Legal Bulletin No. 43
Issued 8 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.
Court of Appeal decision
Administrative law; judicial review; whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar; whether Delegate’s decision contained jurisdictional error; whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations; whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion; workers compensation; Workers Compensation Guidelines; whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment; whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion.
Decision date: 6 May 2020 | Before: Bell P, Payne JA and Emmett AJA.
Section 59A(6)(a) of the 1987 Act; whether a bone graft, pedicle screws and interbody cage to be implanted in surgery involving a lumbar decompression and spinal fusion constitutes an “artificial aid”; Thomas v Ferguson Transformers Pty Ltd, Pacific National Pty Ltd v Baldacchino considered and applied
Decision date: 24 April 2020 | Member: Deputy President Elizabeth Wood
Whether the Arbitrator’s decision that the respondent employer had discharged its onus of showing that it took reasonable action in relation to the applicant worker for the purposes of section 11A of the 1987 Act by way of performance appraisal and/or discipline was correct; there was no dispute that the appellant had suffered a psychological injury that was wholly caused by the actions of the respondent by way of performance appraisal and/or discipline; the issue was reasonableness
Decision date: 29 April 2020 | Member: Acting Deputy President Larry King SC
Death of worker in motor vehicle accident in course of employment; issue as to identity of employer, meaning of “premises” in section 20(6) of the 1987 Act; issue regarding application of section 20 of the 1987 Act in respect of liability of principal as employer uninsured; apportionment of section 25(1)(a) of the 1987 Act in relation to lump sum payment between widow and child of earlier union; Held - fourth respondent was employer of deceased at time of death; “Premises” does not include the vehicle being driven by deceased at time of death; first respondent not liable as a principal under section 20 due to exclusion in section 20(6); fourth respondent did not hold policy of insurance at all relevant times; orders made regarding apportionment and payment by Workers Compensation Nominal Insurer.
Decision date: 23 April 2020 | Member: Senior Arbitrator Josephine Bamber
Worker sustained injury to her neck when she turned her head suddenly when taking notes in office conference; liability declined in reliance on section 9A(2)(d), namely the probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, if she had not been at work or had not worked in that employment; Held - worker satisfied the requirements of section 9A of the 1987 Act; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited applied referencing the reasoning of Basten JA: “if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury”; award for the worker for weekly payments and section 60 expenses.
Decision date: 24 April 2020 | Member: Arbitrator Deborah Moore
Claim for lump sum compensation under section 66 of the 1987 Act; accepted injury to cervical spine and left shoulder; whether the worker suffered a consequential injury to his right shoulder; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Watts v Rake and Purkess v Crittenden considered and applied; Held – the worker suffered a consequential injury to the right shoulder as a result of the accepted injuries to the cervical spine and left shoulder in the course of his employment with the respondent; matter remitted to the Registrar for referral to an AMS for assessment under the 1998 Act to assess the impairment of the cervical spine, left shoulder and right shoulder.
Decision date: 28 April 2020 | Member: Arbitrator Anthony Scarcella
Psychological injury; injury and incapacity admitted; section 11A of the 1987 Act; whether injury wholly or predominantly caused by reasonable action with respect to provision of employment benefits; Held - award for the respondent.
Decision date: 28 April 2020 | Member: Arbitrator Catherine McDonald
Claim for lump sum compensation pursuant to section 66 of the 1987 Act; consequential condition; worker suffered significant scarring following onset of Lichen Planus within a week of undergoing hand surgery for a fractured scaphoid; Twins Pty Ltd v Luo and Ozcan v Macarthur Disability Services Ltd considered; Held - material contribution established; matter remitted for assessment of left upper extremity and scarring.
Decision date: 28 April 2020 | Member: Arbitrator John Wynyard
Aged care worker suffered admitted psychological injury following an extended period of conflict with his managers; claim pursuant to section 66 of the 1987 Act denied pursuant to section 11A of the 1987 Act with respect to discipline, dismissal and employment benefits; Held - the defence pursuant to section 11A was not made out on the facts; claim remitted to the Registrar for referral to an AMS to assess whole person impairment.
Decision date: 28 April 2020 | Member: Arbitrator William Dalley
Worker suffered an accepted injury to both knees and underwent a total right knee replacement; the issue for determination was the extent of permanent impairment as a result of injury; the parties accepted that the Commission, as opposed to an AMS, could determine permanent impairment; Held - Commission had the power to determine permanent impairment; Etherton v ISS Properties Pty Ltd applied; discussion of prior MAC and assessment of separate knee compartments under paragraph 3.20 of the Guidelines; acceptance of one doctor’s explained opinion that the worker had a poor result from the total right knee replacement; discussion of principles under section 323 of the 1998 Act; doctor had not properly addressed correct legal principles specifically, that the arthritic condition pre-existed injury and no account was made for subsequent degeneration: Secretary, Department of Education v Johnson and Cullen v Woodbrae Holdings Pty Ltd applied; one-tenth deduction made pursuant to section 323(2); finding made that the worker suffered a 31% WPI.
Decision date: 28 April 2020 | Member: Arbitrator John Harris
Claim for lump sum compensation; injury to right shoulder resulting in surgery undisputed; consequential condition alleged in the left shoulder disputed; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; evidence weighed in the balance and satisfied on the balance of probabilities that the worker had suffered a consequential condition in the left shoulder; Held - award for the worker; matter remitted to the Registrar for referral to an AMS to assess the degree of permanent impairment in respect of both the left and right upper extremities.
Decision date: 28 April 2020 | Member: Arbitrator Jane Peacock
Worker sought declaration sought under pursuant to section 60(5) of the 1987 Act; total left knee replacement surgery disputed as employment not said to be a substantial contributing factor and surgery not reasonably necessary; evidence compelling, including respondent medical witnesses; respondent medico-legal referee not accepted; Held - award for the worker.
Decision date: 29 April 2020 | Member: Arbitrator John Wynyard
Claim for weekly compensation and medical expenses; nature of injury suffered; whether frank injury or aggravation of pre-existing condition; application of section 9A of the 1987 Act; Held - worker suffered injury by way of aggravation or pre-existing condition in right knee, which caused incapacity for period claimed; section 9A has no operation in those circumstances; award for worker for weekly benefits and for payment of reasonably necessary medical and treatment expenses.
Decision date: 27 April 2020
Date of amendment: 29 April 2020 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
Back injury resulting in surgery; whether AMS erred in making section 323 deduction for degenerative changes and assessing 0% under TEMSKI; worker had complained of some back pain for two years before injury; MRI immediately after injury showed degenerative changes; Held - AMS not in error to make one-tenth deduction; uncomplicated scar; AMS not in error to assess 0%; MAC confirmed.
Decision date: 24 April 2020 | Panel Members: Arbitrator Catherine McDonald, Dr David Crocker and Dr Brian Noll | Body system: lumbar spine, scarring (TEMSKI)
Whether assessment based on incorrect criteria; whether demonstrable error on the face of the MAC regarding assessment of hearing loss; AMS made no deduction under section 323 of the 1998 Act in respect of period of employment from 1976 to 1980; Ryder v Sundance Bakehouse, Cole v Wenaline Pty Ltd, Fire & Rescue NSW v Clinen and Vitaz v Westform (NSW) Pty Limited applied; Held - no demonstrable error; assessment not based on incorrect criteria; MAC confirmed.
Decision date: 24 April 2020 | Panel Members: Arbitrator Ross Bell, Dr Brian Williams and Dr Joseph Scoppa | Body system: hearing loss
Psychological injury; appellant worker alleged error in assessment by the AMS under the categories of social and recreational activities, travel and social functioning under the Permanent Impairment Rating Scale of the Guidelines; Held – no error demonstrated; MAC confirmed.
Decision date: 20 March 2020 | Panel Members: Arbitrator Jane Peacock, Dr Lana Kossoff and Dr Michael Hong | Body system: psychological