Legal Bulletin No. 2
Issued 12 July 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.
Alleged factual error – application of Raulston v Toll Pty Ltd  NSWWCCPD 25; alleged legal error; finding of witness’s unreliability when witness not called – application of New South Wales Police Force v Winter  NSWCA 330; burden of proof – consideration of phrase “not comfortably satisfied” and “actual persuasion on the balance of probabilities” - Drca v KAB Seating Systems Pty Ltd  NSWWCCPD 10; Elsamad v Belmadar Pty Ltd  NSWWCCPD 22
Decision date: 1 July 2019 | Member: President Judge Gerard Phillips
Deemed worker – Clause 16 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998
Decision date: 2 July 2019 | Member: Deputy President Michael Snell
Worker alleged left knee and lumbar spine injury resulting from fall at work; whether lumbar spine injury section 4 compensable injury; whether weekly benefits compensation payable; worker relied on clinical notes of back pain complaints; suddenness is not necessary for an injury: Military Rehabilitation and Compensation Commission v May; worker had left foot problems arising from clubbed-foot and morbid obesity but injury can have multiple causes: ACQ Pty Ltd v Cook; Arbitrator held work was substantial contributing factor to back injury as worker had mobility and active lifestyle before fall; Arbitrator not persuaded by medical opinion that both injuries unrelated to fall; Arbitrator held no work capacity for the second entitlement period despite concerns about some aspects of worker’s evidence; award for applicant.
Decision date: 1 July 2019 | Decision Maker: Arbitrator Nicholas Read
Injury to lumbar spine; liability accepted by insurer; maximum medical improvement later found not to be fully ascertainable in accordance with s 319(g) of the 1998 Act as weight loss required before surgery; application of s 39 of the 1987 Act and cl 28C of Pt 2A of Sch 8 of the 2016 Regulation; whether worker entitled to be paid after 260 weeks and before maximum medical improvement found to be not fully ascertainable; applicant submitted that beneficial legislation should be construed to allow worker benefit of uncertainty, relying on Kennewell v ISS Facility Services Australia Ltd and Strooisma v Coastwide Fabrications and Erections Pty Ltd; respondent submitted that cl 28C should be interpreted as an exception with no retrospective application, relying on RSM Building Services v Hochbaum and TAFE NSW v Whitton; Arbitrator applied Hochbaum, Whitton and Strooisma to hold that worker not entitled to retrospective application of exception; award for respondent.
Decision date: 1 July 2019 | Decision Maker: Senior Arbitrator Glenn Capel
Worker claimed neck, back and eye injuries from note counting machine accident; worker involved in motor vehicle accident travelling to ophthalmologist; whether injuries in motor accident were an exacerbation of previous injuries; whether journey provision under s 10 (3) (c) of the 1987 Act applied; whether worker has work capacity; respondent submitted worker failed establish real and substantial connection between employment and motor vehicle accident relying on Dewan Singh and Kim Singh v Wickenden and Bina v ISS Properties Pty Ltd; Arbitrator held that worker injured neck and back when she hyperextended her neck in first incident; law of causation in Megson v Staging Connections Group Ltd and Murphy v Allity Management Services Pty Ltd discussed; application of s 10(3)(c) depends on facts of individual case: State Super Financial Services Australia Limited v McCoy; Arbitrator held that motor vehicle injury caused by employment but that s 10(3) (c) would have applied if it had not; Arbitrator found limited work capacity; award for applicant.
Decision date: 1 July 2019 | Decision Maker: Arbitrator John Wynyard
Whether worker suffered ruptured aneurism and subarachnoid haemorrhage on construction site within meaning of ss 4(a) and 9A of the 1987 Act; whether worker has entitlement to s 33 weekly payments; whether treatment expenses fall under s 60; applicant submitted history recorded by medical expert not inconsistent with history and is evidence of fact: Guthrie v Spence; applicant pleaded injury as frank injury and held it was also disease injury: NSW Police Force v Gurnhill; respondent submitted worker did not perform heavy manual work and no contemporaneous records of incapacity; causation authorities discussed including Comcare v Martin; worker statement years after event must be treated with caution: Watson v Foxman; Arbitrator accepted evidence of neurological surgeon as to existence of injuries but found attribution to employment based on incomplete history: Winter v NSW Police Force; Arbitrator held employment was not a substantial contributing factor as insufficient evidence; award for respondent.
Decision date: 2 July 2019 | Decision Maker: Arbitrator Anthony Scarcella
Medical Appeal decisions
Injury to the right knee; injury sustained when the applicant slipped on the step of a crane cab; whether the AMS erred in respect of a deduction pursuant to s 323; appellant's statement confirms that he underwent two arthroscopies to the right knee at age 17; discussion of Cole and Vitaz; the AMS noted that there is evidence of a pre-existing condition of the right knee with an associated surgical reconstruction; Panel satisfied that the AMS explained his reasons and did not err when applying the deduction; MAC confirmed.
Decision date: 2 July 2019 | Panel: Arbitrator Deborah Moore, Dr Brian Noll and Dr Tommasino Mastroianni | Original AMS: Dr Tim Anderson | Body System: right knee
Injury to left ankle; exception to s 39 of the 1987 under cl 28C of Sch 8 to the 2016 regulation applied as maximum medical improvement not reached under section 319(g); employer sought reconsideration on basis that maximum medical improvement had been reached based on medical report; Delegate considered application under s 329(1A); Delegate distinguished Milosavljevic v Medina Property Services Pty Ltd as employer in this case not circumventing decision to maintain medical dispute; Delegate held that dispute brought by employer and could not be discontinued by worker under r 15.7 of the 2011 rules; s 322A does not apply to MAC; employer can bring s 329 application; application not brought to consider s 32A that worker highest needs; limited case law on application of s 329: Target Australia Pty Ltd v Mansour; estoppel argument not accepted as maximum medical improvement assessment can change: Railcorp NSW v Registrar of the WCC of NSW; Delegate satisfied that employer provided sufficient medical evidence to warrant reconsideration; AMS to limit reconsideration to whether degree of permanent impairment is fully ascertainable; matter referred back to AMS for reconsideration
Decision date: 1 July 2019 | Decision-maker: Delegate Parnel McAdam