Legal Bulletin No. 13
Issued 27 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 – whether the injury was wholly or predominantly caused by reasonable action taken by the employer in respect of discipline; Kushwaha v Queanbeyan City Council  NSWCC 25; 23 NSWCCR 329, George Weston Foods Ltd v Bogdanoski  NSWWCCPD 62 considered; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Northern NSW Local Health Network v Heggie  NSWCA 255; 12 DDCR 95, Department of Education and Training v Sinclair  NSWCA 465, 4 DDCR 206, Dennis v NSW Fire Brigades  NSWWCCPD 165, Soutar v The Commissioner of Police  NSWDC 95, Mascaro v Inner West Council  NSSWWCCPD 29 considered and applied.
Decision date: 13 September 2019 | Member: Deputy President Elizabeth Wood
Worker sustained injury to the lumbar spine in 2003; claim for lump sum compensation in relation to the consequential cervical spine condition; Arbitrator noted that there was no complaint made about the cervical spine until 11 years after the injury to the lumbar spine; reference to Murphy v Allity Management Services Pty Ltd and Wylie-Gray v Fitness First Australia Pty Ltd; Arbitrator noted pathology at L4/5 and L5/S1 including a transitional L5 vertebrae and the possibility of an L5/S1 slip; surgery has been recommended by a number of medical experts; The worker had a bizarre altered posture that had been evident since 2003; worker’s IME opined that the altered posture has brought about the neck condition; Held – material contribution to the worker’s cervical condition by the 2003 injury; matter referred to an AMS.
Decision date: 12 September 2019 | Member: Arbitrator John Wynyard
Psychological injury; claim for weekly benefits; injury in dispute; whether the injury was caused by reasonable action taken by the respondent with respect to discipline under section 11A(1) of the 1987 Act; workers capacity for work in dispute; whether the worker is entitled to s 60 expenses pursuant to the 1987 Act; employer submits that the main contributer to the applicant’s psychological state is the disciplinary action taken on 27 October 2018; reference to Bhatia and Austin; clinical notes recorded a history of bullying at work in 2011; reference to eggshell skull principle; Arbitrator satisfied that the worker sustained a psychological injury in which employment was a substantial contributing factor; AG v K and Baker v Southern Metropolitan Cemeteries Trust applied; Arbitrator satisfied that the worker’s outbursts on the date of injury was the culmination of a series of events in the workplace which caused the worker to perceive he was in a hostile environment; Held – worker’s injury was not caused by reasonable action taken by the respondent; Arbitrator further held the employer to pay weekly payment pursuant to s 37 and expenses pursuant to s 60 of the 1987 Act.
Decision date: 12 September 2019 | Member: Arbitrator Brett Batchelor
The worker sustained injury to the left knee on 19 January 2011; worker further alleged that she suffered a frank injury to the back in the same incident or in the alterative developed a consequential condition of the lumbar spine and left shoulder due to her altered gait; the respondent disputed injury to the back and consequential condition affecting the back and left shoulder; worker underwent lumbar laminectomy; proposed L3/4 fusion and surgery to the left shoulder and left hand for which liability was denied by respondent; respondent further denied that surgery not reasonably necessary; respondent further argued that workers compensation period had expired under section 59A of the 1987 Act in respect of surgery to the left hand; Kooragang and Murphy cited in respect of common sense evaluation of casual chain; Arbitrator found that medical evidence established on the balance of probabilities that surgery was reasonably necessary “as a result of the injury”; dispute as to whether injury can have multiple causes; Arbitrator accepted the worker’s medical evidence that the worker’s altered gait accelerated the symptoms at the L3/4 level in the workers back and contributed to the need for surgery; Arbitrator satisfied that the left knee injury contributed to the need for left shoulder surgery; reference to Baldacchino in regard to the term ‘artificial aids’; Held – the proposed surgery to the lower back and left shoulder results from the injury to the left knee and is reasonably necessary; the proposed secondary surgery to the left hand is not directly consequential on any earlier surgery and does not meet the criteria set out in s 59A of the 1987 Act.
Decision date: 12 September 2019 | Member: Arbitrator John Isaksen
Injury to the right knee accepted; consequential injury to the left knee in dispute; whether the proposed surgery is reasonably necessary; worker’s IME opined that there was no evidence of osteoarthritis prior to the subject accident; Bennett v Qantas Airways Ltd and Kooragang Cement v Bates applied in respect of common sense test to causation; Arbitrator satisfied that the injury to the left knee resulted from the injury to the right knee; Diab and Rose applied; treating surgeon opined that left TKR surgery is appropriate; Held – respondent to pay the reasonable costs of the applicant’s proposed TKR surgery pursuant to s 60 of the 1987 Act.
Decision date: 12 September 2019 | Member: Arbitrator Michael Perry
Fracture dislocation of right ankle; disputed issue is whether the applicant is a worker performing ambulance work in co-operation with the employer; applicant performed ambulance work per clause 16 of Schedule 1 of the 1998 Act; clause 16 directs attention to whether a relationship of “co-operation” exists between the applicant and the HAC; two parties worked independently of each other with respect to providing first aid or treatment; applicant found not to be working or acting together with or joint HAC when working; applicant’s claim for compensation dismissed and an award determined for the respondent; proceedings relating to applicant’s claim for weekly payments of compensation are discontinued.
Decision date: 13 September 2019 | Member: Arbitrator Marshal Douglas
Gradan Bathrooms (t/as Megasealed Central Coast) v Workers Compensation Nominal Insurer (iCare) & Robert Talbot  NSWWCC 303
The applicant applied for a determination under s 143(4) of the Workers Compensation Act 1987 of its liability to reimburse the Workers Compensation Nominal Insurer (iCare) for workers compensation payments made to its former employee; the applicant did not maintain a policy of insurance for the purpose of section 140(2) of the Act; worker allegedly sustained an injury to his right elbow in the course of his employment; iCare accepted liability and paid weekly benefits and medical expenses to the worker; the applicant asserted that the worker did not sustain the injury as he claimed; Briginshaw cited with respect to fraudulent conduct; worker asserted that the burden of proof lies with the employer to show that the payments should not have been made; employer submitted that the onus of proof is neutral; findings that on balance of probabilities worker sustained the injury to his right elbow; worker’s employment a substantial contributing factor to his injury; worker suffered incapacity as a result. Held – applicant to reimburse iCare for the sum of weekly benefits compensation and reasonably necessary medical expenses.
Decision date: 13 September 2019 | Member: Arbitrator Jill Toohey
Worker allegedly injured left knee; worker’s employment substantially contributed to injury; Kooragang cited as common-sense evaluation of the causal chain despite concerns raised by HCA in Comcare; Murphy cited as authority that although a condition can have multiple causes, the onus lies with the worker to establish the injury’s material contribution; what constitutes reasonably necessary treatment concisdered in Rose; Diab applied with respect surgery’s potential to alleviate the applicant’s symptoms and to be an appropriate and effective treatment; reasonably necessary tratement includes proposed left total knee replacement, and associated expenses; respondent liabile to pay reasonably necessary medical expenses per s 60 of the 1987 Act.
Decision date: 13 September 2019 | Member: Arbitrator Glenn Capel
Medical Appeal decision
AMS assessed DRE Lumbar Category III and a further 1% for the effects on the activities of daily living (ADLs). Appellant argued that radiculopathy not established and that the AMS should not have allowed 1% for the effects on ADLs. Held: AMS applied incorrect criteria when finding that radiculopathy had been established as he failed to specify a major criterion within the meaning of paragraph 4.27 of the fourth edition guidelines. Discussion by Panel of difference in meaning between radicular pain and radiculopathy. Held: Medical evidence including a report tendered by the appellant all supported an allowance of 1% for ADLs. Observations of Basten JA in Vitaz v Westform (NSW) Pty Ltd applied that alternative conclusion submitted by appellant was not reasonably available on the evidence. Finding of 1% for ADLs justified on this basis. Held on reassessment that radiculopathy established from loss of ankle jerk (major criteria) consistent with a CT scan: MAC confirmed.
Decision date: 18 September 2019 | Panel: Arbitrator John Harris, Dr Philippa Harvey-Sutton and Dr David Crocker | Body system: lumbar spine