Find a decision

Injury to the right lower extremity, left lower extremity and scarring (TEMSKI); incorrect criteria and demonstrable error;  alleged the AMS fell into error when making deductions pursuant to s 323 of the 1998 Act; failure to comply with direction regarding absent statement; principles in Cullen discussed; El Cheikh, Cole and Vitaz discussed; Bindah applied in relation to causation; all medical opinions identified significant degenerative change in the form of arthritis; Appeal Panel satisfied that the deductions made are appropriate notwithstanding that the appellant was asymptomatic prior to her injury; MAC confirmed. 

Injury to the left shoulder; whether proposed surgery is reasonably necessary pursuant to s 60 of the 1987 Act; whether estopple applies; whether s 59A of the 1987 Act applies; Bartolo, Diab and Rose applied in relation to s 60 of the 1987 Act; Arbitrator noted that there is a general consensus amongst treating physicians that surgery is reasonably necessary; Arbitrator noted that the worker previously commenced proceedings against the presently named respondent in which weekly benefits were paid; principles in Seaib v Hayes Personnel Services (Australia) Pty Ltd discussed; Arbitrator satisfied that the worker is not estopped as there has been a deterioration in the shoulder condition; no submissions made by the worker in respect of the limitation provided under s 59A; Held – proposed surgery is reasonably necessary. 

Worker alleged injury to the neck as a result of an assault by a colleague; injury disputed by respondent; worker made claim for lump sum compensation pursuant to s 66 of the 1987 Act; Daw v Toyworld considered; Arbitrator noted that the evidence from treating practitioners  not consistent with the worker’s IME hypothesis that the applicant suffered an exacerbation of a cervical cord lesion; Ho v Powell discussed in relation to establishing proof on the balance of probabilities; Arbitrator not satisfied that the worker suffered an injury to his neck or an exacerbation of a cervical spine lesion.

Worker sustained injury to the left wrist and consequential condition to the right shoulder; Claim for lump-sum compensation and weekly benefits; consequential injury to the shoulder in dispute; whether res judicata, issue estoppel or Anshun estoppel apply; whether referral to an AMS is barred by virtue of the operation of s 66(1A) of the 1987 Act; reference to Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine in relation to the issue of estoppel; Giliana v Souvenir World (Airport) Pty Ltd discussed in relation s 66(1A); Arbitrator noted that s 66(1A) does not apply as there had been no finding as to the level of impairment to the applicant’s left wrist; Held -  worker suffered a consequential injury to the right upper shoulder; matter referred to an AMS.

Worker sustained injury to the left shoulder and cervical spine in her employment as a machinist with the respondent; deemed date of injury alleged on 10 July 2014; worker assessed by Dr Neil Berry, AMS, who assessed the worker to suffer from a 9% WPI;  the worker lodged an appeal against the MAC pursuant to s 327(3) of the WIM Act on the basis that the MAC contained a demonstrable error and was made on incorrect criteria; worker submitted that the AMS wrongly assessed her left shoulder internal rotation under the wrong figure of AMA 5; worker submitted that figure 16-46 of AMA 5 was the correct guide; worker further submitted that the AMS fell into error in applying Clause 2.20 of the Guidelines as the right shoulder was not “normal/uninjured” and therefore did not represent an appropriate baseline; Appeal allowed; Appeal Panel accepted the worker’s submission that it was not open on the evidence before the AMS that the right shoulder was normal and therefore appropriate to be used as a baseline in accordance with Clause 2.20 of the Guidelines; both the employer’ s IME and the AMS measured a reduced range of motion in the right shoulder;  Appeal Panel satisfied that the AMS fell into error in accepting the right shoulder as normal in the light of the consistent history given to treating doctors of pain in the right shoulder; Held – new MAC issued. 

Injury to the lumbar spine and scarring; injury sustained when the appellant worker missed his step alighting from a cab of a trip truck; appellant submitted that the AMS fell into error in making a nil deduction and failing to make any deduction pursuant to s 323 of the 1998 Act; appellant also submitted that the AMS incorrectly applied the Guides in his assessment of the lumbar spine and the failure of the AMS to assess peripheral nerve disorders; Appeal Panel confirmed that a re-examination of the worker was required in order to assess scarring; Appeal Panel confirmed that a deduction of 1/10th be appropriate due to the presence of advanced osteoarthritis; table 14.1 of the Guidelines applied; Appeal Panel satisfied that the AMS was correct in his assessment of scarring; Appeal Panel satisfied that the AMS correctly applied the chapter 4.34 Guidelines; Appeal Panel noted that there were no other clinical signs  of radiculopathy and thus the AMS was not correct to apply the modifier at Table 4.2 of the Guidelines; Drosd applied; Appeal Panel does not have power to correct obvious errors in circumstances where MAC confirmed; MAC confirmed.

Admissibility of additional evidence or late evidence. Panel did not allow surveillance evidence

AMS makes deduction pursuant to s323 due to findings of a MAC in a prior matter. Panel determines AMS to make an assessment based on the findings on the day of examination and not make a deduction for previous awards. MAC revoked

AMS assessed 0% wpi in relation to sexual impairment, no loss of bulbo cavernosus reflex, ADL's correct at 1% MAC confirmed

s328(3) fresh evidence, MRI conducted after AMS examination not allowed due to prejudice to Respondent, 0% correct for lumbar spine and right lower extremity. MAC revoked as assessment made by scarring contrary to referral