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1. WORKERS COMPENSATION COMMISSION. CERTIFICATE OF DETERMINATION. Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998. Matter Number: 3572/20 Applicant: Yantian Ye Respondent: State of New South

Claim for section 66 lump sum compensation and section 60 medical expenses under the 1987 Act; the respondent accepts that the applicant suffered an injury to her right shoulder in the incident on 24 February 2015 but denies worker suffered injury to cervical or lumbar spine;  respondent further denies liability for the injury to the right shoulder on the basis that she recovered from the effects of the incident on 24 February 2015; Held - Kooragang Cement Pty Ltd v Bates applied; Diab v NRMA Ltd considered; award for respondent in respect of the claim of injury to the lumbar spine; award for worker in respect of consequential condition to the left shoulder as a consequence of the right shoulder injury on 24 February 2015; award for worker in respect of injury to the cervical spine and lumbar spine arising from the nature and conditions of her employment; proposed to the cervical spine considered reasonably necessary. 

Worker claimed benefits as result of injury alleged to have occurred in the course of her employment as a nurse due to a patient suddenly taking hold of her and dragging on her; claim form and history provided to treating general practitioner and independent medical expert for the respondent described onset of low back pain while writing up notes; worker’s case confined to frank injury; consideration of conflicting evidence; Held –  on balance the evidence did not establish reasonable satisfaction that the worker had suffered a frank injury in the manner relied upon in the proceedings; Briginshaw v Briginshaw, Nguyen v Cosmopolitan Homes applied.

Appeal against 13% WPI in psychological injury case: assessment of PIRS categories challenged; worker’s submissions unsupported by evidence; assumption by worker that descriptors were criteria; Ferguson considered; concentration, persistence and pace category raised as rating incongruous with employment finding;  Held – Drosd applied and travel rating lowered on factual analysis: section 323 deduction of 3/10 based on pre-existing bipolar condition and personality disorder confirmed. MAC revoked accordingly, but result the same. 

Computer technician employed to provide on-site technical services to various clients of a third party, Unisys; injury suffered in a motor vehicle accident when returning from an assignment at Matraville; worker’s claim disputed on the basis that the worker was injured while travelling to his home and there was no connection with the employment; claim for weekly payments and a declaration that proposed lumbar surgery constituted reasonably necessary treatment resulting from low back injury suffered in the motor vehicle accident; issue of fact as to whether the worker was driving directly to his home or was intending to travel to Unisys site to deliver USB keys; accident site common to both routes; Held – worker was in the course of employment at the time of the accident, following Whittingham v Commissioner of Railways (WA), Hatzimanolis v ANI Corporation Ltd, Comcare v PVYW, Da Ros v Qantas Airways Ltd; back and neck injuries causing substantial incapacity; capacity limited to 2 hours training work per week; entitlement to weekly payments established; need for surgery not established on the evidence; treating neurosurgeon stated that he wished to perform L5/S1 laminectomy, discectomy and posterior lumbar interbody fusion but did not explain the purpose of that surgery or its likely effect; consideration of Diab v NRMA Ltd, Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timber Products Pty Ltd. 

Assessment of permanent impairment from psychiatric injury; employer appealed contending AMS erred with respect to assessment of worker’s impairment in self-care and personal hygiene and in concentration, persistence and pace; employer submitted AMS’s assessment not supported by AMS’s clinical findings or by the other evidence; Held - Appeal Panel found assessment supported by AMS’s findings and AMS was entitled to give pre-eminence to his findings; MAC confirmed. 

Worker claimed weekly benefits; dispute as to whether s44 D (2) of the 1987 Act applied to the worker in circumstances where there was no agreement as to her hours of work following a return from maternity leave. Respondent is refused leave to dispute the issue of current work capacity. 

Work capacity dispute; suitable employment per s 32A; whether worker had current work capacity; all medical evidence suggested some current work capacity; worker unable to find roles and suggested there was no suitable employment based on his age, skills and experience; held that worker had current work capacity and was capable of work in suitable employment; interim payment direction declined.  

Applicant was a chef who suffered an accepted neck and back injury. Work capacity decision issued by insurer as to suitable work as either a pathology courier or sales representative. It was accepted that the applicant was unfit for his pre-injury duties.  Held: The worker had limited transferable skills and no retraining: Broadspectrum Pty v Skiadis applied. The applciant’s physical incapacity, reflected by recent certificates which were accepted by the respondent, meant that suggested jobs were unsuitable. No other employment jobs suggested as being suitable. Orders made on basis that applicant had no current work capacity.

Worker was appointed the NSW State Coach of the employer with the potential to be appointed as the national manager; employer’s head office was in Queensland where it held its workers compensation insurance; worker suffered injury and was paid compensation payments by the Nominal Insurer under the NSW legislation; during the period of employment, the workers duties were exclusively in NSW apart from one week of training in WA and three management meetings in Qld; worker ‘s duties were expanded during the employment to include supervision over one studio in WA and in charge of recruitment throughout the country; the further duties were undertaken exclusively from NSW; Held –  submission that the intention of the parties that the worker would be promoted to national manger rejected as being speculative and based on the employer being satisfied as to the worker’s performance; the employment in NSW was not a temporary arrangement was defined by section 9AA(6) of the 1987 Act; Klemke v Grenfell Commodities Pty Ltd applied; the state of connection was NSW under section 9AA(3)(a) where the worker usually works and/or under section 9AA(3)(b) where the worker was usually based; orders made that the section 145 notice issued by the Nominal Insurer was valid.