Find a decision

Worker suffered injury to the left leg and various consequential conditions including injury to the lumbar spine and upper digestive tract; prior assessment of 7% WPI for the left leg; AMS found 7% WPI for the lumbar spine and 0% for the upper digestive tract Held - findings made by AMS clear; no errors made with respect to radiculopathy; AMS made inconsistent findings with respect to cause of consequential condition contrary to findings of Arbitrator; State of New South Wales v Bishop applied; gastropathy established objective signs of gastritis and duodenitis; worker had intermittent reflux related to gastritis; worker assessed at 2% WPI for upper digestive tract with a one-half deduction pursuant to section 323 due to prior laparotomy surgery affecting the condition; MAC revoked; observations that AP could not combine with previous MAC relating to left leg as that body part was not referred. 

Issue for determination; whether a Stryde intramedullary lengthening nail to be used in the right leg lengthening surgical procedure proposed by Dr Tim O’Carrigan, Orthopaedic Surgeon, is an “artificial aid” within the meaning of section 59A(6)(a) of the 1987 Act; consideration of the decision in Pacific National Pty Limited v Baldacchino; Held – firstly, the Stryde intramedullary lengthening nail to be used in the proposed right leg lengthening surgical procedure is an “artificial aid” within the meaning of section 59A(6)(a) of the 1987 Act; secondly, the respondent pay for the costs of and ancillary to the right leg lengthening surgical procedure. 

Dispute as to whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; section 11A of the 1987 Act; worker allegedly told about a disciplinary meeting, but he understood meeting was arranged discuss grievances; respondent conceded that written notice of meeting not sent to worker; contemporaneous text messages, emails and correspondence substantiated applicant’s evidence; evidence of respondent’s lay witnesses unreliable; medical evidence showed psychological issues prior to meeting; respondent’s doctor relied on incorrect history; Pirie v Franklins Ltd, Department of Education & Training v Sinclair, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, St George Leagues Club Ltd v Wretowska, Northern NSW Local Health Network v Heggie, Kushwaha v Queanbeyan City Council and ISS Property Services Pty Ltd v Milovanovic discussed and applied. Held - respondent’s actions not reasonable; worker had no current work capacity and entitled to weekly compensation and medical expenses. 

Appellant worker claimed demonstrable error in MAC pursuant to 327(3)(d) of the 1998 Act; alleged failure to properly examine the cervical, thoracic and lumbar spine, and to refer to and record findings;  alleged failure to refer to the appellant’s qualified expert’s report, and his findings on examination; appeal Panel finds that the AMS did properly examine cervical, thoracic and lumbar spine, and record his findings which resulted in the correct assessment of 0% WPI in respect of these body parts; notwithstanding the fact that the AMS did not refer to the report of the appellant’s qualified expert (and not refer to the respondent’s qualified expert);  no demonstrable error shown; Held - MAC confirmed. 

Claim for left total knee replacement surgery from work-related injury in 2016; Held – award for the respondent based upon the evidence presently before the Commission as no doctor proposes that the surgery be undertaken at the present time. 

Grounds of appeal based on unproven factual assumptions alleged in appellant’s submission; further grounds based on mis-reading of AMS readings; Held - appeal rejected. 

Dispute in respect of a work journey caused by fatigue; section 10(3A) of the 1987 Act; the deceased apprentice worked normal hours with early start and finish times; lay and expert evidence supported and challenged the existence of work related fatigue; Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden, Mitchell v Newcastle Permanent Building Society Ltd, Bina v ISS Property Services Pty Ltd, State Super Financial Services Australia Limited v McCoy, Field v Department of Education and Communities and Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) discussed and applied; Held - there was a real and substantial connection between the deceased’s employment and the motor vehicle accident; direction made for written submissions on dependency and apportionment. 

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

Section 9AA(3) of the 1987 Act whether employment connected with NSW; section 9AA(3)(c) respondent’s principal place of business in Australia; whether sufficient evidence to establish place of business in NSW; nature of business conducted; principal out of Australia 50% of time; Held - employment connected to NSW; respondent’s principal place of business in Australia in NSW; Martin v R J Hibbens Pty Ltd; Workers Compensation Nominal Insurer v O’Donohue; Tamboritha Consultants Pty Ltd v Knight considered.

significant functional component, worker given benefit of doubt, no clear history of shoulder injury as required by guides, hence no wpi MAC revoked