Legal Bulletin No. 20
Issued 15 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.
Court of Appeal decision
Work injury damages; whether the Club breached the duty of care it owed to the Worker as an employee of the Club; whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins; whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence.
Decision date: 31 October 2019 | Before: Gleeson JA, Brereton JA and Emmett AJA.
Supreme Court decision
Administrative law; workers compensation; decision of Approved Medical Specialist; decision of Medical Appeal Panel of the Workers Compensation Commission; decision of Arbitrator of the Workers Compensation Commission; where Arbitrator found error but did not set aside Panel decision; 15 grounds of review; procedural fairness; whether error of law on the face of the record; whether jurisdictional error; whether an extension of time should be granted; decision of the Arbitrator and Appeal Panel quashed; matter remitted to the Commission to be determined according to law.
Decision date: 8 November 2019 | Before: N Adams J
Drawing of inferences: Luxton v Vines  HCA 19; 85 CLR 352, weight of evidence: Shellharbour City Council v Rigby  NSWCA 308, expert evidence in the Commission: Hancock v East Coast Timber Products Pty Limited  NSWCA 11; 8 DDCR 399 and associated authorities, dealing with competing expert evidence: Hume v Walton  NSWCA 148, Eckersley v Binnie (1988) 18 Con LR 1 and associated authorities, procedural fairness and warning parties of an Arbitrator’s proposed course: Kuhl v Zurich Financial Services Australia Ltd  HCA 11; 243 CLR 361, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 63; 231 ALR 592; 81 ALJR 515.
Decision date: 4 November 2019 | Member: Deputy President Michael Snell
Section 11A of the 1987 Act; worker suffered psychological injury in the course of his employment; whether respondent’s actions with respect to performance appraisal and/ or discipline were wholly or predominantly caused the worker’s injury; Held - the injury was predominantly caused by the respondent’s action with regards to performance appraisal and discipline. Also held - those actions by the respondent were reasonable; Department of Education and Training v Sinclair  NSWCA 465, Hamad v Q Catering Limited  NSWWCCPD 6 (15 March 2017) followed; Ritchie v Department of Community Services  16 NSWCCR 727 discussed.
Decision date: 1 November 2019 | Member: Arbitrator Cameron Burge
Worker injured lumbar spine in fall on stairs of a double decker bus on a journey to work; section 10(3A) of the 1987 Act; worker asked to work at a different location and time to her usual pattern; claimed that bus was the only feasible method of transport to work; Bina v ISS Property Services Pty Limited discussed; Held – Arbitrator not satisfied that there was a real and substantial connection between the worker’s employment and the accident or incident out of which the personal injury arose; award for the respondent.
Decision date: 4 November 2019 | Member: Arbitrator Rachel Homan
Section 60(5) application for third surgical procedure on constitutional maltracking patella aggravated by subject injury; worker too young for TKR; believes unrealistically that surgery will return him to pre-injury state; Diab applied; application allowed.
Decision date: 5 November 2019 | Member: Arbitrator John Wynyard
Worker sought assessment by AMS as to whether his WPI was greater than 20%; compensated under the Table of Disabilities as a result of a lumbar spine injury in 1993; claimed that weight gain since 1993 caused a consequential condition in the thoracic spine and legs, as a result of oedema; Held - while the back injury had led to weight gain, not satisfied that it had resulted in the consequential conditions claimed, no order.
Decision date: 6 November 2019 | Member: Arbitrator Catherine McDonald
Claim for permanent impairment compensation; injuries to cervical spine, lumbar spine and left shoulder accepted, but claim in respect of consequential condition in right shoulder disputed; Kooragang Cement v Bates, Kumar v Royal Comfort Bedding discussed; Held - not satisfied that the condition in the worker’s right shoulder was a consequence of her left shoulder injury.
Decision date: 6 November 2019 | Member: Arbitrator Catherine McDonald
Worker sustained injury in 2002 and was presently being weekly compensation by the Insurer; whilst there was no dispute about the worker’s PIAWE, the dispute concerned the date from which indexation commenced in accordance with section 82A of the 1987 Act; Held - indexation commenced from 1 April 2013 in accordance with the order published by the Authority pursuant to section 82A(4) of the 1987 Act; discussion about principles of statutory interpretation involving purported inconsistency between delegated and substantive legislation: Mine Subsidence Board v Wambo Coal Pty Ltd; Plaintiff M47-2012 v Director-General of Social Security.
Decision date: 6 November 2019 | Member: Arbitrator John Harris
Medical Appeal decisions
Worker appealed AMS’ assessment of her cervical spine as falling within DRE I on basis the AMS did not have regard to her non-verifiable radicular complaints; no evidence appellant ever had non-verifiable radicular complaints; Appeal Panel found no error with AMS assessment of appellant’s cervical spine; appellant also appealed AMS assessment of her upper and lower MAC on basis AMS did not have proper regard to her signs and symptoms; Panel found no evidence appellant suffering any disease of digestive tract at time of assessment; constipation is symptom not a sign; Appeal Panel found no error with AMS’ assessment of appellant’s digestive tract; MAC confirmed.
Decision date: 1 November 2019 | Panel Members: Arbitrator Marshal Douglas, Dr Richard Crane and Dr James Bodel | Body system: Cervical spine, right upper extremity, digestive system
AMS finding of no section 323 deduction challenged; admission of fresh evidence; error in finding that no deduction should be made pursuant to section 323 of the 1998 Act where subject injury had been found to fall within section 4(b)(ii) in the earlier proceedings; appellant insurer submitted Certificate of Determination in earlier proceedings should be admitted as additional evidence to establish a pre-existing condition; respondent worker did not dispute that subject injury was an “aggravation injury”; admission declined as not within section 328(3) of the 1998 Act; evident from contemporaneous MRI scan that worker suffered an asymptomatic degenerative condition in the lumbar spine; Held – on the evidence of the report of the treating specialist and radiology that conclusion that there was no contribution to the impairment (Lumbar Category DRE III) was not open to the AMS on the evidence; consideration of Cole v Wenaline, Vitaz v Westform; MAC revoked and lumbar spine impairment assessed with 1/10th deduction pursuant to section 323 the 1998 Act.
Decision date: 4 November 2019 | Panel Members: Arbitrator William Dalley, Dr James Bodel and Dr Mark Burns | Body system: Lumbar spine
Injury to the lumbar spine; criteria for finding of persistent radiculopathy post-surgery; criteria in paragraph 4.27 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; AMS found one major criteria; AMS erred because there was also one minor criteria present; MAC revoked.
Decision date: 4 November 2019 | Panel Members: Arbitrator Jane Peacock, Dr Drew Dixon and Dr Mark Burns | Body system: Lumbar spine
Admission of fresh evidence; demonstrable error; AMS concluded that lumbar pathology was not causally related to the subject injury but assessed DRE Lumbar Category I; additional evidence by way of further statement disputing history said to have been provided to the AMS upon examination; additional evidence not admitted as the error in the history recorded by the AMS was patent; Appeal Panel accepts that AMS fell into error with regard to history of onset of symptoms and in concluding that there was no condition in the lumbar spine resulting from the subject injury where this had been the subject of a finding by the Commission; discussion of Waikara v Registrar of the Workers Compensation Commission & Ors, Haroun v Rail Corporation New South Wales, Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd, State of New South Wales v Bishop; role of the AMS discussed; error established; on reassessment DRE Lumbar Category I found to be appropriate; MAC confirmed.
Decision date: 4 November 2019 | Panel Members: Arbitrator William Dalley, Dr Brian Noll and Dr David Crocker | Body system: Right lower extremity and lumbar spine
Psychological Injury; appellant alleged error in deduction made by AMS under section 323 for a pre-existing condition; available evidence did not support approach of the AMS who assessed the pre-existing impairment under the Permanent Impairment Rating Scale; Appeal Panel made deduction under section 323 of one-tenth; MAC revoked.
Decision date: 5 November 2019 | Panel Members: Arbitrator Jane Peacock, Dr Lana Kossoff and Dr Patrick Morris | Body system: Psychological
Peachey v Bildom Pty Ltd (incorrectly sued as Quality Siesta Resort Pty Ltd and Quality Hotel)  NSWWCCMA 162
Psychological injury; AMS assessed 13% WPI; appeal in M1-1987/19 by worker in respect to a failure to make an adjustment for effects of treatment, error in rounding and basing the assessment of impairment on an incorrect history in relation to concentration, persistence and pace and travel; appeal in M2-1987/19 by employer in relation to the PIRS categories of self-care and personal hygiene, concentration, persistence and pace and employability; no error in no adjustment for effects of treatment or assessment of the PIRS categories; MAC revoked as rounding error.
Decision date: 5 November 2019 | Panel Members: Arbitrator Carolyn Rimmer, Dr Douglas Andrews and Dr Lana Kossoff | Body system: Psychological