Legal Bulletin No. 19
Issued 8 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.
Causation; assessment of whole person impairment; whether two injuries received approximately a year apart are causally connected; whether pathology in the left shoulder ‘resulted from’ the initial right shoulder injury; two distinct injuries; combined assessment of both injuries not permitted; neither assessment of the two shoulders separately was greater than 10 per cent whole person impairment; award for respondent employer; Murphy v Allity Management Services Pty Ltd  NSWWCCPD 49 discussed; drawing of inferences from the evidence.
Decision date: 25 October 2019 | Member: Acting Deputy President Geoffrey Parker SC
Estoppel; Bouchmouni v Bakhos Matta t/as Western Red Services  NSWWCCPD 4 considered; Workers Compensation Legislation Amendment Act 2018; Pt 19L of Sch 6 of the 1987 Act considered.
Decision date: 28 October 2019 | Member: President Judge Phillips
Section 4, 105, and 287–289 of the 1998 Act – whether the Commission had jurisdiction to determine a dispute between a claimant and an insurer where the insurer was not a licensed insurer for the purposes of the 1998 Act – Programmed Maintenance Services Limited v Barter  NSWWCCPD 42, Certain Lloyd’s Underwriters v Cross  HCA 56; 248 CLR 378 considered and applied, Patrick Stevedores Holdings Pty Ltd v Fogarty  NSWWCCPD 76; Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd  NSWWCCPD 88 applied.
Decision date: 29 October 2019 | Member: Deputy President Elizabeth Wood
Whether the amount at issue on appeal satisfies the percentage threshold requirement to appeal – section 352(3)(b) of the 1998 Act; Olympic Fencing (NSW) Pty Ltd v Crossley  NSWWCCPD 121, Popovic v Liverpool City Council  NSWWCCPD 49, Sheridan v Coles Supermarkets Australia Pty Limited  NSWWCCPD 3 applied.
Decision date: 30 October 2019 | Member: Deputy President Elizabeth Wood
Claim for compensation under section 60 of 1987 Act for costs of L4/5 fusion surgery; whether treatment reasonably necessary; diagnosis of major depression; respondent’s expert gave opinion that outcome would be poor as pain due to non-organic condition; Held – proposed treatment reasonably necessary; Diab v NRMA Ltd and Rose v Health Commission (NSW) applied; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 24 October 2019 | Member: Arbitrator Rachel Homan
Uninsured employer applied for determination of liability for compensation paid by Nominal Insurer on basis of reasonable grounds for belief that total amount of wages payable to employees during financial year would not exceed exemption limit under section 155AA of the 1987 Act; Held – employer did have reasonable grounds for the belief; discussion of Prior v Mole 2017 HCA 10 as to belief requiring existence of facts sufficient to induce state of mind in reasonable person; standard less than proof on civil standard of probability: Anshun estoppel; Held – employer not estopped from arguing exempt employer after agreeing to reimburse previous amount of compensation paid.
Decision date: 25 October 2019 | Member: Arbitrator Michael Perry
Claim for weekly benefits; psychological injury arising out of or in the course of employment and injuries as a result of a motor vehicle accident; journey claim or alternatively injury in the course of employment; disputed relying on sections 4, 9A, 10(3A) and 11A of the 1987 Act; interlocutory decision on admission/rejection of evidence; section 73 of the 1998 Act and clause 41 of the Regulation; Chown v Tony Madden Refrigeration Transport Limited  NSWWCCPD 159; Held – factual report and one IME report admitted; supplementary IME report rejected.
Decision date: 28 October 2019 | Member: Arbitrator Brett Batchelor
Dispute as to whether worker injured neck; whether surgery was reasonably necessary; Kooragang Cement Pty Ltd v Bates; Rose v Health Commission (NSW); Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd, discussed and applied; Held - worker sustained neck injury; surgery was reasonably necessary; lump sum claim remitted to Registrar for referral to an Approved Medical Specialist.
Decision date: 30 October 2019 | Member: Senior Arbitrator Glenn Capel
Whether applicant was an employee of the respondent; whether indicia of employment relationship as set out in Stevens v Brodribb satisfied; onus of proof discussed; Held - award for respondent; evidence insufficient to satisfy onus of proof that applicant was an employee of respondent; conflicting evidence as to nature and system of work carried out and level of supervision.
Decision date: 30 October 2019 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
AMS assessed respondent at 20% WPI following a partial knee replacement and made no section 323 deduction; Arbitrator had entered consent orders and findings which provided that injury was by way of aggravation of pre-existing condition and that injuries and aggravations with subsequent employers also caused the need for the knee replacement; Held - The finding by the AMS that there was no prior problem was inconsistent with the consent findings and a matter of liability: Jaffarie v Quality Castings Pty Ltd (No 2) applied; Held - The finding that the partial knee replacement caused by subsequent employment was arguably not a liability matter; appellant’s contention that there should be further deduction for subsequent injuries otherwise inconsistent with Johnson v NSW Workers Compensation Commission and was rejected; MAC revoked and 10% deduction made pursuant to section 323 of the 1998 Act.
Decision date: 25 October 2019 | Panel Members: Arbitrator John Harris, Dr Brian Noll,
Dr Tommasino Mastroianni | Body system: Left lower extremity
Whether demonstrable error on face of Certificate; fresh evidence section 328(3) of 1998 Act; whether statement of appellant and supplementary report of treating practitioner should be admitted in evidence; Lukasevic v Coates Hire Operations Pty Limited  NSWCA 112; Petrovic v BC Serv No 14 Pty Limited and Ors  NSWSC 1156 discussed; grounds of appeal; errors in Psychiatric Impairment Rating Scale assessment; incorrect history taken by Approved Medical Specialist; AMS failed to take a more balanced view of the facts; importance of clinical findings discussed; distinction between error and difference of opinion; Mahenthirarasa v State Rail Authority of New South Wales & Ors  NSWSC 22; Glenn William Parker v Select Civil Pty Limited  NSWSC 140; Ferguson v State of New South Wales  NSWSC 887; NSW Police Force v Daniel Wark  NSWWCCMA 36 discussed and applied; Held – the history taken and the clinical findings were consistent with Class 3 and it was open to the AMS to arrive at this conclusion; MAC confirmed.
Decision date: 28 October 2019 | Panel Members: Arbitrator Ross Bell, Dr Michael Hong,
Dr Julian Parmegiani | Body system: Psychological
Psychological injury; AMS assessed 22% WPI in respect of the psychological disorder deemed to have occurred on 20 July 2018; Appeal Panel agreed with the AMS that fibromyalgia was not a pre-existing condition as it came on during the last month of the respondent’s employment with the appellant; Held - that fibromyalgia was a concurrent condition, not a pre-existing condition, and therefore no deduction could be made pursuant to section 323; MAC confirmed.
Decision date: 28 October 2019 | Panel Members: Arbitrator Carolyn Rimmer,
Dr Julian Parmegiani, Professor Nicholas Glozier | Body system: Psychological
Whether demonstrable error on face of Certificate; grounds of appeal; diagnosis and pathology of injury; section 323 of 1998 Act; whether AMS required to distinguish between pathology arising from a) injury and b) pre-existing condition at time of initial assessment of overall impairment before considering section 323; whether AMS erred in finding no deductible proportion under section 323 Greater Western Area Health Service v Austin  NSWSC 604; Cole v Wenaline Pty Ltd (2010) NSWSC 78; Fire & Rescue NSW v Clinen  NSWSC 629; Vitaz v Westform (NSW) Pty Limited  NSWCA 25 applied; The Panel found that the AMS was correct to conclude that there was no evidence of any condition in the worker’s shoulders before she began her period of employment with the respondent; Held – MAC confirmed.
Decision date: 28 October 2019 | Panel Members: Arbitrator Ross Bell, Dr Drew Dixon,
Dr John Brian Stephenson | Body system: Right upper extremity and left upper extremity
Psychological injury; appellant challenged 8% findings; 2 PIRS categories challenged; further allegation of AMS error in finding co-morbid condition (obstructive sleep apnoea); Held - Ferguson applied; co-morbid condition not relevant to WPI; MAC confirmed.
Decision date: 29 October 2019 | Panel Members: Arbitrator John Wynyard,
Dr Julian Parmegiani, Dr Michael Hong | Body system: Psychological
Application by appellant for reconsideration; Appeal Panel declined to reconsider its decision because appellant sought reconsideration based on an issue outside of its grounds of appeal and because the premise on which the issue was based was wrong.
Decision date: 29 October 2019 | Panel Members: Arbitrator Marshal Douglas,
Dr Ian Weschler, Dr Michael Delaney | Body system: Psychological
Section 323 deduction; failure to consider whether any impairment which arose from previous injury on 18 March 2015 was an error; Appeal Panel was satisfied that the worker had no radicular signs until after the second injury on 2 April 2015; the Appeal Panel considered that the worker had sustained significant injury in the second incident on 2 April 2015 and then underwent surgery to treat symptoms that arose following the injury on 2 April 2015; Held - the Appeal Panel was satisfied that none of the impairment assessed was caused or contributed to by the injury on 18 March 2015; MAC confirmed.
Decision date: 30 October 2019 | Panel Members: Arbitrator Carolyn Rimmer,
Dr Mark Burns, Dr John Brian Stephenson | Body system: Cervical spine