Legal Bulletin No. 12
Issued 20 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.
Whether the Arbitrator was correct to find that actions of the appellant which caused psychiatric/psychological injury to the respondent were not reasonable within the meaning of s 11A of the Workers Compensation Act 1987.
Decision date: 9 September 2019 | Member: Acting Deputy President Larry King SC
Construction of s 38A of the Workers Compensation Act 1987, “determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision”: Hee v State Transit Authority of New South Wales  NSWCA 175 applied; RSM Building Services Pty Limited v Hochbaum  NSWWCCPD 15 distinguished.
Decision date: 10 September 2019 | Member: Acting Deputy President Geoffrey Parker SC
Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd t/as Lachley Meats v Merritt  NSWWCCPD 49
Construction of s 39 of the Workers Compensation Act 1987; RSM Building Services Pty Ltd v Hochbaum  NSWWCCPD 15; Technical and Further Education Commission t/as TAFE NSW v Whitton  NSWWCCPD 27.
Decision date: 12 September 2019 | Member: President Judge Phillips
Worker claimed to have sustained injury to the cervical spine when he slipped over in cool room; worker’s entitlement to permanent impairment compensation (s 66) and medical expenses (s 60) in dispute; Mason v Demasi and Winter v New South Wales Police Force discussed in relation to the dangers in relying on clinical notes; Arbitrator noted the WorkCover certificate issued by the worker’s GP first attributed the cervical spine condition to a fall in a cool room almost two years after the alleged fall; Arbitrator not satisfied on the balance of probabilities that the worker injured his cervical spine due to the failure to describe the incident to his treating practitioners; Award for the respondent.
Decision date: 5 August 2019 | Member: Arbitrator Rachel Homan
Injury to the left shoulder; whether proposed surgery is reasonably necessary pursuant to s 60 of the 1987 Act; whether estoppel 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 among 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.
Decision date: 9 August 2019 | Member: Arbitrator Elizabeth Beilby
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.
Decision date: 10 September 2019 | Member: Arbitrator Paul Sweeney
Claim for weekly payments and medical and associated expenses pursuant s 60 of the 1987 Act; whether the worker’s condition was caused by “reasonable action” taken by the respondent in the form of a letter in respect of performance appraisal; worker’s IME opined that the worker’s assault by a client under her care, and a pattern of bullying behaviour was highly relevant to the onset of the psychological condition; Insurance Australia Group Services Pty Limited v Outram and Ivanisevic v Laudet Pty Ltd discussed; Arbitrator satisfied that there were a considerable number of incidents which occurred apart from the letter of 11 July 2018 which required the worker to seek medical treatment before 11 July 2018; Held – employer’s section 11A defence fails.
Decision date: 10 September 2019 | Member: Arbitrator Philip Young
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.
Decision date: 11 September 2019 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
Injury to the lumbar spine sustained when the worker lifted a heavy bag; employer submitted that the AMS made a demonstrable error in his failure to make a deduction in accordance with s 323 of the 1998 Act; Cole, Vitaz, and Ryder discussed; Appeal Panel noted that respondent failed to disclose prior back injury to AMS; Appeal Panel noted that CT scan taken shortly after the subject injury reported degenerative changes; Panel satisfied that a one-tenth deduction is warranted; new MAC issued.
Decision date: 5 September 2019 | Panel: Arbitrator Glenn Capel, Dr Roger Pillemer and Dr Mark Burns | Body system: lumbar spine
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.
Decision date: 11 September 2019 | Panel: Arbitrator John Wynyard, Dr David Crocker and Dr Brian Noll | Body system: right lower extremity, left lower extremity and scarring (TEMSKI)