Legal Bulletin No. 15
Issued 11 October 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.
Supreme Court decision
ADMINISTRATIVE LAW; judicial review; workers compensation; medical dispute as to degree of whole person impairment; request by worker to be re-examined by Appeal Panel; whether Appeal Panel bound to examine worker; where certificate of determination entered before application for review of decision of Appeal Panel; decision of Arbitrator refusing to rescind certificate; whether Appeal Panel failed to engage with worker’s arguments; summons dismissed with costs.
Decision date: 9 October 2019 | Before: McCallum J
Disputed injury to left knee in fall from ladder; minor delay in reporting symptoms; evidence of pre-existing pathology; whether treating surgeon had correct history; NSW Police Force v Hahn  NSWWCCPD 51 discussed; Arbitrator satisfied that worker sustained injury and need for surgery proposed resulted from injury; respondent ordered to pay incurred s 60 expenses and costs of and associated with proposed left knee surgery.
Decision date: 27 September 2019 | Member: Arbitrator Rachel Homan
Claim for declaration pursuant to section 60(5) of the Workers Compensation Act 1987 that left shoulder arthroplasty and Synvisc injection each constitute “reasonably necessary treatment” as a result of injuries in 2013 and 2018; respondent disputed later injury and asserted that the effects of earlier injury has ceased; finding injury on the facts; Ky v Blue Leaf Food Group Pty Ltd & Rail Services Australia v Dimovski followed as to the nature of injury; Diab v NRMA Ltd applied as to whether treatment “reasonably necessary”. Held - both treatments were reasonably necessary, one being short-term and the other a long-term remedy resulting from the subject injuries.
Decision date: 1 October 2019 | Member: Arbitrator William Dalley
Injury to back; whether injury sustained at work; whether employment a substantial contributing factor to any injury; whether any incapacity arises from alleged injury; Held - applicant suffered injury in the course of employment; employment a substantial contributing factor to injury; finding of pathological change in applicant’s lumbar spine; issue of injury discussed; substantial contributing factor discussed; Mercer v ANZ Banking Corporation  NSWCA 138; Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear  NSWWCCPD 47 followed; also held - applicant suffered partial incapacity; respondent liable to pay a weekly compensation pursuant to section 37 of the 1987 Act.
Decision date: 1 October 2019 | Member: Arbitrator Cameron Burge
Claim for cost of proposed surgery to right wrist and left knee; right wrist surgery for carpal tunnel release medically necessary but disputed on grounds of section 4 and 9A; left knee replacement also medically necessary but disputed on basis the need did not arise from consequential condition arising from accepted right knee injury; Held - employment not a substantial contributing factor to right carpal tunnel injury; requirement for necessary left knee replacement arises as a result of consequential condition caused by accepted right knee injury; discussion of section 9A; Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 discussed; requirements to establish consequential condition examined; Kumar v Royal Comfort Bedding Pty Ltd  NSWWCCPD 8 followed.
Decision date: 1 October 2019 | Member: Arbitrator Cameron Burge
Youssef John Geroges T/As The Hills Cement Rendering v Icare Workers Compensation Insurance  NSWWCC 319
Section 145(3) of the 1987 Act application; whether monies paid recoverable by nominal insurer; extent of jurisdiction of the Commission pursuant to s 145(4); application dismissed; Held - jurisdiction limited to terms of 145(1) notice.
Decision date: 1 October 2019 | Member: Arbitrator John Wynyard
Clause 10(1) of Sch 8 to the Workers Compensation Regulation 2016; whether claim for s66 benefits made before the Workers Compensation Amendment Act 2012 preserves a claim pursuant to s 67 of the Workers Compensation Act 1987, in circumstances where a Certificate of Determination was issued, before a claim pursuant to s 67 was formally made; respondent to pay the worker compensation pursuant to s 67 of the 1987 Act.
Decision date: 2 October 2019 | Member: Arbitrator Elizabeth Beilby
Medical Appeal decisions
Cervical Spine; AMS did not have regard to the opinion of the expert qualified on behalf of the respondent; administrative error because it was not sent to him; extent of deduction confirmed; AMS bound by the terms of the referral to him; WPI based on surgery that took place as a result of injury referred; allowance for second level surgery wrongly applied given the terms of the referral; MAC revoked.
Decision date: 30 September 2019 | Member: Arbitrator Jane Peacock, Dr James Bodel and Dr David Crocker | Body system: cervical spine
Challenge to AMS assessment in 3 PIRS categories; Ferguson applied; cavilling with ratings; appeal dismissed; challenge regarding causation and s 323; employer’s medical expert found no relevant injury; employer admitted liability; estopped from denying liability; no evidence regarding subsequent novus actus; MAC confirmed.
Decision date: 30 September 2019 | Member: Arbitrator John Wynyard, Dr Julian Parmegiani and Dr Patrick Morris | Body system: psychological
Appeal from assessment of left shoulder; whether approved medical specialist erred in making 1/10 deduction for pre-existing arthritis; whether misconstrued date of left shoulder x-ray demonstrating arthritis; no error in the AMS’s reasoning or application of incorrect criteria; MAC confirmed.
Decision date: 1 October 2019 | Panel: Arbitrator Richard Perringnon, Dr Philippa Harvey-Sutton and Dr Drew Dixon | Body systems: left upper extremity and neck
Injury to the right upper extremity; AMS erred by effectively making a double deduction under s 323 of the 1998 Act; AMS assessed the upper extremity impairment, then made a deduction under s 323; AMS then converted the upper extremity impairment to whole person impairment and then made another deduction under s 323. MAC revoked.
Decision date: 2 October 2019 | Panel: Arbitrator Jane Peacock, Dr Brian Noll and Dr Margaret Gibson | Body system: right upper extremity and scarring (TEMSKI)