Legal Bulletin No. 10
Issued 6 September 2019
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.
Section 11A(1) of the Workers Compensation Act 1987 – consideration of whether injury predominantly caused by reasonable action taken by the employer with respect to performance appraisal or transfer; Irwin v Director General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported) applied; adequacy of reasons – Pollard v RRR Corporation Pty Ltd  NSWCA 110; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)  HCA 3; 160 ALR 588; 73 ALJR 306 considered and applied; causation – ISS Property Services Pty Ltd v Milovanovic  NSWWCCPD 27; error where there is a demonstrable misunderstanding of relevant evidence Montgomery v Lanarkshire Health Board  UKSC 11 applied.
Decision date: 23 August 2019 | Member: Deputy President Elizabeth Wood
TT Brookvale Pty Ltd t/as Total Tools Brookvale v Workers Compensation Nominal Insurer and Gregory Sullivan  NSWWCC 281
Injury to the back in dispute together with claim for medical expenses and related treatment pursuant to s 60 of the 1987 Act; Amount payable to the Nominal Insurer in dispute; Section 9A(2) of the 1987 Act discussed; Arbitrator satisfied that the applicant’s employment with the respondent was a substantial contributing factor to the worker’s back injury; Section 145(5) of the 1987 Act discussed; Arbitrator held that the employer was liable to pay worker compensation specified in section 145 notice; Held - worker suffered an aggravation of pre-existing disc degenerative changes in the lumbosacral spine; Arbitrator also held employer liable to pay the worker’s expenses pursuant to s 60 of the 1987 Act.
Decision date: 26 August 2019 | Member: Arbitrator Brett Batchelor
Psychological injury; injury sustained due to the nature and conditions of employment; whether surveillance footage taken by the respondent should be forwarded to AMS; respondent submitted that the surveillance report predated the respondent’s IME report; Erskine, Koutsomihalis and Yacoub discussed in relation to “exceptional circumstances”; rule 16.2(12) of the Workers Compensation Commission Rules discussed; Arbitrator held surveillance reports to be included in the referral to the AMS.
Decision date: 27 August 2019 | Member: Arbitrator Cameron Burge
Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) with persisting Fibromyalgia; self-represented litigant; claim for medical and related treatment expenses in dispute; Bielecki, Bartolo and Diab applied in relation to s 60 of the 1987 Act; significant claim for s 60 medical expenses including inter alia cardiac investigations, pathology tests, invitro fertilization treatment, vitamin supplements, weight loss programme, optometrist services, SPECT scan, toll fees, travel costs, gastroenterological investigations and blood tests reasonably necessary; Held - respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60 of the 1987 Act.
Decision date: 28 August 2019 | Member: Arbitrator Grahame Edwards
Physical and psychological injuries; worker suffered a left arm injury reaching into a machine; whether he also suffered a psychological injury; incapacity in dispute; definition of suitable employment in s 32A of 1987 Act discussed; worker’s medical evidence was that, as a result of a lack of appropriate treatment, worker had developed chronic pain behaviour and had stopped using his left arm; arbitrator satisfied that left arm injury had led to the development of a psychological disorder and that worker was totally incapacitated. Held: respondent to pay weekly compensation in respect of total incapacity and medical and related expenses.
Decision date: 28 August 2019 | Member: Arbitrator Catherine McDonald
Medical Appeal decisions
Injury to the lumbar spine and scarring; injury sustained when the appellant worker missed 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.
Decision date: 22 August 2019 | Panel: Arbitrator John Wynyard, Dr Drew Dixon and Dr Brian Noll | Body system: lumbar spine and scarring (TEMSKI)
Psychological Injury; appellant worker submitted that AMS erred in failing to take sufficient account of evidence and failing to provide a proper diagnosis; Appeal Panel noted that there was inadequate consideration of the evidence which differed considerably from the history taken by the AMS; Parker and Walk discussed; Appeal Panel noted that the worker struggled with attention and short term memory; Appeal Panel re-allocated the worker at Class 3 for Concentration, persistence and pace; Appeal Panel noted that the worker no longer exercises or plays instruments; Appeal Panel re-allocated the worker as class 3 for social and recreational activities; new MAC issued.
Decision date: 23 August 2019 | Panel: Arbitrator Ross Bell, Dr Julian Parmegiani and Dr Michael Hong | Body System: Psychological Injury
Psychological Injury; availability of additional relevant information; appellant submitted that AMS fell into error when making a deduction pursuant to section 323 of the 1998 Act; Lukacevic discussed in relation to section 328(3) of the 1998 Act; Appeal Panel confirmed appellant provided no evidence as to why surveillance report could not have been obtained prior to commencement of proceedings; Cole, Ryder and Cullen discussed; Appeal Panel satisfied that there was no prior evidence of worker being in a destressed state; Appeal Panel also satisfied that worker had not identified evidence to undermine the assumptions upon which the AMS has formed his views in relation to the assessment of PIRS categories; Held – MAC confirmed.
Decision date: 27 August 2019 | Panel: Arbitrator Gerard Egan, Dr Julian Parmegiani and Dr Douglas Andrews | Body System: Psychological Injury
Visual System; injury sustained as a consequence of fellow employee using a drill to grind valves of gas tank causing an explosion; worker suffered burns to several parts of his body including his left eye; the appellant submitted that AMS fell into error by assessing impairment of both his eyes when the worker did not injure his right eye; Appeal Panel satisfied that AMS adopted the correct approach to make a deduction for the extent to which the worker’s pre-existing condition contributed to his permanent impairment; MAC confirmed.
Decision date: 27 August 2019 | Panel: Arbitrator Marshall Douglas, Dr Ian Weschler and Dr Michael Delaney | Body System: Psychological Injury