Legal Bulletin No. 28
Issued 24 January 2020
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.
Section 350(3) of the 1998 Act; the exercise of discretion to reconsider a Certificate of Determination; factors to consider; Samuel v Sebel Furniture Ltd applied; whether error of discretion; Raulston v Toll Pty Ltd applied.
Decision date: 15 January 2020 | Member: Deputy President Elizabeth Wood
Issue for determination; whether a Stryde intramedullary lengthening nail to be used in the right leg lengthening surgical procedure proposed by Dr Tim O’Carrigan, Orthopaedic Surgeon, is an “artificial aid” within the meaning of section 59A(6)(a) of the 1987 Act; consideration of the decision in Pacific National Pty Limited v Baldacchino; Held – firstly, the Stryde intramedullary lengthening nail to be used in the proposed right leg lengthening surgical procedure is an “artificial aid” within the meaning of section 59A(6)(a) of the 1987 Act; secondly, the respondent pay for the costs of and ancillary to the right leg lengthening surgical procedure.
Decision date: 9 January 2020 | Member: Arbitrator Anthony Scarcella
Death claim; widow alleges that death of worker in 2012 from stroke results from back injuries at work in 2001 and 2003 by agency of lack of activity and weight gain; Kooragang Cement Pty Ltd v Bates and Seltsam Pty Ltd v McGuinness; James Hardie & Coy Pty Ltd v McGuinness considered and applied; whether evidence establishes weight gain; whether weight gain caused by injuries; whether evidence proves that weight gain materially contributed to death of deceased; Held – Arbitrator satisfied that the worker died as a result of injuries arising out of and in the course of employment.
Decision date: 10 January 2020 | Member: Arbitrator Paul Sweeney
Dispute as to whether the worker’s psychological injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; section 11A of the 1987 Act; worker allegedly told about a disciplinary meeting, but he understood meeting was arranged to discuss grievances; respondent conceded that written notice of meeting not sent to worker; contemporaneous text messages, emails and correspondence substantiated worker’s evidence; evidence of respondent’s lay witnesses unreliable; medical evidence showed psychological issues prior to meeting; respondent’s doctor relied on incorrect history; Pirie v Franklins Ltd, Department of Education & Training v Sinclair, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, St George Leagues Club Ltd v Wretowska, Northern NSW Local Health Network v Heggie, Kushwaha v Queanbeyan City Council and ISS Property Services Pty Ltd v Milovanovic discussed and applied; Held – respondent’s actions not reasonable; worker had no current work capacity and entitled to weekly compensation and medical expenses.
Decision date: 13 January 2020 | Member: Senior Arbitrator Glenn Capel
Claim for left total knee replacement surgery from work-related injury in 2016; Held – award for the respondent based upon the evidence presently before the Commission as no doctor proposes that the surgery be undertaken at the present time.
Decision date: 14 January 2020 | Member: Senior Arbitrator Josephine Bamber
Worker suffered a number of frank injuries to different body parts in the course of his employment with the respondent; pleaded these injuries and sought to rely on disease provisions of the 1987 Act to allege that all injuries arose out of the “nature and conditions” of his employment, claiming that all injuries should be assessed by AMS as a result of a single deemed date of injury; discussion as to correct date of injury (claim for lump sum compensation only); respondent opposed this claim, saying that the injuries conceded by it should be assessed having regard to the separate dates pleaded on which they occurred; Rail Services Australia v Dimovski relied upon by respondent; detailed examination of the evidence; “nature and conditions” claim rejected; referral of matter to AMS for assessment as a result of injuries on dates pleaded by the worker.
Decision date: 15 January 2020 | Member: Arbitrator Brett Batchelor
Medical Appeal decision
Worker suffered injury to the left leg and various consequential conditions including injury to the lumbar spine and upper digestive tract; prior assessment of 7% WPI for the left leg; AMS found 7% WPI for the lumbar spine and 0% for the upper digestive tract; Held – findings made by AMS clear; no errors made with respect to radiculopathy; AMS made inconsistent findings with respect to cause of consequential condition contrary to findings of Arbitrator; State of New South Wales v Bishop applied; gastropathy established objective signs of gastritis and duodenitis; worker had intermittent reflux related to gastritis; worker assessed at 2% WPI for upper digestive tract with a one-half deduction pursuant to section 323 due to prior laparotomy surgery affecting the condition; MAC revoked; observations that Appeal Panel could not combine with previous MAC relating to left leg as that body part was not referred; MAC revoked.
Decision date: 15 January 2020 | Panel Members: Arbitrator John Harris, Dr Neil Berry and Dr Drew Dixon | Body system: lumbar spine and upper digestive tract