Legal Bulletin No. 5
Issued 02 August 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 proposed surgery is reasonably necessary – s 60 of the Workers Compensation Act 1987; Rose v Health Commission (NSW)  NSWCC 2; 2 NSWCCR 32, Diab v NRMA Ltd  NSWWCCPD 72 discussed and applied; alleged error of fact; Minister for Immigration and Citizenship v SZMDS  HCA 16; 240 CLR 611; Shellharbour City Council v Rigby  NSWCA 308, Fox v Percy  HCA 22; 214 CLR 118, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Micallef v ICI Australia Operations Pty Ltd  NSWCA 274 applied.
Decision date: 19 July 2019 | Member: Deputy President Elizabeth Wood
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) – arising out of employment”, “in the course of employment”; s 9A of the 1987 Act – substantial contributing factor; Hatzimanolis v ANI Corporation Ltd  HCA 21; 173 CLR 473; Comcare v PVYW  HCA 41; 303 ALR 1; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd  NSWCA 324; 75 NSWLR 503; 7 DDCR 75 discussed.
Decision date: 22 July 2019 | Member: Deputy President Elizabeth Wood
Application of Paric v John Holland (Constructions) Pty Ltd  HCA 58; Mason v Demasi  NSWCA 227; Nguyen v Cosmopolitan Homes  NSWCA 246.
Decision date: 22 July 2019 | Member: President Judge Phillips
An assistant in nursing sustained undisputed right shoulder injury together with scarring due to injury sustained from lifting patient; applicant further alleged consequential injuries to lower gastrointestinal tract and overuse injury to left shoulder; respondent conceded that medical opinion justified referral of the claim with respect to gastrointestinal condition; Kooragang Cement Pty Ltd v Bates test applied to overuse injury; an injury can have more than one cause: Lagana v Australian Retirement Partners Realty Pty Ltd, Calman v Commissioner for Police and Wyllie-Gray v Fitness First Australia Pty Ltd; Arbitrator held brief report supported consequential condition in left shoulder; matter remitted to Registrar for referral to an Approved Medical Specialist; award for applicant.
Decision date: 18 July 2019 | Member: Arbitrator Catherine McDonald
Applicant fractured his right tibia when he fell from a ladder; no dispute regarding the right lower extremity; whether applicant sustained injury to the lumbar spine; applicant had been receiving treatment for back pain prior to the subject injury; applicant failed to disclose to his treating neurosurgeon that he injured his back in the subject injury; Arbitrator noted that the first piece of evidence confirming that the applicant injured his back was contained in his statement, 12 years after the subject injury; lack of contemporaneous support for the allegation of injury as the applicant did not report the injury to his GP or his treating neurosurgeon; Arbitrator not satisfied on the balance of probabilities that the applicant injured his back; award for the respondent.
Decision date: 18 July 2019 | Member: Arbitrator Jane Peacock
Applicant sustained left shoulder injury as senior firefighter with NSW Fire and Rescue; Schedule 6, Part 19H, clause 25 of the 1987 Act applied; determination of average weekly amount able to be earnt in suitable employment under former s 43A(1) of the 1987 Act; whether weekly payments calculated should be reduced pursuant to s 40(1) of the same Act; steps identified in Mitchell v Central West Health Service applied; applicant submitted that Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd should be applied to assess the earnings in period he was employed rather than the earnings since he took over the business, which were less than award wage; Akora Holdings Pty Ltd v Ljubicic applied; Arbitrator held respondent to pay applicant $440.17 per week from 13 May 2019 to date and continuing; costs awarded against respondent; award for applicant.
Decision date: 19 July 2019 | Member: Arbitrator William Dalley
Applicant employed as batch operator and forklift driver by respondent; applicant injured little finger when using metal bar to try to make loud noise on rack in “batch room” to frighten co-worker who had played similar practical joke weeks earlier; whether employment was substantial contributing factor to injury under s 9A of the 1987 Act; applicant submitted it was only through her employment that she came into contact with co-worker; respondent submitted applicant’s conduct not within her duties; Arbitrator held respondent applied too narrow a construction of employment, considering Dayton v Coles Supermarkets Pty Ltd; Arbitrator held that applicant was not acting properly in scope of her employment and distinguished JR & DI Dunn Transport Pty Ltd v Wilkinson and Tarry v Warringah Shire Council as applicant’s actions occurred weeks after original practical joke; Arbitrator applied Stojkovic v Telford Management Pty Ltd to find applicant acting against employer interests; Muscat v Woolworths Ltd distinguishes as applicant’s conduct not ancillary to employment; Arbitrator not satisfied s 9A met; award for respondent.
Decision date: 19 July 2019 | Member: Arbitrator Rachel Homan
Applicant, an armed Vehicle Operator, tripped and twisted right ankle on metal grate; applicant underwent laminectomy; applicant further claimed consequential injuries to left ankle and lumbar spine; applicant submitted that right knee injury altered gait and put weight on left knee and back; respondent submitted lumbar spine condition was degenerative condition; principles of causation and no need for corroboration considered in Australian Traineeship System v Turner and Bouchmouni v Bakkos Matta t/as Western Red Services; credit of applicant not in issue; Arbitrator found no real inconsistencies in medical evidence; Arbitrator disagreed with medical expert who found that applicant’s symptoms had settled; s 60 general award made; Arbitrator held there was consequential injuries in lumbar spine and left knee and remitted matter to Registrar for referral to AMS; award for applicant.
Decision date: 22 July 2019 | Member: Arbitrator Philip Young
Customer service assistant/cleaner fell backwards on floor; whether applicant sustained s 4(a) injury to lumbar spine in course of employment; entitlement to s 60 medical expenses; issues of credit; respondent submitted that clinical notes erroneously recorded that there was no prior history of back pain; respondent’s submissions rejected by Senior Arbitrator finding that applicant had credit and clinical notes were accurate and supported applicant’s claim; Senior Arbitrator applied onus of proof test in Nguyen v Cosmopolitan Homes (NSW) Pty Limited and held that, on balance of probabilities, applicant had not recovered from injury to back sustained in fall; Senior Arbitrator held that treatment was reasonably necessary applying Diab v NRMA Ltd; Senior Arbitrator applied Kirunda v State of New South Wales (No 4) and Lithgow City Council v Jackson to find that medical evidence established back injury as a result of employment; condition can have multiple causes: Murphy v Allity Management Services Pty Ltd; award for applicant.
Decision date: 23 July 2019 | Member: Senior Arbitrator Josephine Bamber
Injuries to both upper extremities (thumbs), both lower extremities (knees) and lumbar spine; whether the applicant’s employment was the main contributing factor to his injuries; applicant’s treating orthopaedic surgeon opined that the applicant’s work environment was the main contributing factor; Arbitrator satisfied that the arduous work and long hours were the aggravating factors that led to his injury; award for the applicant; matter remitted to the Registrar for referral to an AMS.
Decision date: 23 July 2019 | Member: Arbitrator John Wynyard
Deep Vein Thrombosis; primary psychological injury; whether the applicant suffered DVT arising out of or in the course of his employment; whether the applicant suffered an injury pursuant to s 4(b)(i) or 4(b)(ii) of the 1987 Act; whether employment was the main contributing factor; whether the applicant suffered a primary psychological injury arising out of or in the course of his employment; whether employment was a substantial contributing factor to the injury: Zickar and Kennedy Cleaning discussed; Arbitrator satisfied that the DVT developed over a short period and comprised a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”; Arbitrator satisfied that the periods of immobility in the applicant’s work was a substantial contributing factor to the DVT injury; s 65A discussed; Watkins discussed; no insistent presence of the shock of the DVT visible as the cause of the psychological disorder; held applicant suffered a secondary psychological injury pursuant to s 65A; held that the applicant suffered a personal injury of DVT on 30 June 2016 pursuant to s 4(a); order for s 60 expenses.
Decision date: 23 July 2019 | Member: Arbitrator Ross Bell
Medical Appeal decisions
Lumbar spine injury; AMS assessed 12% WPI and deducted one third under s 323 on the basis of pre-existing condition; AMS noted multi-positional AMRI scan suggesting multilevel disc degenerative changes; appellant worker submitted insufficient reasons for making deduction of more than one tenth; applicant relied on history that he did suffer intermittent pain before the injury but on opposite side; medico-legal reports and scans showed central and left-sided disc prolapse and existing disc lesion; respondent submitted no error in AMS’s excercise of clinical judgment; Panel concluded that worker had reported pain in lumbar spine after 2006 and before workplace injury in 2016; Panel held that one third deduction was appropriate based on medical evidence; MAC confirmed.
Decision date: 19 July 2019 | Panel: Arbitrator Catherine McDonald, Dr David Crocker and Dr Brian Noll | Body System: Lumbar spine
Injury to lumbar and thoracic spine; appellant submitted that the AMS erred when assessing DRE Category II instead of Category III for thoracic spine due to the presence of vertebral body fractures; appellant further submitted that the AMS erred in his assessment of the lumbar spine; Panel noted presence of significant pre-existing injuries to the thoracic spine; Panel held that the AMS was open to conclude that there was no indication of continuing significant lumbar pathology and no indication of radiculopathy; MAC confirmed.
Decision date: 22 July 2019 | Panel: Arbitrator Deborah Moore, Dr Philippa Harvey-Sutton and Dr J Brian Stephenson | Body System: Lumbar spine
Lumbar spine injury; AMS assessed DRE lumbar category IV (20% WPI) plus 1% for limitation in activities of daily living subject to 1/10 deduction for pre-existing arthritis; under s 323 of the 1998 Act; respondent alleged demonstrable error in the assessment of radiculopathy, error in deduction under s 323, and error in failure to assess impact of subsequent non-work-related injuries; AMS finding of slight diminution of sensation was held to be clear clinical finding made on day of assessment; AMS findings met criteria for radiculopathy in para 4.27 of the Guidelines; Panel held that CT scan taken after incident showed only minor degenerative changes prior to workplace injury; Panel held no demonstrable error in s 323 deduction as defined by Vannini v Worldwide Demolitions Pty Ltd; Panel applied Calman v Commissioner of Police to hold that a subsequent non-work injury does not prevent compensation for workplace injury; Panel held that appellant’s apportionment submission relied on case, Leach, that supported respondent but to extent
the case did not it was inconsistent with binding authority, Johnson v NSW Workers Compensation Commission; appellant submission that there was a novus actus rejected; MAC confirmed.
Decision date: 24 July 2019 | Panel: Arbitrator John Harris, Dr Brian Noll and Dr Drew Dixon | Body System: Lumbar spine