Legal Bulletin No. 18
Issued 1 November 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
Civil procedure; pleadings; striking out; plaintiff limited to pre-filing statement under section 318 of the 1998 Act; whether amended statement of claim was “materially different” to proposed statement of claim forming part of pre-filing statement.
Decision date: 28 October 2019 | Before: Cavanagh J
Alleged factual error; application of Raulston v Toll Pty Ltd  NSWWCCPD 25, 10 DDCR 156 and Fox v Percy  HCA 22, 214 CLR 118, 197 ALR 201, 77 ALJR 989, weight of evidence; Shellharbour City Council v Rigby  NSWCA 308, ‘judicial notice’ in the Commission, ‘worker’ issues and the totality of the relationship; application of Hollis v Vabu Pty Ltd  HCA 44, 207 CLR 21, 75 ALJR 1356, 106 IR 80, 181 ALR 263 and Pitcher v Langford (1991) 23 NSWLR 142.
Decision date: 22 October 2019 | Member: Deputy President Michael Snell
Injury to the cervical spine and peripheral nervous system in dispute; adequacy of expert evidence; opinion regarding traumatic brain damage and partial cervical spinal cord injury given four years after accident; Held; Assumptions not confirmed by contemporaneous evidence; Award for the respondent.
Decision date: 17 October 2019 | Member: Arbitrator John Wynyard
Worker sustained two psychological injuries in employment; claim for weekly compensation; first injury resulted in partial incapacity; worker totally incapacitated following second injury; Held – discussion of worker’s capacity to earn in suitable employment in period of partial incapacity; Aitken v Goodyear, Rubber and Wollongong Nursing Home Pty Ltd v Dewar
discussed; Held – award of compensation for total incapacity following second injury could be based on PIAWE following first injury as total incapacity results from the first injury; Calman V Commissioner of Police applied; awards for weekly compensation made.
Decision date: 18 October 2019 | Member: Arbitrator John Harris
Taylor v Soxami Pty Ltd; Burrangong Pet Foods Pty Ltd; Burrangong Meat Processorts Pty Ltd; Burrangong Abattoirs Pty Ltd (in receivership)  NSWWCC 338
Worker suffered a back injury in 1997 and a crush injury to the right ankle in 2002; paid lump sum compensation in respect of both injuries and continued employment on light duties; workplace closed in February 2010; complaint of ongoing back pain leading to lumbar spine surgery in January 2016; claim for weekly payments to 31 December 2012 and further claim for 13 weeks from 6 January 2016 pursuant to section 41 of the 1987 Act; Held – manual worker with mild intellectual impairment dependent on physical strength for employment; no work capacity despite continuing employment on light duties until closure of the workplace; Held – entitled to payments at maximum statutory rate to 31 December 2012; section 41 claim identified at hearing as dependent upon whether surgery was reasonably necessary as a result of the 1997 injury; upon consideration questions of jurisdiction and interpretation of section 41 not addressed at hearing; order for submissions made in respect of later claim for weekly payments; reference to Lee v Bunnings Group Pty Ltd.
Decision date: 18 October 2019 | Member: Arbitrator William Dalley
Claim for weekly payments and the cost of lumbar laminotomy and neurolysis for injury to left knee and consequential condition affecting lumbar spine; application of the test in Moon v Conmah P/L to lay evidence and medical evidence; application of the test in Murphy v Allity Management as to whether injury materially contributes to need for surgery; worker already paid 183 weeks; whether in the circumstances of the dispute the Commission can award weekly payments after second entitlement period; whether sufficient evidence available to make a finding of no current work capacity; Held – worker has a consequential condition affecting lower back as a result of injury to left knee; injury materially contributes to the need for surgery and proposed surgery is reasonably necessary; decline to make an award of weekly payments in the dispute before the Commission.
Decision date: 21 October 2019 | Member: Arbitrator John Isaksen
Claim for weekly payments and treatment expenses; worker suffered back injury on 17 August 2015 in the performance of his duties as a police officer; subsequent requirement for back surgery following a lifting incident while on leave; liability denied; issue as to existence of causal connection between the requirement for treatment and consequential impairment; Held – causal connection established on the basis of medical reports and imaging; requirement for surgery resulted both from the lifting incident and from the accepted injury; reference to ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook
Decision date: 21 October 2019 | Member: Arbitrator William Dalley
Claim for compensation under section 60 of 1987 Act for costs of total knee replacement; significant pre-existing osteoarthritis and recent arthroscopy on same knee; knee aggravated in slip and fall at work; whether the need for arthroplasty arose as a result of injury; Held – need for treatment arose as a result of injury; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; EMI (Aust) Ltd v Bes discussed; respondent to pay the costs of and incidental to the proposed arthroplasty.
Decision date: 22 October 2019 | Member: Arbitrator Rachel Homan
Dispute as to whether proposed bariatric surgery was reasonably necessary following heel injury and consequential back condition; worker had long term weight and health issues but claimed his weight had increased as a result of inactivity caused by his injury; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Murphy v Allity Management Services Pty Ltd and Jones v Dunkel, discussed and applied; Held – bariatric surgery was reasonably necessary; award for the worker pursuant to section 60 of the 1987 Act.
Decision date: 22 October 2019 | Member: Senior Arbitrator Glenn Capel
Worker sustained injury to lower back during the course of employment on 14 March 2004; whether effects of injury continued for period of claim; assessment of partial incapacity to earn pursuant to section 40 of the 1987 Act; whether worker suffered actual loss owing to that incapacity and if so for which periods; Held – Mitchell v Central West Health Service (1997) 14 NSWCCR 526 applied; worker suffered continued effects of injury up to and including 31 December 2012 giving rise to partial incapacity on the open labour market.
Decision date: 22 October 2019 | Member: Arbitrator Cameron Burge
Claim for future surgery; the worker was employed by the respondent as a second in charge of their sport surface construction and renovation department; the worker fell approximately one metre from a flatbed truck onto a concrete surface sustaining injury to his neck, thoracic spine, lumbar spine, shoulders, bladder, and bowel together with erectile dysfunction and vertigo; dispute as to whether worker’s symptoms were caused by or relate to a workplace injury; section 4 and 9A of the 1987 Act discussed; causation; aggravation of pre-existing asymptomatic condition; injury of the syrinx; applicant’s employment main contributing factor to aggravation of asymptomatic condition; section 4(b)(ii) of the 1987 Act discussed; whether proposed surgery necessary as medical opinion suggests it will only arrest workers condition rather than provide a cure; whether surgery reasonably necessary per section 60 of the 1987 Act; Held – proposed surgery reasonably necessary in circumstances.
Decision date: 22 October 2019 | Member: Arbitrator Cameron Burge
Claim for lump sum compensation under sections 66 and 67 of the 1987 Act; worker employed as a paramedic who sustained primary psychological injury; nature of injury sustained not in dispute; whether Commission has jurisdiction to determine that effects of injury ceased; Peric v Lee & Ran t/as Pure and Delicious Healthy and Workcover New South Wales v Evans discussed; Workers Compensation Legislation Amendment Act 2018; effect of legislative amendments ; Held – once matter referred to an AMS the ongoing effects of the injury are within the exclusive jurisdiction of the AMS; Jaffarie v Quality Castings Pty Limited, Greater Taree City Council v Moore and Haroun v Rail Corporation New South Wales discussed; matter remitted to Registrar for referral to AMS.
Decision date: 22 October 2019 | Member: Arbitrator Rachel Homan
Application for reconsideration pursuant to section 350(3) of the 1998 Act; reconsideration of Certificate of Determination (COD) issued following MAC where no appeal lodged; purpose of reconsideration to rescind COD to allow appeal against MAC to proceed; discussion of Samuel, Hurst and Tedeschi; found satisfactory explanation and reason for delay; found oversight of solicitor not determinative of relief to be granted; found substantial merits not established on evidence available; application for reconsideration declined.
Decision date: 22 October 2019 | Member: Arbitrator Michael Wright
Whether worker suffered injury arising out of or in the course of her employment; dispute as to whether injurious event had occurred; dispute as to whether there was any physiological consequence from the event; Held – worker suffered to injury; remitted to Registrar to refer to AMS to assess WPI.
Decision date: 23 October 2019 | Member: Arbitrator Marshal Douglas
Claim for weekly benefits of compensation due to psychological injury; worker claims injury caused by interpersonal conflicts in workplace and bullying and harassment; discussion and application of Attorney General’s Department v K; respondent disputes injury and/or relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken by way of discipline; Held – worker found to have sustained psychological injury due to perception of real events in a hostile work environment; discipline of worker was reasonable and a cause of psychological injury but not the whole or predominant cause of injury (section 11A); worker has had no current work capacity since 7 April 2019.
Decision date: 24 October 2019 | Member: Arbitrator John Isaksen
Medical Appeal decisions
Medical appeal; teacher suffered neck injury in 1986 for which she underwent surgery in 1987; aggravation of injury in 2002 resulting in further surgery in 2008 and 2009; 1986 injury assessed with respect to right arm under section 16 of 1987 Act; appeal with respect to AMS’s failure to make section 323 deduction from WPI assessment to reflect effects of 1986 injury; Held – deduction of 25% under section 323 was appropriate; MAC revoked.
Decision date: 18 October 2019 | Panel Members: Arbitrator Catherine McDonald,
Dr David Crocker and Dr Roger Pillemer | Body system: Cervical spine and right upper extremity
Appellant sustained injury to cervical spine; appellant alleged AMS fell into error in failing to assess the condition of cervical spine that arose post injury and in making a deduction under section 323 for a pre-existing condition; the Appeal Panel found that the available evidence supported approach of the AMS; MAC upheld.
Decision date: 22 October 2019 | Panel Members: Arbitrator Jane Peacock,
Dr Roger Pillemer and Dr Margaret Gibson | Body system: Cervical spine
Warehouse manager/truck driver relied on the nature and conditions of employment as causing cervical and lumbar spine injuries; extent of section 323 deduction in dispute; nature and conditions period not clearly pleaded though worker had been employed in the tasks at the same workplace for 20 years by two named employers; dispute as to period of employment not raised by respondent until the appeal; AMS erred in deducting 100% pursuant to section 323 in respect of cervical spine because the injury occurred before the relevant period of employment and in deducting one quarter in respect of the lumbar spine injury; MAC revoked.
Decision date: 23 October 2019 | Panel Members: Arbitrator Catherine McDonald,
Dr Gregory McGroder and Dr J Brian Stephenson | Body system: Cervical and lumbar spine
Work Capacity Decision by insurer reducing worker’s weekly payments, on grounds that he had the capacity to work in suitable employment, based on a Vocational Assessment and Labour Market Research report. Dispute as to whether insurer complied with section 78 of the 1998 Act and whether it issued a valid Work Capacity Decision due to its failure to attach all documents contained in the worker’s claim file; sections 32A, 43 of the 1987 Act; sections 78, 79 and 80 of the 1998 Act and clauses 38, 41 and 42 of the 2016 Regulation considered. Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services; Macrae v St Margaret's Hospital; Bonica v Placentini & Son Pty Ltd discussed; Held – strict compliance with the legislation is not required; delegate satisfied that the worker would only secure suitable employment at an entry level; respondent directed to pay the worker weekly compensation at a higher rate.
Decision date: 22 October 2019 | Delegate: Senior Arbitrator Glenn Capel