department of Education) [2021] NSWWCCMA 21

Injury to hip resulting in total hip replacement and subsequent revision surgery; AMS made deduction under section 323; no evidence of pre-injury symptoms or osteoarthritis on pre-injury scans; Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse considered; Held- section 323 deduction inappropriate; MAC revoked.

Decision date: 4 February 2021 | Panel Members: Arbitrator Catherine McDonald, Dr David Crocker and Dr Drew Dixon | Body system: Left lower extremity (hip) and scarring TEMSKI

Windley v Athena Bakehouse Pty Ltd [2021] NSWWCCMA 22

Appellant suffered a soft tissue injury to the right wrist and alleged that he developed chronic regional pain syndrome (CRPS); AMS held that the appellant did not suffer from CRPS; appellant sought to tender a statement concerning the examination process and alleged that the AMS failed to provide sufficient reasons for rejecting the claim; Held- statement rejected based on discretionary grounds; Lukacevic v Coates Hire Operations Ltd applied; AMS provided sufficient reasons as he held that the appellant did not display vasomotor and sudomotor changes on examination; discussion of satisfaction of Table 17-1 of the fourth edition guidelines in establishing CRPS and how this differs from a clinical diagnosis used by the medical profession applying the Budapest criteria; findings by AMS on the day of the examination being inconsistent with qualified opinion explicable on the basis that CRPS is a fluctuating condition and the time delay between the previous qualified opinion and the examination before the AMS; pre-eminence given to AMS findings and no error established because his findings were different from prior qualified opinion; Parker v Select Civil Pty Ltd applied;AMS erred by treating the contra lateral extremity loss as a section 323 deduction; this error was corrected on the papers; appeal otherwise dismissed.

Decision date: 4 February 2021 | Panel Members: Arbitrator John Harris, Dr Mark Burns and Dr Brian Noll | Body system: Right upper extremity

Necak v Lemhay Pty Ltd [2021] NSWWCCMA 23

AMS found appellant worker’s presentation at examination was inconsistent with the history he had obtained regarding her injury and what the radiological investigations revealed; AMS considered he was unable to assess the appellant’s permanent impairment; the MAC the AMS issued contained no assessment of the appellant’s permanent impairment; the AMS made no finding with respect to whether the appellant’s impairment is permanent or whether her permanent impairment was fully ascertainable; Held- Appeal Panel held that the AMS was required to assess the appellant’s permanent impairment and, given he found inconsistency in the appellant’s presentation, was required to apply [1.36] of the Guidelines when assessing appellant’s permanent impairment; Appeal Panel held assessment was not made on the basis of correct criteria and that the MAC contained a demonstrable error; MAC revoked.

Decision date: 5 February 2021 | Panel Members: Arbitrator Marshal Douglas, Dr James Bodel and Dr Roger Pillemer | Body system: Cervical spine, right upper extremity, left upper extremity and lumbar spine

Forbes v The Fox Den Café [2021] NSWWCCMA 24

Assessment of whole person impairment as a result of psychological injury; assessment of class 2 impairment in respect of the PIRS scales Self care and personal hygiene, and Concentration persistence and pace; whether demonstrable error or application of incorrect criteria; whether irrelevant factor taken into account; Held- assessment of approved medical specialist confirmed.

Decision date: 8 February 2021 | Panel Members: Arbitrator Richard Perrignon, Dr Douglas Andrews and Dr Julian Parmegiani | Body system: Psychological injury

Liu v Buckley Group Pty Limited (in liquidation) trading as Buckley Group Pty Limited (Deregistered) [2021] NSWWCCMA 25

Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the MAC in relation to the section 323 of the 1998 Act deductions for pre-existing injury, condition, or abnormality; Held- appeal upheld in relation to the deduction of 1/10 for each upper extremity (shoulder); deemed date of injury stipulated in the Application to Resolve a Dispute, although not reflected in the Referral to the AMS; no evidence of pre-existing element prior to period of employment; Fire & Rescue NSW v Clinen, Ryder v Sundance Bakehouse and Cole v Wenaline Pty Ltd considered.

Decision date: 9 February 2021 | Panel Members: Arbitrator Ross Bell, Dr Margaret Gibson and Dr Roger Pillemer | Body system: Lumbar spine, right upper extremity (shoulder) and left upper extremity (shoulder)

O’Reilly v Paul Anthony Howlett [2021] NSWWCCMA 26

Assessment of whole person impairment as a result of injury to the left shoulder and right thigh; whether approved medical specialist erred in the date of the MAC; whether demonstrable error in assessing scarring, right hip and right knee; whether demonstrable error in failing to assess surveillance evidence; Held- assessment of AMS confirmed.

Decision date: 9 February 2021 | Panel Members: Arbitrator Richard Perrignon, Dr James Bodel and Dr Tommasino Mastroianni | Body system: Left upper extremity and right lower extremity

Walters v Mercy Health Albury Limited [2021] NSWWCCMA 27

Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the MAC in relation to four PIRS Categories; Held - grounds of appeal not made out; additional history given in the form of submissions by appellant; submissions not evidence; classes found by AMS for appealed PIRS Categories were open to him; 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 considered and applied.

Decision date: 9 February 2021 | Panel Members: Arbitrator Ross Bell, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological injury

Sipione v Hobbs Plumbing and Drainage Company [2021] NSWWCCMA 28

Appellant worker suffered injury to left hip; appellant submitted AMS failed to assess the six principal directions of motions of the left hip and, as a consequence, failed to add the impairment values with respect to each of those directions; Held- Appeal Panel claimed AMS had measured appellant’s restricted range of motion in all six planes of motion and recorded his findings on that in MAC; when assessing appellant’s impairment AMS only added those values for which the restricted movement attracted a rating under Table 17-9 of AMA5; MAC upheld.

Decision date: 10 February 2021 | Panel Members: Arbitrator Marshal Douglas, Dr John Brian Stephenson and Dr Tommasino Mastroianni | Body system: Lumbar spine and left hip