Legal Bulletin No. 34
Issued 6 March 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 4(b)(ii) of the Workers Compensation Act 1987 and the test of ‘main contributing factor’.
Decision date: 24 February 2020 | Member: Deputy President Michael Snell
Claim for lump sum compensation; claim for consequential condition in right heel as a result of an undisputed injury in right great toe which required amputation; applicant suffering from longstanding pre-injury diabetes mellitus; applicant had to undergo amputation of the right leg below the knee as a result of the condition in right heel; assessed on a common sense basis; Kooragang Cement v Bates applied; Held - there was sufficient evidence to find the condition in the right heel consequent upon the injury to the right great toe; need for surgery to amputate the right leg below the knee reasonably necessary as a result of the injury to the right great toe; matter remitted to the Registrar for referral to AMS for assessment of WPI.
Decision date: 21 February 2020 | Member: Arbitrator Brett Batchelor
Accepted injury to worker’s right ankle; dispute as to whether need for ankle surgery resulted from accepted injury and whether worker developed consequential condition in his lumbar spine; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan considered and applied; Held - worker successful; claim remitted to the Registrar for referral to an Approved Medical Specialist.
Decision date: 24 February 2020 | Member: Senior Arbitrator Glenn Capel
Driving assessor suffered an aggravation of degenerative changes in her spine when a learner driver stopped suddenly; dispute in relation to whether proposed fusion surgery reasonably necessary and whether the prescription of medicinal cannabis with appropriate approvals fell within the definition of medical and related treatment in section 59 of the 1987 Act; Held - no dispute that the treatment was reasonably necessary; award for the applicant.
Decision date: 26 February 2020 | Member: Arbitrator Catherine McDonald
Medical Appeal decisions
Injury to visual system and digestive system from splashing of battery acid; injury to digestive system occurred due to ingestion of acid; appeal related to AMS not assessing worker as having impairment of the upper digestive tract because worker did not have signs of upper digestive tract disease; Held - Appeal Panel found AMS had erred because AMS misinterpreted paragraph 16.9 of the Guidelines; paragraph 16.9 amends AMA5 Table 16-3 only in the circumstance where impairment is due to the effects of analgesics on the digestive tract; worker’s impairment was not the result of analgesics; worker had symptoms of upper digestive tract disease and could be assessed within class 1 of Table 16-3; MAC revoked.
Decision date: 20 February 2020 | Panel Members: Arbitrator Marshal Douglas,
Dr John Dixon-Hughes and Dr Neil Berry | Body system: digestive system and visual system
Assessment of noise induced hearing loss; AMS excluded frequencies below 2000 Hz; appellant worker alleged demonstrable error and adoption of incorrect criteria where both independent medical experts had included at least some loss below 2000 Hz; Held - assessment of the hearing loss due to exposure to noise is a matter of clinical judgement; AMS had considered the necessary criteria and had made his evaluation; AMS had provided reasons for exclusion of the lower frequencies and his assessment was open on the evidence; MAC confirmed.
Decision date: 21 February 2020 | Panel Members: Arbitrator William Dalley,
Dr Henley Harrison and Dr Joseph Scoppa | Body system: hearing loss
Appeal from assessment of both knees; whether AMS incorrectly applied the scoring system in Table 17-35 of AMA5; whether AMS erred in deducting one-third for pre-existing osteoarthritis following bilateral knee replacement surgeries; Held - error demonstrated; MAC revoked.
Decision date: 24 February 2020 | Panel Members: Arbitrator R J Perrignon, Dr Philippa Harvey-Sutton and Dr John Ashwell | Body system: right lower extremity and left lower extremity
Whether the MAC contains a demonstrable error and the assessment based on incorrect criteria; AMS assessed DRE Lumbar Category III when there had been spontaneous fusion following surgery after the injury; whether the intention of the original surgery not including fusion meant that the AMS was obliged to find DRE Lumbar Category IV; Held - demonstrable error on the face of the MAC; MAC revoked; DRE Lumbar Category IV, intention of original surgery did not bind AMS to Category III; Table 15-3 applies with DRE Category IV applicable; paragraphs 4.37 and 1.23 of the Guidelines; AMA5 Table 15-3; one-tenth deduction pursuant to section 323 of the1998 Act applied; Ryder v Sundance Bakehouse, Cole v Wenaline Pty Ltd and Fire & Rescue NSW v Clinen considered.
Decision date: 25 February 2020 | Panel Members: Arbitrator Ross Bell, Dr Roger Pillemer and Dr Greg McGroder | Body system: lumbar spine
Worker injured left shoulder and neck making Turkish Delight; following shoulder surgery the worker developed an arterial blockage (DVT) in the right lower leg; the AMS found worker suffered a 5% WPI of the shoulder, a 10% WPI of the right leg, and 0% WPI of the neck; worker appeal the neck assessment and relied on additional evidence pursuant to section 328(3) of the 1998 Act of recent admission to hospital with claudication of right leg; Held – cervical assessment confirmed; MAC revoked in respect of DVT injury pending further investigation; discussion of apparent inconsistency between Table 17-38 and Table 4.5 of AMA5; maximum medical improvement not reached.
Decision date: 26 February 2020 | Panel Members: Arbitrator John Wynyard, Dr James Bodel and Dr Mark Burns | Body system: cervical spine, left upper extremity (shoulder) and right lower extremity