Legal Bulletin No. 39
Issued 9 April 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.
Alleged factual error: application of Raulston v Toll Pty Ltd; credibility and contemporaneous documents: Onassis v Vergottis, proof of injury simpliciter, section 289A of the 1998 Act
Decision date: 1 April 2020 | Member: Deputy President Michael Snell
Desk fell on worker, causing injury to her sternoclavicular joint, left shoulder and neck; respondent accepted that injuries to left upper extremity (shoulder)(including brachial plexus), cervical spine and scarring should be referred to AMS; disputed injury to thoracic spine and consequential condition in right shoulder; Held - no contemporaneous complaint and no evidence about how consequential condition arose; no treatment; injuries to left upper extremity (shoulder)(including brachial plexus), cervical spine and scarring remitted for referral to AMS.
Decision date: 26 March 2020 | Member: Arbitrator Catherine McDonald
Claim for costs of and incidental to right rotator cuff repair surgery; accepted injury to right shoulder in 1999; deterioration in pathology; whether need for surgery results from injury; dispute as to nature of pathology shown on radiological investigation; whether psychological condition would prevent surgery from being effective; Held – proposed surgery reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 26 March 2020 | Member: Arbitrator Rachel Homan
Claim for lump sum compensation and medical expenses for psychological injury; worker claimed injury was caused by workplace bullying and harassment and receipt of an outcome of investigation letter; Held – satisfied workplace events caused injury on factual and medical evidence; not satisfied events amounted to bullying and harassment; satisfied receipt of letter also caused injury; not satisfied respondent made out defence under section 11A of the 1987 Act; applied Attorney General’s Department v K; award for the worker on the claim for lump sum compensation; AMS to assess the degree of permanent impairment
Decision date: 26 March 2020 | Member: Arbitrator Nicholas Read
Whether worker suffered cervical spine injury as well as accepted right shoulder injury; worker suffered cervical spine injury in separate, later incident than that to her right shoulder; whether injuries could be assessed together; Held - the injuries involved separate pathology arising from injurious events some two years apart; accordingly they could not be referred for assessment together: Department of Juvenile Justice v Edmed followed.
Decision date: 27 March 2020 | Member: Arbitrator Cameron Burge
Section 9AA of the 1987 Act; worker suffered psychological injury in the course of employment as a bus driver on a bus route in Queensland but commenced and finished each shift at the respondent’s bus depot in Tweed Heads; Martin v RJ Hibbens Pty Ltd; Klemke v Grenfell Commodities Pty Ltd and Ferguson v Workcover Queensland discussed; Held – employment connected with New South Wales on the “usually based” test.
Decision date: 27 March 2020 | Member: Arbitrator Grahame Edwards
Accepted lumbar spine injury and consequential cardiac condition; worker claims AMS referral also for injury and/or consequential condition to the cervical spine; Dr Hopcroft opinion held to be speculative as insufficient factual evidence to support conclusions and notable absence of complaint to any clinician concerning neck symptoms or pain until years after worker ceased work; Held - Award for respondent in respect of cervical spine allegation; other body parts remitted to Registrar requesting AMS Referral.
Decision date: 27 March 2020 | Member: Arbitrator Philip Young
Dispute as to whether respondent entitled to seek leave to deny injury after liability had been accepted; dispute as to whether the worker had recovered from a psychological injury; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services; Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hevi Lift (PNG) Ltd v Etherington; South Western Sydney Area Health Service v Edmonds; Hancock v East Coast Timbers Products Pty Ltd; Mid North Coast Local Health District v De Boer and Wollongong Nursing Home Pty Ltd v Dewardiscussed and applied. Held - respondent’s application for leave to dispute injury rejected; psychological injury not resolved; worker had capacity to work in suitable employment; award of weekly compensation.
Decision date: 30 March 2020 | Member: Senior Arbitrator Glenn Capel
Claim for lump sum compensation; worker employed as motor mechanic; repetitive heavy duties; accepted lumbar spine injury; whether worker also sustained injuries to cervical spine, left shoulder and elbow, right elbow, knees; award for the respondent with respect to the right knee; weight of medical evidence supported claim with respect to other injuries; referred to AMS for assessment
Decision date: 30 March 2020 | Member: Arbitrator Jill Toohey
Claim for permanent impairment for psychological injury; worker struck on head by dementia patient; delay in seeking medical treatment; worker continued to perform normal duties as assistant in nursing for 6 months post-incident; reference to Attorney General’s Department v K; finding of both primary and secondary psychological injury; Held – referral to AMS for assessment of whole person impairment for primary psychological injury.
Decision date: 30 March 2020 | Member: Arbitrator John Isaksen
Claim for weekly benefits and section 60 expenses under the 1987 Act in respect of psychological injury; defence in section 11A(1) of the 1987 Act in respect of provision of employment benefits; meeting to review work restrictions following physical injuries the predominant cause of psychological injury; incapacity where employer did not provide suitable duties; Held – defence in section 11A(1) of the 1987 Act not established; compensable injury; worker had no current work capacity; respondent to pay weekly benefits and section 60 expenses.
Decision date: 30 March 2020 | Member: Arbitrator Rachel Homan
Lump sum claims pursuant to section 66 of the 1987Act; agreed injury to left index finger; dispute in relation to the consequential conditions disputed in relation to upper digestive tract, chronic regional pain syndrome and cervical spine; Held -award for the respondent in relation to cervical spine; award for the applicant in relation to other claims; however, pursuant to section 66(1) the worker is not entitled to have his permanent impairment claim referred for assessment by an Approved Medical Specialist as the threshold not met.
Decision date: 31 March 2020 | Member: Senior Arbitrator Josephine Bamber
Applicant was a casual worker who suffered an accepted injury in late 2019 within days of commencing work with the respondent; the respondent issued a work capacity decision and the dispute only related to the calculation of the applicant’s PIAWE; Held - the calculation was governed by the amendments to PIAWE introduced by the Workers Compensation Legislation Amendment Act 2018; schedule 3, clause 4 of the 1987 Act and clause 8F of the Workers Compensation Regulation 2016 applied to the calculation of PIAWE for short term worker (less than 4 weeks); no evidence adduced by the applicant of her earnings for the 52 weeks prior to employment which was a relevant consideration under clause 8F(1); commission not satisfied that the applicant would work the hours that she intended. PIAWE reassessed.
Decision date: 31 March 2020 | Member: Arbitrator John Harris
Dispute regarding binaural hearing loss, noisy employment and last noisy employer, where factual and medical evidence, including that of the respondent, supported the applicant’s claim; Inferences to be drawn in absence of evidence;Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Galdemar v Asta Enterprises Pty Ltd; Dawson t/as The Real Cane Syndicate v Dawson; Blayney Shire Council v Lobley; G v H; Raulston v Toll Pty Ltd; Australia and New Zealand Banking Group Limited v Khullar discussed and applied; Held - Award for the worker in respect of the claim for medical expenses; hearing loss referred to AMS for assessment.
Decision date: 31 March 2020 | Member: Senior Arbitrator Glenn Capel
Alleged psychological injury resulting from bullying and harassment by fellow worker; differing medical opinion regarding diagnosis of condition; DSMC; evidence of DR Rastogi and Dr Abraham and psychologist Ms Genua preferred over Dr Teoh’s opinion; Held - worker’s evidence accepted and award in favour of worker for weekly payments and medical expenses; question of WPI remitted to Registrar.
Decision date: 1 April 2020 | Member: Arbitrator Philip Young
Medical Appeal decisions
Remittal from Supreme Court after judicial review application; worker suffered a back injury and a vaginal prolapse lifting a box of pies; no issue in relation to assessment of lumbar spine; worker underwent hysterectomy with surgery to repair prolapse; whether arbitrator’s decision in previous proceedings for section 60 expenses determined the issue of causation; history to AMS that surgeon advised hysterectomy would give better result or reduce risk of recurrence of prolapse; incomplete records on file; call for documents under section 324 of 1998 Act; history of advice not supported by treating surgeon’s records; loss of fertility not rateable; Held - MAC confirmed.
Decision date: 31 March 2020 | Panel Members: Arbitrator Catherine McDonald,
Professor John Carter and Dr John Garvey | Body system: Urinary Reproductive System
Challenge to deductions pursuant to section 323 of the 1998 Act; worker asymptomatic at time of injury; evidence of earlier meniscectomy; inevitability of arthritis onset; one-quarter deduction reflected asymptomatic evidence; consequential condition by altered gait to left hip; evidence of constitutional Cam lesion; one-half deduction for underlying constitutional condition within range; Broadspectrum v Wills considered; Held - MAC confirmed.
Decision date: 31 March 2020 | Panel Members: Arbitrator John Wynyard,
Dr Brian Stephenson and Dr Greg McGroder | Body system: right lower extremity and left lower extremity