2021 Legal Bulletins
Issued 25 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

Claim for s 66 lump sum compensation; accepted left knee injury; whether the applicant sustained a consequential condition at the lumbar spine; lack of contemporaneous treating medical evidence; whether proper factual foundation for acceptance of medicolegal opinion; Held – applicant sustained a consequential lumbar spine condition; matter remitted to Registrar for referral to an Approved Medical Specialist to assess the degree of permanent impairment.

Decision date: 11 February 2021 | Member: Arbitrator Rachel Homan

Claim for permanent impairment compensation; whether accepted workplace incident which caused a frank injury to right knee was the main contributing factor to an aggravation to the worker’s degenerative but asymptomatic lumbar spine condition; whether absence of clinical records from hospital is a sufficient basis for drawing an inference that those records would not have assisted the applicant had they been in evidence; applicant must prove the workplace incident was the main contributing factor to any aggravation of a pre-existing condition, not to the condition itself; Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd followed; Ariton Mitic v Rail Corporation of NSW and Mylonas v The Star Pty Ltd discussed; A tribunal of fact does not need to draw an inference pursuant to Jones v Dunkel against a party which has not called evidence of a relevant matter; such an inference should be drawn where evidence otherwise provides a basis on which that inference may be drawn: RHG Mortgage Ltd v Ianni and Gaskell v Denkas Building Services Pty Limited followed; Held- the workplace injury was the main contributing factor to the aggravation of the pre-existing lumbar spine condition; the evidence does not provide sufficient basis for the drawing of an inference against the applicant surrounding the hospital records in circumstances where he is taken as a witness of truth and other evidence surrounding the circumstances of the fall and the nature of the medication he was taking support his version of events; matter remitted to the Registrar for referral to an Approved Medical Specialist to determine the permanent impairment arising from both the right lower extremity and lumbar spine injuries.

Decision date: 12 February 2021 | Member: Arbitrator Cameron Burge

Applicant was retained to work for an hourly rate and respondent said that it paid his invoices on behalf of another company; directions for production and summons to appear not answered; Browne v Dunn and NSW Police Force v Winter applied; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3), Gerob Investments Ballina Pty Limited t/as Beach Life Homes v Compton and Mason v Dimasi considered. Held – applicant was a worker employed by uninsured respondent; awards for weekly compensation and section 60 expenses; order to reimburse Nominal Insurer.

Decision date: 17 February 2021 | Member: Arbitrator Catherine McDonald

Claim for weekly payments of compensation and medical expenses for psychological injury; whether the applicant suffered a psychological injury at all or as a result of alleged bullying and harassment by work colleagues; whether there was any current work capacity under section 32A of the 1987 Act; Held- the applicant sustained psychological (disease) injury and the employment was the main contributing factor to that disease injury; applicant had no current work capacity for any relevant period and entitled to award of weekly compensation and for medical and the like expenses.

Decision date: 17 February 2021 | Member: Arbitrator Michael Perry

Calculation of applicant’s PIAWE; applicant asserted weekly cash payment more than double that claimed by employer; applicant timesheets and fingerprint attendance records and fellow workers’ statement all support applicant; Held- as a fact worker was working on average 64.5 hours per week at $35 per hour; award in favour of worker accordingly.

Decision date: 17 February 2021 | Member: Arbitrator Phillip Young

Medical Appeal decisions

Appellant suffered a work injury involving an aggravation of pre-existing pathology at L3/4 resulting in two surgical procedures; appellant alleged that radiculopathy did not have to be present at time of examination to justify a 3% uplift for “residual symptoms and radiculopathy” in Table 4.2 of the fourth edition guidelines; errors also alleged with respect to one-tenth deduction under section 323 and that the scar had been assessed at 0% because the AMS held it was “well-healed”; Held- Table 4.2 required the presence of radiculopathy at the time of the examination; this interpretation was consistent with the meaning of “residual” and read contextually with paragraph 4.37; Project Blue Sky Inc v Australian Broadcasting Authority applied; AMS did not err in finding one-tenth deduction as he held that the pre-existing pathology contributed to the need for surgery which caused the permanent impairment; AMS erred by giving insufficient reasons when describing the scar as “well-healed” and failing to address the matters in Table 14.1; El Masri v Woolworths Ltd applied; this error was corrected on the papers and the scar was assessed at 1% WPI; MAC revoked.

Decision date: 11 February 2021 | Panel Members: Arbitrator John Harris, Dr Drew Dixon and 
Dr Brian Noll | Body system: Lumbar spine and skin

Fresh evidence; whether further material admissible before Panel; whether assessment based on incorrect criteria; and whether demonstrable error on the face of the MAC in relation to failure to assess vestibular impairment; identification of correct AMA 5 Table for assessment of vestibular impairment; Held- further evidence excluded pursuant to section 328(3); appeal upheld in relation to failure of the AMS to assess vestibular impairment; MAC revoked; new MAC issued by the Panel; Lukasevic v Coates Hire Operations Pty Limited and Petrovic v BC Serv No 14 Pty Limited and Ors considered.

Decision date: 12 February 2021 | Panel Members: Arbitrator Ross Bell, Associate Professor Michael Fearnside and Dr Michael Davies| Body system: Cervical spine and vestibular impairment

Appeal from assessment of whole person impairment as a result of injury to the sacroiliac joint; whether error in assessing the left lower extremity by reference to fusion of the sacroiliac joint; whether error in assessing 0% whole person impairment (lumbar spine - pelvis); Held- MAC confirmed.

Decision date: 12 February 2021 | Panel Members: Arbitrator Richard Perrignon, Dr Phillipa Harvey- Sutton and Dr James Bodel | Body system: Left lower extremity, skin (scarring) and lumbar spine

Industrial deafness; employer claimed that low tone frequencies wrongly included; that AMS failed to give adequate reasons regarding the same; that AMS wrongly made no section 323 deduction for noise exposure in England up to 1981; Held- whilst the AMS had not given adequate reasons for including the low tones, such inclusion was warranted on the evidence; the AMS had not erred in his section 323 decision; Pereira v Siemans Ltd applied; MAC confirmed.

Decision date: 16 February 2021 | Panel Members: Arbitrator John Wynyard, Dr Robert Payten and Dr Joseph Scoppa | Body system: Hearing

Assessment of whole person impairment as a result of injury to both shoulders and left elbow; injury pleaded as aggravation, acceleration or deterioration of a disease; worker appeals from assessment of shoulders; employer appeals from assessment of left elbow; whether approved medical specialist erred in making a deduction for pre-existing condition of the shoulders; whether he misapplied paragraph 2.18 of the Guidelines in assessing the left elbow; Held- assessment of approved medical specialist set aside and replaced.

Decision date: 17 February 2021 | Panel Members: Arbitrator Richard Perrignon, Dr John Ashwell and Dr Tommasino Mastroianni | Body system: Right upper extremity and left upper extremity

Psychological Injury; appellant alleged error in the assessment by the AMS under the category in the Permanent Impairment Rating Scale of Concentration, Persistence and Pace; AMS did not make a demonstrable error nor did he assess on the basis of incorrect criteria; assessment of mild impairment for Concentration, Persistence and Pace based on clinical judgment of the AMS on the day of  examination and was open to the AMS; Panel cannot substitute own opinion absent error by the AMS; Held- MAC confirmed.

Decision date: 17 February 2021 | Panel Members: Arbitrator Jane Peacock, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological injury

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