Legal Bulletin No. 48
Issued 12 June 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.
Supreme Court decision
Administrative law; judicial review; workers compensation; whether re-examination of claimant by Appeal Panel required; adequacy of reasons; limits on jurisdiction under section 69 of the Supreme Court Act 1970 (NSW)
Decision date: 11 June 2020 | Before: Adamson J
Injury; section 4(b)(ii) of the 1987 Act; findings of fact based on the evidence; section 9B of the 1987 Act; drawing of inferences; adequacy of reasons.
Decision date: 3 June 2020 | Member: Acting Deputy President Geoffrey Parker SC
Worker fell off the back of a truck sustaining various injuries including an injury to the right hip; dispute as to whether she suffered a consequential condition in the left shoulder as a result of the injury to the right hip when she fell at home; Held - worker discharged the evidentiary onus in relation to the consequential injury to the left shoulder; respondent to pay worker’s medical expenses in relation to proposed surgery to the left shoulder.
Decision date: 28 May 2020 | Member: Arbitrator Carolyn Rimmer
Worker suffered a comminuted fracture of tibial plateau resulting in multiple surgeries and leading to a total left knee arthroplasty; the only issue was whether there should be any section 323 deduction and whether the surgical scar had assessable impairment; the parties agreed that the arbitrator determine whole person impairment; Held - respondent had failed to discharge the onus of proof that there was any section 323 deduction; Matthew Hall Pty Ltd v Smart applied; scar determined at 1% WPI based on length, visual appearance and position; worker assessed at 16% WPI.
Decision date: 28 May 2020 | Member: Arbitrator John Harris
Claim for costs of L4/5 and L5/S1 anterior lateral interbody fusion surgery; accepted lumbar spine injury in 1997; whether surgery reasonably necessary as a result of injury; Diab v NRMA Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service applied; Held - Arbitrator not satisfied on the evidence that surgery is reasonably necessary; award for the respondent.
Decision date: 28 May 2020 | Member: Arbitrator Rachel Homan
Proposed total left knee replacement surgery. Whether reasonably necessary; worker suffered accepted aggravation of left knee condition; however, respondent alleges effect of aggravation had passed; respondent also alleges proposed surgery not medically indicated; Held - effect of the workplace aggravation is ongoing, and the surgery is reasonably necessary as a result of the effect of that aggravation; Kelly v Western Institute NSW TAFE Commission referred to; Federal Broom Company Pty Ltd v Semlitch, Diab v NRMA Ltd, Bartolo v Western Sydney Area Health Service and Ariton Mitic v Rail Corporation NSW followed; respondent ordered to pay costs of and incidental to the proposed left knee replacement surgery.
Decision date: 28 May 2020 | Member: Arbitrator Cameron Burge
The worker sustained an injury to the lumbar spine arising from the nature and conditions of employment; Held - award for the respondent in respect of the claim of injury to the thoracic spine; burden of proof not discharged.
Decision date: 28 May 2020 | Member: Arbitrator Elizabeth Beilby
Claim for weekly benefits and section 60 expenses under the 1987 Act as a result of psychological injury “arising out of or in the course of the worker’s employment” with the respondent as a registered nurse in an aged care facility; the respondent relied on section 11A defence under the 1987 Act with respect to disciplinary action; finding that worker suffered injury pursuant to section 4(b)(i) of the 1987 Act as a result of the perceived hostile working environment in which he was employed; alternatively, if injury was “wholly or predominantly” caused by action taken by the respondent with respect to discipline (such action as a result of drugs missing from the respondent’s facility), the action of the respondent was not reasonable; Held - award in favour of the worker for weekly benefits and section 60 expenses
Decision date: 29 May 2020 | Member: Arbitrator Brett Batchelor
Claim for costs of left shoulder surgery; accepted left shoulder injury; whether surgery reasonably necessary as a result of injury; respondent’s expert made different findings on examination and proposed an alternative diagnosis; whether alternative diagnosis should be investigated prior to proposed surgery; Diab v NRMA Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service applied; Held – surgery is reasonably necessary as a result of injury; award for the worker.
Decision date: 3 June 2020 | Member: Arbitrator Rachel Homan
Whether worker suffered psychological injury; whether employment a substantial contributing factor to the injury; whether the defence under section 11A(1) of the 1987 Act is made out; meaning of the words “wholly and predominantly” and “reasonable” discussed; Held - worker suffered psychological injury and the employment was a substantial contributing factor; defence pursuant to section 11A(1) not made out; action of the employer of dismissal was not shown to be wholly or predominantly the cause of the injury and was not shown to be reasonable; Manly Pacific International Hotel Pty Ltd v Doyle; Department of Education & Training v Sinclair; Ritchie v Department of Community Services; Smith v Roads and Traffic Authority of NSW; Kooragang Cement Pty Ltd v Bates’ Ponnan v George Weston Foods Ltd; Temelkov v Kemblawarra Portuguese Sports & Social Club; Commissioner of Police v Minahan; Irwin v Director-General of School Education; Jeffery v Lintipal Pty Ltd; Jackson v Work Directions Australia Pty Ltd; D-G, Dept of Education & Training v Pembroke considered.
Decision date: 3 June 2020 | Member: Arbitrator Ross Bell
Dispute over whether IME was arranged in accordance with the Guidelines; application by respondent for Arbitrator to recuse herself on basis of apprehended bias; no transcript of proceedings available; Livesey v NSW Bar Association, Inghams Enterprises Pty Ltd v Belokoski, Gomez v Padding Product Pty Ltd, Elmer v Official Trustee in Bankruptcy, Tran v Westpac Banking Corporation considered; Held - lack of a transcript of the telephone conference on 7 April 2020 resulted in an inability to decide whether a reasonable person might reasonably conclude that the arbitrator had prejudged the case; Arbitrator to grant application and matter to be reallocated.
Decision date: 3 June 2020 | Member: Arbitrator Carolyn Rimmer
Worker fell off the back of a truck sustaining various injuries including an injury to the lumbar spine; dispute as to whether proposed anterior interbody fusion at L5/S1 was reasonably necessary treatment; Rose v Health Commission (NSW) and Diab v NRMA considered; Held - treatment was reasonably necessary; respondent to pay worker’s medical expenses in relation to proposed surgery.
Decision date: 3 June 2020 | Member: Arbitrator Carolyn Rimmer
Consequential conditions; right shoulder and neck accepted; Held - Murphy v Allity applied; claim for consequential injury to low back rejected; claims for injury to left shoulder, left knee and upper digestive tract conditions allowed.
Decision date: 3 June 2020 | Member: Arbitrator John Wynyard
No dispute about injury; dispute concerned capacity of worker to earn; alleged no current work capacity; not supported by evidence; capacity to earn in some suitable employment; section 32A of the1987 Act; Wollongong Nursing Home Pty Ltd v Dewar considered; Held - award for the worker.
Decision date: 3 June 2020 | Member: Arbitrator Jane Peacock
Medical Appeal decisions
Appeal against deduction of 1/10 by AMS in respect of right knee injury where both independent medical experts had deducted one half pursuant to section 323 of the 1998 Act; alleged failure to provide reasons for a 1/10 deduction said to be at odds with the evidence; Held - reasons for the deduction were apparent when the MAC is read as a whole; IME evidence not persuasive; it was open to the AMS to conclude that a deduction of 1/10 was appropriate and this was not at odds with the evidence; further complaint that assessment of the extent of pain in the knee was contrary to the weight of the evidence rejected; submission that the AMS had failed to provide reasons for making no deduction pursuant to section 323 in respect of injury to the lumbar spine accepted but upon review no deduction was appropriate; MAC confirmed.
Decision date: 28 May 2020 | Panel Members: Arbitrator William Dalley, Dr David Crocker and Dr Drew Dixon | Body system: right lower extremity, lumbar spine
Appeal from 19% WPI assessment for back injury; error alleged in assessing activity of daily living; examples set out for three different entitlements from 1-3% are guides, not criteria; AMS has discretion; activity of daily living assessment confirmed; further errors alleged in applying Table 4.2 of the Guides; AMS found to be in error in not allowing further 1% for surgery on two levels of the spine; AMS not in error for not allowing further surgery modifier for removal of spinal stimulator; further error alleged in s 323 deduction made by AMS; error found; Ryder and Broadspectrum applied; Held - MAC revoked.
Decision date: 29 May 2020 | Panel Members: Arbitrator John Wynyard, Dr Mark Burns and Dr James Bodel | Body system: lumbar spine
Error by AMS in making a deduction pursuant to section 323; worker employed continuously with the respondent although at different schools; misconception by the AMS as to the terms of the referral and the nature of the injury which was pleaded as “During the whole of employment with the respondent from 1997 to 2009 deemed to have occurred on 4 May 2009”; AMS erroneously considered employment at one school to be a pre-existing condition before commencement of employment at a different school; Held - MAC revoked.
Decision date: 2 June 2020 | Panel Members: Arbitrator Deborah Moore, Professor Nicholas Glozier and Dr Douglas Andrews |
Body system: psychological
Respondent worker suffered injury in the form of aggravation and deterioration of idiopathic osteoarthritis in left hip; the injury was due to the duties the respondent performed for the appellant over the course of time; Appeal Panel found MAC contained a demonstrable error because AMS did not clearly or sufficiently explain why he attributed 90% of the respondent’s overall impairment as being due to the respondent’s work activity; Appeal Panel also found AMS had made another error by making a deduction under s 323 but that issue had not been raised by appellant in its submissions as a ground of appeal; Woodbrae v Cullen discussed; Appeal Panel found that MAC contained demonstrable error because AMS provided unclear and insufficient reasons for assessment, the Appeal Panel would still assess the degree of respondent’s permanent impairment from his injury as 90% of overall impairment; Held - MAC confirmed.
Decision date: 3 June 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Roger Pillemer and Dr Margaret Gibson | Body system: left lower extremity, scarring (TEMSKI)