Legal Bulletin No. 3
Issued 19 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.
Court of Appeal decision
Appeal against a Presidential Decision; construction of s 38A of the 1987 Act; where appellant a worker with highest needs; whether Arbitrator made finding that appellant able to return to pre-injury employment; whether appellant entitled to compensation under s 38A of the 1987 Act; appeal allowed; matter remitted to the Commission; respondent to pay the appellant’s costs.
Decision date: 17 July 2019 | Before: Meagher JA, White JA, and Simpson AJA
Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; ‘exceptional circumstances’; ‘demonstrable and substantial injustice’; Section 60 of the Workers Compensation Act 1987; whether proposed medical treatment is reasonably necessary.
Decision date: 5 July 2019 | Member: President Judge Gerard Phillips
Causation of a consequential condition.
Decision date: 10 July 2019 | Member: Deputy President Michael Snell
Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees  HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193, Grimson v Integral Energy  NSWWCCPD 29, Hawke v Stanyer & ors t/as Stanyer Partnership  NSWWCCPD 208, Fletchers International Exports Pty Limited v Regan  NSWWCCPD 7, O’Callaghan v Energy World Corporation Ltd  NSWWCCPD 1 applied; Sheridan v Coles Supermarkets Australia Pty Limited  NSWWCCPD 3, Anderson v Secretary, Department of Education  NSWWCCPD 32, Lambropoulos v Qantas Airways Limited  NSWWCCPD 17 discussed and applied.
Decision date: 11 July 2019 | Member: Deputy President Elizabeth Wood
Child protection worker alleged left shoulder injury as consequential condition to right shoulder injury caused by heavy lifting in employment; employer also disputed low back injury as a consequential condition arising from left knee injury; worker alleged overuse of left arm at work as result of injury and relied on medical reports; respondent disputed credit of applicant relying on surveillance reports and absence of report from treating orthopaedic surgeon; inferences drawn must relate to probable facts: Lithgow City Council v Jackson; although Arbitrator did not make adverse finding as to credit, held no consequential condition in left shoulder owing to insufficient evidence; Arbitrator accepted evidence of chronic limp and low back pain; award for applicant on lower back injury and s 60 medical expenses; award for respondent on left shoulder injury.
Decision date: 4 July 2019 | Member: Arbitrator Michael Perry
Lumbar spine injury; applicant alleged he delivered food stock for respondent; applicant alleged injury arose out of two falls working for respondent; whether applicant is a worker or deemed worker under ss 4 and 5 of the 1987 Act; whether applicant suffered injury arising out of or in course of employment under s 4 of the 1987 Act; applicant submitted he was paid on weekly basis and provided Tax File Number to respondent; respondent submitted he never paid applicant for any work; Arbitrator held that applicant was worker based on applicant witnesses’ statements; applicant submitted he had constant back pain that was treated by medication; respondent submitted no contemporaneous medical evidence and applicant convicted of assault on respondent and credit diminished; Arbitrator held lack of evidence to establish injury arose out of employment; award for respondent.
Decision date: 4 July 2019 | Member: Arbitrator Ross Bell
Deep vein thrombosis and multiple extensive pulmonary emboli; whether the DVT resulted from an injury arising out of or in the course of employment; whether the applicant has any work capacity; Browne v Dunn and Bonica v Piacenti & Sons Pty Ltd discussed; respondent’s medico-legal opined that there was no causal nexus between multiple extensive pulmonary emboli in both lungs and a DVT in the left leg and the applicant’s employment; arbitrator accepted the evidence of the respondent’s IME that the cause of DVT can be multifactorial and idiopathic; held applicant failed to establish on the balance of probabilities that the DVT sustained was caused by his employment; award for the respondent.
Decision date: 5 July 2019 | Member: Arbitrator John Wynyard
Accepted right knee injury; disputed injuries to lumbar and cervical spine; applicant relied on orthopaedic surgeons’ reports that myelomania takes time to develop and accident aggravated injury; respondent relied on medical reports finding that injuries not related to accident; six authorities that caution against use of medical records and history to undermine witness credibility cited, including Davis v Council of the City of Wagga Wagga; records may be used as evidence of workers’ complaints: Azzopardi v Tasman UEB Industries Ltd; use of word “possible” in medical report not inconsistent with finding that causation is “probable”: Tudor Capital v Christensen; Arbitrator held that in the absence of neck pain after the incident, it was difficult to see how the pre-existing injuries were affected by the incident; claim for permanent impairment compensation dismissed; award for respondent.
Decision date: 5 July 2019 | Member: Arbitrator Paul Sweeney
Injury to the lumbar spine; exempt worker; whether the respondent is entitled to credit for maternity leave payments made for the period from 23 March 2019 to 27 May 2019 on weekly compensation owing for that period; issue in regard to the relevant rate for weekly compensation pursuant to s 36; s 42(6) provides that amounts paid for shift work, overtime, penalty rates and special expenses are disregarded; applicant submitted that leave brought about by pregnancy does not affect entitlement to compensation during the period of incapacity: Miller v NSW Police Service (No.2); Roads & Traffic Authority of NSW v Smith discussed in relation to section 46; payment of maternity leave benefits have no association with the receipt of weekly compensation payments due to incapacity for work; held current weekly wage pursuant to s 42(1)(a) is $1,358.50; held respondent pay the applicant weekly compensation pursuant to s 36; respondent to pay the applicant’s costs as agreed or assessed; arbitrator declined to order that the respondent have credit for payments of maternity leave.
Decision date: 5 July 2019 | Member: Arbitrator John Harris
Injury to the right lower extremity; injury sustained when the applicant suffered a seizure causing him to fall on the ground; respondent disputes that the applicant’s employment was a substantial contributing factor to the injury; Marrickville RSL Club Ltd v Mukesh and Badawai discussed in relation to s 9A; employment does not have to be the substantial contributing factor to injury but a substantial contributing factor; arbitrator satisfied on the balance of probabilities that the connection to employment was real and of substance; held matter will be remitted to the Registrar for referral to an AMS.
Decision date: 8 July 2019 | Member: Arbitrator Jane Peacock
Psychological/Psychiatric injury; whether the applicant has any work capacity; what suitable employment is the applicant suited to; arbitrator noted that surveillance evidence recorded no signs of symptoms identified by the applicant’s treating IME; applicant’s treating IME noted that the applicant had no work capacity and that in the near future he would have some capacity to perform suitable duties in a sedentary role; applicant submitted that the absence of WorkCover certificates could be explained by the fact that the applicant had become an aged pensioner; arbitrator accepted the applicant’s claim for weekly payments as there was no relevant evidence from the respondent; award in favour of the applicant on the basis that he had no current employment over the claimed period; held respondent to pay weekly payments pursuant to s 36 and s 37; award for s 60 expenses
Decision date: 9 July 2019 | Member: Arbitrator John Wynyard
Applicant claimed injuries arose from moving heavy bucket; whether the applicant injured his right hip and groin/hernia; whether employment was a substantial or main contributing factor; whether insurer made Work Capacity Decision; applicant submitted that insurer could not simply assert letter was Work Capacity Decision: Birch v Olympic Aluminium Pty Ltd; respondent submitted that insurer letter was prima facie Work Capacity Decision under s 43(1)(d) of the 1987 Act as a decision about Pre-Injury Average Weekly Earnings; principles regarding onus of proof in Department of Education & Training v Ireland discussed and applied to absence of clinical assessment of employment causing hernia; Senior Arbitrator held that employment main contributing factor to aggravation of pre-existing asymptomatic disease’ applying Kooragang common sense test and principles in Cant v Catholic Schools Office and Federal Broom Co Pty Ltd v Semlitch; Senior Arbitrator held insurer letter was not Work Capacity Decision as it was not in conformity with SIRA Guidelines for Claiming Workers Compensation; Senior Arbitrator held applicant had no work capacity for one period and some capacity for others; award for applicant.
Decision date: 10 July 2019 | Member: Senior Arbitrator Glenn Capel
Medical Appeal decisions
Injury to the thoracic spine and hernia; injury sustained when the respondent strained his back while working for the employer; AMS considered that because the respondent had not achieved “maximal” medical improvement he could not assess the respondent’s whole person impairment; AMS noted that the respondent worker needs to lose weight before undergoing surgery to repair the hernia; appellant employer submitted that the respondent has made no effort for several years to reduce his weight or stop smoking and has not sought a referral for bariatric surgery; Panel satisfied that the AMS did not err by concluding that further medical treatment for the respondent was appropriate; Panel held that the AMS did not make an error in exercising his discretion under s 322(4); MAC confirmed.
Decision date: 4 July 2019 | Panel: Arbitrator Marshal Douglas, Dr John Dixon-Hughes and Dr Neil Berry | Body System: thoracic spine and hernia
Claimed injuries to shoulder and elbow; appellant submitted demonstrable error in that elbow should have been assessed as well as shoulder and no s 323 deduction for condition claimed to be part of a disease injury; Panel held no demonstrable error as it did not accept that appellant had disease injury referred as result of lifting heavy item and agreed with medical assessment of AMS that a one-third deduction was appropriate for the pre-existing condition; MAC confirmed.
Decision date: 9 July 2019 | Panel: Arbitrator Grahame Edwards, Dr Sophia Lahz and Dr Drew Dixon | Body System: Right Upper Extremity (elbow and shoulders)
Work Capacity Dispute; psychological injury; whether an interim payment direction for weekly payments should be made pursuant to Chapter 7 Part 5 Division 2 of the 1998 Act; whether the applicant’s capacity to earn in suitable employment provides her with any entitlements to weekly compensation pursuant to s 37 of the 1987 Act; delegate noted that the last work capacity decision had a current work capacity for employment of eight hours, five days per week as an “administrative officer”; applicant’s treating psychologist opined that the applicant would benefit from returning to work; delegate satisfied that the applicant has capacity to undertake suitable employment; applicant’s work capacity is limited only by her inability to attend the Mr Druitt or Blacktown office; delegate held that the applicant’s wishes to work closer to her family does not alter the application of s 32A of the 1987 Act; applicant’s capacity to earn in the suitable employment as a case worker is most likely to be at or near her pre-injury average weekly earnings; held no entitlements to weekly compensation; held application for an interim payment direction dismissed.
Decision date: 11 July 2019 | Delegate: Arbitrator Gerard Egan