Legal Bulletin No. 1

Issued 5 March 2021

Welcome to the first edition of the Personal Injury Commission’s Legal Bulletin. This edition focuses on Workers Compensation Division decisions, however the scope will expand in future to include Motor Accident Division decisions. We trust you find this update useful.

Decisions summarised below will be available on AustLII, Jade and LexisNexis.

Workers Compensation non-Presidential Member Decisions

Kernan v QF Cabin Crew Australia Pty Limited [2021] NSWWCC 51

Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act as a result of accepted injury to the right ankle and disputed consequential conditions of the left knee and lumbar spine; claim for general order for medical expenses pursuant to section 60 of the 1987 Act; Held- The applicant has sustained consequential conditions of her left knee and lumbar spine as a result of injury to her right ankle; the matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of injury to the applicant’s right lower extremity (right ankle); consequential conditions of the left lower extremity (left knee) and lumbar spine; and TEMSKI scarring; respondent is to pay the applicant’s medical expenses pursuant to section 60 of the 1987 Act.

Decision date: 18 February 2021 | Member: Arbitrator Kerry Haddock

Massouh v Prime Facility and Asset Management Pty Limited [2021] NSWWCC 52

Whether the worker sustained a work-related left inguinal hernia in the course of his employment with the respondent, rather than a left adductor longus tendonitis; whether the proposed left inguinal hernia surgical mesh repair is reasonably necessary treatment as a result of the injury sustained by the worker within the meaning of section 60 of the 1987 Act; Kennedy Cleaning Services Pty Ltd v Petkoska, Military Rehabilitation and Compensation Commission v May, Lyons v Master Builders Association of NSW Pty Ltd, North Coast Area Health Service v Felstead, Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd andDiab v NRMA Ltd considered and applied; Held- the proposed left inguinal hernia surgical mesh repair is reasonably necessary treatment as a result of the injury sustained by the worker within the meaning of section 60 of the 1987 Act; the respondent is to pay for the costs of and ancillary to the left inguinal hernia surgical mesh repair proposed at the gazetted rates.

Decision date: 18 February 2021 | Member: Arbitrator Anthony Scarcella

Nicholson v Woolworths Ltd [2021] NSWWCC 53

Claim for medical expenses in the form of right total knee arthroplasty surgery; worker claimed she had developed a consequential condition to her right knee as a result of an injury to her left knee on 20 January 2018 and ongoing restrictions leading to left knee arthroplasty surgery in February 2020; respondent said insufficient causal connection between left knee injury and development of right knee symptoms; Held – satisfied worker suffered a consequential condition to her right knee; satisfied recommended surgery to the right knee reasonably necessary as a result of the injury; award for the applicant on the claim for the right knee surgery.

Decision date: 18 February 2021 | Member: Arbitrator Nicholas Read

Paterson v J J L Transport Pty Limited & Others [2021] NSWWCC 54

Claim for medical expenses, namely cost of proposed rotator cuff repair surgery; applicant suffered injury in 2008 to left shoulder while working with first respondent which required rotator cuff repair; applicant returned to the workforce and alleged in 2018 he suffered an injury while working with the second respondent by way of aggravation of the pre-existing condition in his left shoulder; no issue that the proposed surgery is a medical necessity; issues are whether the applicant suffered an aggravation of his left shoulder condition while working with the second respondent; if the answer is in the affirmative, did the aggravation bring about the requirement for the proposed surgery, or is that requirement a result of the original injury, or both; and whether the proposed surgery is reasonably necessary as a result of a workplace injury; Held- the applicant suffered an aggravation of his left shoulder condition in the course of his employment with the second respondent, to which that employment was the main contributing factor; the aggravation suffered in the course of employment with the second respondent has given rise to the need for the proposed surgery; the proposed surgery is reasonably necessary as a result of the injury suffered in the employ of the second respondent; the second respondent is to pay the costs of and incidental to the proposed left shoulder surgery.

Decision date: 19 February 2021 | Member: Arbitrator Cameron Burge

Sheehan v Australian Red Cross Blood Service [2021] NSWWCC 55

Accepted psychological injury; issue in dispute was the correct date of injury for the purposes of referral to an AMS for assessment of WPI; the applicant claimed the date should be the date of the claim, and that the injury was a disease; respondent argued a frank injury, or if not, and a disease, then it was not the last relevant employer; Stone v Stannard Bros Launch Services Pty Ltd and Alto Ford v Antaw discussed. Held- that the injury was “a work-related unmasking of an underlying diathesis to panic disorder…”; was not a ‘disease’ within the meaning of the 1987 Act; the correct date of injury for the purposes of referral was 7 July 2015.

Decision date: 22 February 2021 | Member: Arbitrator Deborah Moore

Coombs v Baptistcare NSW & ACT [2021] NSWWCC 57

Claim for weekly benefits and medical and related treatment expenses, including cost of bilateral carpal tunnel surgical release; the respondent denied the applicant sustained work-related injury in the nature of bilateral carpal tunnel syndrome but conceded the recommended bilateral carpal tunnel release was reasonably necessary treatment for the injury the applicant had sustained in the nature of bilateral carpal tunnel syndrome;  Held – the applicant sustained injury in the nature of an aggravation, acceleration, exacerbation or deterioration of her bilateral carpal tunnel syndrome with a deemed date of injury of 4 May 2020; the applicant’s employment with the respondent was the main contributing factor to injury; the applicant has entitlement to weekly benefits payable under section 36(1)(a) and section 37(1)(a) of the 1987 Act from 13 May 2020 ongoing, and the applicant has entitlement to expenses payable under section 59 and section 60 of the 1987 Act resulting from her injury, including the cost of the proposed bilateral carpal tunnel release.

Decision date: 23 February 2021 | Member: Arbitrator Jacqueline Snell

Sloane v Tippings Transport Pty Limited [2021] NSWWCC 58

Claim for permanent impairment compensation; whether applicant suffered injury to the cervical spine and right knee in incident which led to accepted injury in other body parts; Held- the applicant suffered a frank injury to his cervical spine in the incident at issue; Castro v State Transit Authority discussed; the applicant suffered injury to his right lower extremity (knee) in the incident at issue; matter remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment.

Decision date: 23 February 2021 | Member: Arbitrator Cameron Burge

Sloane v St Ignatius College Riverview [2021] NSWWCC 59

Section 289A(4) of the 1998 Act; worker suffered a back injury requiring two surgical procedures; after returning to work with a different employer he suffered a recurrence and required further surgery; respondent’s insurer failed to deal with the request and insurer of subsequent employer paid for surgery; insurer did not issue section 78 notice in respect of permanent impairment claim but sought to rely on a notice and a medical report served after proceedings commenced; medical report not admitted; Paric v John Holland (Constructions) and Hancock v East Coast Timber Products considered; Held- not in the interests of justice that employer be permitted to rely on section 78 notice; referred to AMS.

Decision date: 23 February 2021 | Member: Arbitrator Catherine McDonald

Krstanoski v Bluescope Steel Limited [2021] NSWWCC 60

Reconsideration application by respondent;  certificate of determination found pleaded 2016 injury and pathology established then a consequential left shoulder condition so that 2 left shoulder pathologies (rotator cuff) should be aggregated for AMS referral; surgery partly due to 2 pathologies and partly a non-pleaded pathology; neck condition consequential to surgery; Held-reconsideration application fails.

Decision date: 24 February 2021 | Member: Arbitrator Philip Young

Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWWCC 61

Application for weekly compensation, medical expenses and lump compensation in respect of disputed cervical and lumbar spine injury; alleged consequential gastrointestinal condition also disputed; unrepresented worker; substantial delay in reporting cervical and lumbar symptoms; symptoms in right upper extremity reported during employment later attributed on further investigation to cervical spine condition; applicable deemed date of injury; Held –the applicant sustained injury to cervical spine and consequential gastrointestinal condition; applicant has not discharged onus in relation to alleged lumbar spine injury; deemed date of injury in the circumstances of this case is date of first incapacity; matter remitted to Approved Medical Specialist to assess degree of permanent impairment; consideration of claim for weekly compensation deferred.

Decision date: 24 February 2021 | Member: Arbitrator Rachel Homan

Mani v Australian Pharmaceutical Industries Ltd [2021] NSWWCC 63

Dispute as to whether the applicant could be assessed by an AMS as to whether the degree of permanent impairment is more than 20% for the purposes of section 39 of the 1987 Act; the applicant was an existing recipient and was assessed in 2016 for lump sum compensation in accordance with clause 11 of Schedule 8 of the 2016 Regulation; an AMS in 2018 and 2019 determined that the applicant’s permanent impairment was not fully ascertainable; in 2020, an AMS assessed that the applicant’s impairment was fully ascertainable; the insurer ceased payments pursuant to section 39 of the 1987 Act because its IME assessed 20% whole person impairment; Merchant v Shoalhaven City Council, Ali v Access Quality Services and Matilda Cruises Pty Ltd v Sweeny discussed and distinguished; Held- applicant entitled to one further assessment of the degree of permanent impairment by an AMS in accordance with Part 2A of Schedule 8 of the 2016 Regulation.

Decision date: 24 February 2021 | Member: Senior Arbitrator Glenn Capel

Workers Compensation Medical Appeal Panel Decisions

State of New South Wales v Calvert [2020] NSWWCCMA 187

Respondent previously worked in noisy employment in South Africa for 30 years and in noisy employment in New South Wales for last 20 years; AMS assessed respondent and deducted 1/10^th pursuant to section 323(2) of the 1998 Act; appellant argued that prior employment was a “non-covered loss” and should not be included in any assessment of the extent of the degree of permanent impairment; Held - appellant’s submissions inconsistent with common law principles of causation and section 68B(4) of the 1987 Act; Secretary v Department of Education applied; assessment based on section 323(2) was reassessed as the respondent conceded that the AMS had engaged in an impermissible exercise of making assumptions and had otherwise applied an incorrect onus based on “scientific exactness” rather than on the balance of probabilities; on reassessment the Panel declined to accept the appellant’s contention that the liner method was appropriate based on the facts of the case that there was only minor loss of hearing by 1982; the Panel otherwise applied the statutory one-tenth deduction pursuant to section 323(2) of the 1998 Act; the appellant’s submission that the extent of the section 323 deduction was not a matter conclusively presumed to be correct within the meaning of section 326 was inconsistent with the observations in Vannini v Worldwide Demolitions Pty Ltd; Held - Appeal dismissed.

Decision date: 15 December 2020 | Panel Members: Arbitrator John Harris, Dr Henley Harrison and Dr Joseph Scoppa | Body system: Hearing loss

St Marys Rugby League Club Ltd v Reardon [2021] NSWWCCMA 35

The appellant claimed the AMS erred in the application of an uplift for the impact on activities of daily living; the AMS added 2%; the worker had undergone surgery and although had returned to some sporting activities, he still had difficulties with some of the activities set out in the Guidelines such as household tasks or personal care; Held- the Panel accepted that there was ample evidence, both lay and medical, to conclude that the impact on the respondent’s ADL’s is as assessed by the AMS; MAC confirmed.

Decision date: 18 February 2021 | Panel Members: Arbitrator Deborah Moore, Dr John Garvey and Dr Ross Mellick | Body system: Lumbar spine

Carney v Pacific National (NSW) Pty Ltd [2021] NSWWCCMA 36

Assessment of industrial deafness claim; appellant worker alleged assessment made on basis of incorrect criteria and demonstrable error in respect of referring to the right ear as the better ear, the exclusion of hearing loss below 2000 Hz and the assessment of tinnitus as not being severe; Held- appellant worker was exposed to loud noise over a period of 43 years; the AMS, based on his audiogram, erred in finding that the better ear was the right ear for the purpose of the assessment; extent of exposure was sufficient to give rise to hearing loss at the frequencies below 2000 Hz; agreed that the tinnitus was not severe; Panel agreed appropriate assessment was 11% WPI after making a deduction for compensation previously paid; MAC revoked.

Decision date: 18 February 2021 | Panel Members: Arbitrator Carolyn Rimmer, Dr Robert Payten and Dr Joseph Scoppa | Body system: Hearing loss

Field v EB Manufacturing Industries Group [2021] NSWWCCMA 37

Injury to left hip and lumbar spine on 6 August 2015; AMS assessed 7% for the lumbar spine and 8% WPI of the left lower extremity resulting in a total assessment of 14% WPI; whether the AMS fell into error or made assessment on the basis of incorrect criteria in not assessing gait in circumstances where the appellant’s IME made an assessment for chronic trochanteric bursitis with abnormal rhythm of gait; AMS erred in reporting that to the best of his knowledge no doctor reported bursitis; appellant failed to consider Table 17-2 of AMA 5 which indicates that impairment from a Range Of Motion assessment cannot be combined with the impairment from Diagnosis Based Estimates assessment; Held- Panel made same assessment of WPI as that made by the AMS and MAC confirmed as the review has not led to a different result and should not be interfered with; Robinson v Riley applied.

Decision date: 23 February 2021 | Panel Members: Arbitrator Carolyn Rimmer, Dr Margaret Gibson and Dr John Brian Stephenson | Body system: Lumbar spine and left lower extremity (hip)

McGrath v State of New South Wales (Hunter New England Local Health District) [2021] NSWWCCMA 38

Appeal by worker against AMS decision on grounds of assessment being made on the basis of incorrect criteria and that the MAC contains a demonstrable error; psychological injury; the appellant asserted that the AMS was incorrect in his classification in respect of employability, and social and recreational activities; the appellant submitted that the Appeal Panel should have regard to the concept of incapacity as found in section 33 of the 1987 Act in determining whether she should be placed in Class 4 or 5 for employability; the AMS and two IMEs determined Class 4 (“Severe impairment”) was the correct classification; the appellant’s submissions, relying on cases such as Moran Health Care Services v Woods CA, Lawarra Nominees Pty Ltd v Woods and Arnott’s Snack Products Pty Ltd v Yacob were rejected; Appeal Panel determined no error in placing the appellant worker in Class 4 for employability; the appellant submitted that the AMS erred by placing her in Class 2 for social and recreational activities, relying inter alia on the Court of Appeal decision in Ballas v Department of Education; Held- on examination of the evidence and the history recorded by, and findings of the AMS, the Appeal Panel determined no error on the part of the AMS; MAC confirmed.

Decision date: 23 February 2021 | Panel Members: Arbitrator Brett Batchelor, Professor Nicholas Glozier and Dr Doug Andrews | Body system: Psychiatric/psychological disorder

Flavorjen Pty Limited v Yates [2021] NSWWCCMA 39

Appellant employer alleged that the assessment of the AMS was made on the basis of incorrect criteria and that the MAC contains a demonstrable error as per section 327(3)(c) & (d) of the 1998 Act; the appellant submitted that the AMS had assessed matters that were outside the agreed terms of referral of the matter to him; the respondent worker submitted that the AMS assessed the body parts/systems that were the subject of the worker’s claim in the Application to Resolve a Dispute lodged commencing the proceedings, and that the assessment of the AMS was “with respect to” those body parts/systems; Held- finding by the Appeal Panel that the AMS had assessed matters that were not referred to him for assessment; MAC revoked and new MAC issued.

Decision date: 23 February 2021 | Panel Members: Arbitrator Brett Batchelor, Dr Mark Burns and
Dr Drew Dixon | Body system: Cervical spine, Chronic Regional Pain Syndrome (right arm), left upper extremity (shoulder)

Kennewell v ISS Facility Services Australia Limited t/as Sontic Pty Ltd [2021] NSWWCCMA 40

Whether deterioration of condition resulting in increase in the degree of permanent impairment; whether additional relevant information should be admitted; Held- grounds of appeal made out in relation to deterioration of condition; additional material admitted; re-examination of worker; MAC revoked and new MAC issued by the Panel.

Decision date: 24 February 2021 | Panel Members: Arbitrator Ross Bell, Dr James Bodel and
Dr Mark Burns | Body system: Right upper extremity

Nambucca Heads Bowling & Recreation Club Limited v Pollard [2021] NSWWCCMA 41

Psychiatric claim; employer found to be caviling with the AMS’s classification in social and recreational activities and social functioning; Ferguson v State of New South Wales and Ballas v Department of Education discussed; Held- appeal dismissed and MAC confirmed.

Decision date: 24 February 2021 | Panel Members: Arbitrator John Wynyard, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychiatric/psychological disorder

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