Legal Bulletin No. 22
Issued 22 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.
Whether certain findings of fact made by the Senior Arbitrator were available on the evidence; Davis v Council of the City of Wagga Wagga; regarding contents of medical notes considered.
Decision date: 19 November 2019 | Member: President Judge Phillips
Psychological injury; respondent has not established defence under section 11A of the 1987 Act as the injury was not wholly or predominantly caused by employer’s reasonable action in respect of discipline; Northern NSW Local Health Network v Heggie and Hamad v Q Catering Limited applied; injury found under section 4(b)(ii) of the 1987 Act.
Decision date: 14 November 2019 | Member: Senior Arbitrator Josephine Bamber
Whether worker suffered new psychological injury against background of existing condition; whether any injury connected to employment; whether disease or frank injury; section 9A and/or main contributing factor; incapacity; whether incapacity and section 60 expenses the result of work injury; Attorney General’s Department v K Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates and Comcare v Martin discussed; Held – worker suffered psychological injury in the course of her employment with the respondent.
Decision date: 14 November 2019 | Member: Arbitrator Ross Bell
Application for declaration that lumbosacral interbody fusion represented reasonably necessary treatment resulting from injury in January 2010; whether the proposed surgery reasonably necessary with respect to the pathology; whether proposed surgery causally related to the subject injury; history of continuing pain becoming worse in 2018; application of Rose v Health Commission (NSW), Pelama Pty Ltd v Blake, Diab v NRMA Ltd, Tudor Capital Australia Pty Ltd v Christensen; continuous history of pain with conservative treatment having failed to produce lasting improvement; conflict in expert evidence; opinion of treating doctor preferred as alternatives suggested had not been effective; chain of causation unbroken by length of time, the absence of complaints to general practitioner for a number of years or intervening employment; Held – subject injury resulted in the need for the proposed surgery and declaration accordingly.
Decision date: 15 November 2019 | Member: Arbitrator William Dalley
Significance of injury to lumbar spine; whether proposed surgery in the form of lumbar interbody fusion at L4/5 augmented by a posterior pedicle screws reasonably necessary as a result of injury on 23 June 2017; factual and medical evidence weighed in the balance; worker’s medical evidence preferred; MAC upheld; evidence established on the balance of probabilities that the injury consisted of the aggravation of disease condition at L4/5 to which the employment was the main contributing factor; surgery proposed by worker’s treating neurosurgeon considered reasonably necessary; Held - award for the worker.
Decision date: 15 November 2019 | Member: Arbitrator Jane Peacock
Industrial deafness claim allegedly arising from employment in own company as carpenter/ builder; whether applicant a worker; whether respondent was last noisy employer; whether applicant’s claim was in time or there was a reasonable excuse for delay in making claim; Held - applicant was a worker as defined in section 4 of the 1998 Act; respondent was the last noisy employer of the worker; respondent to pay for reasonable costs of hearing aids; balance of matter remitted to Registrar for referral to AMS to determine whole person employment.
Decision date: 18 November 2019 | Member: Arbitrator Cameron Burge
Section 66 lump sum compensation claim for permanent impairment of various body systems, where only injury to cervical spine was disputed; lack of contemporaneous evidence of complaints of cervical spine symptoms; Held - Arbitrator not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that applicant established that there was a definite or distinct physiological change or disturbance in her cervical spine for the worse which, if not sudden, was at least identifiable, arising out of or in the course of her employment with the respondent.
Decision date: 19 November 2019 | Member: Arbitrator Anthony Scarcella
Whether applicant was a worker; worker suffered burns at employer’s premises; respondent denied any employment relationship; Held - applicant was a worker per section 4 of the 1998 Act; consequential condition; worker alleged consequential condition to lumbar spine as result of altered gait; Held - worker had not discharged onus of proof regarding existence of consequential condition; award for respondent on claim for consequential condition; balance of claim remitted to Registrar for referral to Approved Medical Specialist.
Decision date: 19 November 2019 | Member: Arbitrator Cameron Burge
Dispute as to whether the employer, who paid for lumbar surgery, was estopped from disputing that the worker sustained a lumbar injury; dispute as to whether the worker had recovered from an injury to his thoracic spine; jurisdiction of the Commission to determine lump sum claims; The Commonwealth of Australia v Verwayen; Department of Education and Training v Sinclair; Begnell v Super Start Batteries Pty Ltd; Peric v Chui Lee Hyuang Ho Shin Jong Lee and Mi Ran tlas Pure and Delicious Healthy & Anor; Workcover NSW v Evans; Jaffarie v Quality Castings Pty Limited; Bindah v Carter Harvey Wood Products Australia Pty Limited; Etherton v ISS Property Services Pty Limited, discussed and applied; Held - employer not estopped by conduct; worker did not sustain lumbar injury; thoracic injury not resolved; Commission has jurisdiction to determine, but not assess, a lump sum claim; lump sum claim remitted to Registrar for referral to an Approved Medical Specialist.
Decision date: 19 November 2019 | Member: Senior Arbitrator Glenn Capel
Medical Appeal decisions
Whether assessment made on the basis of incorrect criteria; whether demonstrable error on face of Certificate; grounds of appeal; whether AMS erred in making deduction greater than one-tenth; section 323 of 1998 Act; extent of evidence prior to period of employment to establish proportion of pre-existing injury or condition forming part of impairment; found insufficient evidence to support deduction greater than one-tenth; section 323(2) applicable; one-tenth not at odds with the evidence; Cole v Wenaline Pty Ltd, Fire & Rescue NSW v Clinen and Vitaz v Westform (NSW) Pty Limiteddiscussed and applied; Held - MAC revoked.
Decision date: 14 November 2019 | Panel Members: Arbitrator Ross Bell, Dr Greg McGroder and Dr James Bodel | Body system: back, right leg and left leg
Agreement that worker suffered injury to right shoulder and brachial plexus when her arm was forced backwards; no issue with assessment of shoulder; assessment of biracial plexus injuries under AMA 5 and application of Tables; Held - AMS was correct to apply
table 16-13 when mild impairment was isolated to C6 nerve; MAC confirmed.
Decision date: 15 November 2019 | Panel Members: Arbitrator Catherine McDonald, Dr James Bodel and Dr Gregory McGroder | Body system: right upper extremity (shoulder and brachial plexus)
Demonstrable error conceded; error in examination measurement record; re-examination; Drosd applied; Held - MAC revoked; 31% WPI substituted for 17% WPI.
Decision date: 15 November 2019 | Panel Members: Arbitrator John Wynyard, Dr Gregory McGroder and Dr Brian Noll | Body system: left lower extremity (ankle) right lower extremity (ankle and subtalar joints) and scarring
Issue of injury to left shoulder determined by arbitrator; worker alleged that AMS purported to “decide” injury in relation to right shoulder and both knees, made a deduction of ten-tenths pursuant to section 323 of the 1998 Act in respect of the right shoulder, and should have found radiculopathy in the cervical spine; Held - MAC revoked and Appeal Panel assessed 8% WPI for the right upper extremity (shoulder) and deducted one-tenth pursuant to section 323 of the 1998 Act; Appeal Panel agreed with assessment by AMS of both lower extremities and cervical spine.
Decision date: 20 November 2019 | Panel Members: Arbitrator Carolyn Rimmer, Dr Drew Dixon and Dr Mark Burns | Body system: cervical spine, left upper extremity, right upper extremity, lumbar spine, left lower extremity and right lower extremity
Assessment of whole person impairment of the lumbar spine in respect of injuries sustained on 19 July 2001, 9 August 2004, 24-28 August 2007 and 10 September 2007; alleged failure to make a deduction pursuant to section 323 of the 1998 Act; Held - Appeal Panel satisfied on the evidence no deduction was required; MAC confirmed.
Decision date: 20 November 2019 | Panel Members: Arbitrator Deborah Moore, Dr Mark Burns and Dr John Ashwell | Body system: lumbar spine