Legal Bulletin No. 8
Issued 23 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.
Supreme Court decision
Appellant suffered an injury to his left hand on 21 October 2015 in the course of his employment with the defendant while using a circular saw; partial amputation through the proximal phalanx of his left little finger and severed tendons in the fourth and fifth fingers; Apellant underwent multiple surgical procedures including the taking of skin grafts from his left thigh which were then grafted to the back of his left hand; Appellant made a claim for lump sum compensation and was assessed as suffering from a 10% WPI of the left upper extremity and consequential scarring of 3% WPI; Appellant retained Professor Alan Meares who expressed the view that Mr Gray’s scarring equated to 9% WPI and a 13% WPI of the left hand; Appellant appealed to Supreme Court in respect of scarring finding; Judicial review; application to set aside Appeal Panel decision on grounds of jurisdictional error or error of law on the face of record; whether medical Appeal Panel entitled to rely on medical examination by one of its members; significance of “clinical judgment”; whether Panel failed to make findings or give reasons; Campbelltown City Council v Vegan considered; whether Panel failed to address substantial argument; whether appeal panel misapplied workers compensation guidelines; Held - APPEAL DISMISSED.
Decision date: 22 August 2019 | Before: Leeming JA
District Court decision
Plaintiff alleged to have sustained psychological injury as a result of bullying and harassment; work injury damages; whether statement of claim materially different to draft pleading attached to plaintiff’s pre-filing statement – meaning of “materially different” in context of attached pleading; Kirby v Sanderson Motors Pty Ltd considered; application may be disposed of on the basis that there is at least one material difference in the version of the pre-filing statement pleading and the statement of claim; Held that pursuant to s 318(1), the statement of claim filed is struck out.
Decision date: 9 August 2019 | Before: Abadee DCJ
Section 11A(1) of the 1987 Act – factors to be considered in an assessment of whether action with respect to discipline was reasonable; Northern NSW Local Health Network v Heggie  NSWCA 255; 12 DDCR 95, Irwin v Director General of School Education Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, Jeffery v Lintipal Pty Ltd  NSWCA 138 considered and applied; s 32A of the 1987 Act – “suitable employment” – Cronje v Leighton Contractors Pty Ltd  NSWWCCPD 16 discussed, Wollongong Nursing Home Pty Ltd v Dewar  NSWWCCPD 55 applied; s 37 of the 1987 Act – calculation of the ability to earn.
Decision date: 9 August 2019 | Member: Deputy President Elizabeth Wood
Psychological condition; injury sustained when the applicant was working as a corrections employee who alleged that he was bullied at work; whether psychological injury under s 4 established; Arbitrator not satisfied that the applicant’s reaction was entirely one of perception: Attorney General’s Department v K; Arbitrator satisfied that on the balance of probabilities that the medical evidence supports the applicant’s case that he suffered a major depressive disorder; Arbitrator held that the applicant’s employment was the main contributing factor to his injury within the meaning of s 4 (b)(i) and/or s 4 (b)(ii); award for applicant for payment of weekly compensation pursuant to ss 36(1) and s 37(1); liberty granted to the applicant to apply for s 60 expenses.
Decision date: 8 August 2019 | Member: Arbitrator Philip Young
Injury to the brain and left knee; injuries sustained when the applicant fell on a rooftop terrace; whether the applicant suffered a brain injury (hydrocephalus), including post-concussion syndrome and a left knee injury; whether the applicant suffered a secondary psychological injury; applicant relied on medical evidence showing temporal association between work injury and symptoms of headache, cognitive decline and word difficulty; Arbitrator accepted that the applicant was in good health before the injury; Arbitrator held that the head injury aggravated and accelerated the asymptomatic hydrocephalus; arbitrator satisfied that the applicant suffered an injury to his left knee pursuant to s 4(a) and in the alternative s 4(b)(ii); Arbitrator satisfied of the unbroken causal link or chain between the psychological condition of generalised anxiety and the physical injuries: Kooragang; award for applicant for weekly payments pursuant to ss 36 and 37; held applicant entitled to s 60 expenses.
Decision date: 9 August 2019 | Member: Arbitrator Grahame Edwards
Hernia; applicant worker sought reconsideration of MAC; section 350(3) of the 1998 Act gives the Commission wide discretion to reconsider its previous decisions: Samuel; applicant’s solicitors referred to the decision in Tedeschi authority for the proposition that there are circumstances in which the mistake of a legal adviser might not prevent reconsideration; Arbitrator satisfied that the relevant factors weigh against the worker’s application for reconsideration; Held - application for reconsideration declined.
Decision date: 13 August 2019 | Member: Arbitrator Catherine McDonald
Injury to the left knee; whether the payment made by the Nominal Insurer was payment of compensation in accordance with the 1987 Act; insurer must not reduce the amount of weekly compensation unless the required period of notice has been given to the worker: s 80 of the 1987 Act; worker did not receive 12 weeks of weekly compensation, therefore section 80 did not apply; Held - applicant employer to make payment to the Nominal Insurer pursuant to section 145 of the 1987 Act.
Decision date: 14 August 2019 | Member: Senior Arbitrator Josephine Bamber
Medical dispute; the worker fell 4 metres from a ladder while working for Davcote; it was accepted that the worker sustained injury to the distal right radius, rotator cuff injuries to both shoulders and a fracture of the left fibula and that he later developed plantar fasciitis; The worker instituted lump sum compensation for a 22% WPI but discontinued those proceedings on 9 August 2017; prior to the discontinuance the Registrar referred the matter to an AMS whom assessed the worker as suffering from a 10% WPI. Importantly, the AMS did not assess the workers thoracic spine and left knee; the worker disputed that the referral for assessment by the AMS was validly made as it ought to have assessed the worker’s thoracic spine as a consequence of injuries he suffered to other body parts together with the knee; the Commission found that the MAC given by the AMS in response to that referral was a nullity; the arbitrator noted that s 321(4)(a) prohibits the Registrar from taking certain action unless liability has been determined as per Favetti Bricklaying Pty Ltd v Benedek & Anor, the Registrar was able to refer the medical dispute to the AMS; section 329 is not an issue since the referral to the AMS was invalid and the MAC was a nullity; the arbitrator determined liability finding that the worker’s wrist fracture and bursitis and pain in his shoulders have materially contributed to the worker’s condition in his thoracic spine; the arbitrator further found that the worker suffered an injury to his left knee; the matter was remitted to the Registrar for referral to an AMS for assessment of the degree of permanent impairment resulting from his injury.
Decision date: 14 August 2019 | Member: Arbitrator Marshal Douglas
Medical Appeal decisions
Worker suffered from CRPS in the lower extremity; AMS assessed ROM based on physical examination and some measurements based on best observational estimates. Appeal Panel held that assessment of range of motion based on this method was valid in accordance with Chapter 17 of the 4th edition Guidelines; held that the requirements set out in Chapter 17 of AMA5 pertaining to assessment of the lower extremity do not necessarily apply to the assessment of CRPS in the lower extremity under Chapter 17 of the 4th edition Guidelines; Held that the use of a goniometer was not otherwise essential to measuring ROM in the lower extremity; Brown v Westpac Corporation Ltd applied; other grounds of appeal rejected; MAC confirmed.
Decision date: 1 August 2019 | Panel: Arbitrator John Harris, Dr Drew Dixon, Dr David Crocker | Body system: left lower extremity and Chronic Regional Pain Syndrome (CRPS).
Injury to the cervical spine, right shoulder and left shoulder; Appeal Panel satisfied that assessment of impairment of the shoulders resulting from injury to the neck was beyond power of AMS and amounted to demonstrable error; “once injury is determined by the arbitrator it is for an AMS to then assess the degree of permanent impairment as a result of that injury and whether any proportion of that impairment is due to any previous injury”: Toll Pty Ltd; worker re-examined by member of the Appeal Panel; Appeal Panel not satisfied that any impairment results from injury to either shoulder; new MAC issued.
Decision date: 12 August 2019 | Panel: Arbitrator R J Perrignon, Dr Mark Burns and Dr Roger Pillemer | Body System: cervical spine, right upper extremity (right shoulder) and left upper extremity (left shoulder)
Injury to the right upper extremity; whether the AMS failed to provide any or adequate reasons for the s 323 deduction; Appeal Panel satisfied that there was ample evidence of prior injuries to the right shoulder; a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury: Vitaz; Appeal Panel satisfied that the pre-existing condition was a contributing factor causing permanent impairment, deduction of one-fifth considered appropriate; new MAC issued.
Decision date: 13 August 2019 | Panel: Arbitrator Deborah Moore, Dr Tommasino Mastroianni and Dr Brian Noll | Body system: right upper extremity
Medical dispute; injury to left upper extremity and scarring; the worker, a meat carter, slipped on a ramp whilst carrying a carcass injuring his left hand and wrist; the worker claimed lump sum compensation in respect of his injury; the employer asserted a significant deduction under s 323 of the 1998 Act for previous injury to arm; the AMS assessed 13% WPI and made a ¼ deduction for pre-existing injury; no award for scarring. The worker appealed the decision submitting that the AMS’s assessment was based on hypothesis and assumption and that a 1/10th deduction was appropriate; the respondent relied on Cole v Wenaline Pty Ltd and submitted that asymptomatic conditions can be the subject of s 323 deduction; the Appeal Panel dismissed the appeal finding the radiological evidence supported the AMS’s findings; in relation to the issue of scarring the Appeal Panel held that the AMS’s 0% assessment was within the discretion provided by the Guides; the Appeal Panel further noted an error in the permanent impairment calculation in respect of the arm; the AMS excluded excision of ‘carpal bone’ ; error in assessment of WPI; the Appeal Panel noted that it did not have jurisdiction to correct a demonstrable error; Appeal Panel held that MAC should be confirmed but be remitted to the Registrar for consideration.
Decision date: 13 August 2019 | Panel: Arbitrator John Wynyard, Dr. John Brian Stephenson and Dr Roger Pillemer | Body System: left upper extremity and scarring