Legal Bulletin No. 42
Issued 1 May 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.
State of New South Wales v Roberts Concrete Specialists Pty Ltd (formerly Jack Harrison Home Builders Pty Ltd  NSWWCCPD 20
Apportionment of liability; section 22 of the 1987 Act; just and equitable in the special circumstances of the case; section 22A of the 1987 Act; Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors applied.
Decision date: 20 April 2020 | Member: President Judge Phillips
Aggregation of impairment; application of common law principles, whether the impairment “results from” the injury; Le Twins Pty Ltd v Luo, Murphy v Allity Management Services Pty Ltd, Nicol v Macquarie University, Johnson v NSW Workers Compensation Commission, Government Insurance Office of NSW v Aboushadi, considered; State Government Insurance Commission v Oakley;, Secretary, New South Wales Department of Education v Johnson considered and applied; application of section 322 of the 1998 Act; Department of Juvenile Justice v Edmed applied.
Decision date: 21 April 2020 | Member: Deputy President Elizabeth Wood
Credit finding; application of Malco Engineering Pty Ltd v Ferreira, alleged factual error, medical evidence; application of Paric v John Holland (Constructions) Pty Ltd, drawing of inferences.
Decision date: 22 April 2020 | Member: Deputy President Michael Snell
Matthew Thomas Kennedy t/as Matts Bakery Cafe v Workers Compensation Nominal Insurer and Giddens  NSWWCCPD 23
Whether discretion to admit or reject evidentiary statements miscarried; whether material evidence not given any or any proper consideration; whether matter determined on a basis not raised by the parties; whether appeal competent or out of time.
Decision date: 21 April 2020 | Member: Acting Deputy President Larry King SC
Whether worker suffered aggravation of degenerative condition necessitating cervical spine fusion surgery; whether worker suffered a consequential condition to his cervical spine as a result of his accepted lumbar spine injury; whether the proposed surgery is reasonably necessary; Held - the surgery is medically necessary; the worker did not suffer an aggravation nor a consequential condition as alleged; award for the respondent.
Decision date: 16 April 2020 | Member: Arbitrator Cameron Burge
Claim for resumption of weekly benefits pursuant to section 40 of the 1987 Act; whether probable earnings but for injury should be calculated by reference to rank at time of injury as opposed to worker’s present rank; Johnston v Commissioner for Railways; Held – promotion to sergeant a probable or likely career progression; the assessment required by section 40(2)(a) should be undertaken by reference to what the worker would have been earning in that rank but for the injury; respondent to pay weekly benefits pursuant to section 40.
Decision date: 20 April 2020 | Member: Arbitrator Rachel Homan
Industrial Deafness; no dispute in respect of injury or last noisy employment; worker sought compensation under section 60 of the 1987 Act in respect of the provision of hearing aids; respondent disputed that hearing aids were reasonably necessary as a result of the injury; Diab v NRMA applied; Held - award for the worker.
Decision date: 21 April 2020 | Member: Arbitrator Jane Peacock
Divis v Dr Dan White, Executive Director of Catholic Schools and Legal Representative for Sydney Catholic Schools  NSWWCC 124
Weekly payments claim following worker school teacher being struck on head in school playground by basketball; whether worker sustained mild traumatic brain injury (TBI); whether the worker had any current work capacity within the meaning of section 32A and section 37 of the 1987 Act and if so to what extent; Held - worker sustained TBI; Held - worker had a current work capacity to work 10 hours a week as a casual or part time school teacher in a coaching, tutoring or remedial type role and was entitled to award for weekly payments pursuant to section 37 of the 1987 Act.
Decision date: 21 April 2020 | Member: Arbitrator Michael Perry
Claim for weekly benefits and expenses pursuant to section 60 of the 1987 Act including costs of and incidental to cervical spine surgery; factual dispute as to whether there was an injurious event causing injury to the cervical spine as claimed; lack of contemporaneous evidence and delay in reporting injury; whether entitlement to future weekly benefits where worker currently in receipt of weekly benefits as a result of primary psychological injury; Held - Arbitrator satisfied that worker sustained cervical spine injury as claimed; respondent to pay costs of and incidental to proposed surgery; Arbitrator declined to award weekly compensation
Decision date: 21 April 2020 | Member: Arbitrator Rachel Homan
Accepted injury to left shoulder and consequential conditions in the neck and right shoulder; dispute as to whether proposed cervical discectomy and fusion was reasonably necessary on basis of positive discogram; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd discussed and applied; Held - neck surgery was reasonably necessary; respondent to pay for proposed surgery pursuant to section 60 of the 1987 Act.
Decision date: 21 April 2020 | Member: Senior Arbitrator Glenn Capel
Medical Appeal decisions
Worker sustained injury to cervical spine and lumbar spine on 15 April 2012; assessment of WPI; history of radiation of pain to the right leg in the past and a diagnosis of right radiculopathy made by treating specialists; AMS erred in failing to make findings in his examination of the lumbar spine as to whether or not there was any muscle spasm or guarding; the assessment made on the basis of incorrect criteria; Held - MAC revoked.
Decision date: 16 April 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon | Body system: cervical spine and lumbar spine
Cervical spine and thoracic spine injury; appellant worker alleged error in assessment by the AMS in respect of the thoracic spine; AMS assessed appellant’s thoracic spine impairment within DRE Category I; error found and appellant was re-assessed by the Panel; the Panel noted that the appellant has had constant pain in his thoracic region since injury and suffered localised tenderness and asymmetry on rotation placing him in DRE Category II pursuant to Table 15-4 of the AMA 5; symmetric loss of range of movement and non-verifiable radicular complaints; Held - MAC revoked.
Decision date: 17 April 2020 | Panel Members: Arbitrator Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder | Body system: cervical spine and thoracic spine
Appeal against MAC on the four grounds referred to in section 327(3) of the 1998 Act; application to admit fresh evidence to show deterioration of the appellant’s condition since date of AMS examination; appellant worker suffering from PTSD and admitted to hospital for treatment of the condition after the date of the AMS examination; appellant worker re-examined by a member of the Appeal Panel; fresh evidence admitted; finding that the appellant worker suffered a deterioration in his condition that resulted in an increase in the degree of permanent impairment; Held - MAC revoked.
Decision date: 21 April 2020 | Panel Members: Arbitrator Brett Batchelor, Dr Lana Kossoff and Dr Patrick Morris | Body system: psychological