Legal Bulletin No. 50
Issued 29 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; guidelines issued under section 376 of the 1998 Act; where plaintiff sought adjustment under clause 1.32 of Guidelines; whether Appeal Panel gave adequate reasons explaining application of clause 1.32; whether error of law on the face of the record
Decision date: 22 June 2020 | Before: Adamson J
Evidence in medical histories in the Commission: Onesteel Reinforcing Pty Ltd v Sutton alleged factual error: Raulston v Toll Pty Ltd, application of Hancock v East Coast Timber Products Pty Limited.
Decision date: 15 June 2020 | Member: Deputy President Michael Snell
Application of the principles of estoppel - issue estoppel, the doctrine of res judicata, and Anshun estoppel; joinder of parties in death claims.
Decision date: 17 June 2020 | Member: President Judge Phillips
Injury to left knee at work climbing stairs; dispute whether employment was a substantial contributing factor to injury; section 9A of the 1987 Act; Badawai v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd considered; Held- connection to employment found to be real and of substance; award for the worker.
Decision date: 12 June 2020 | Member: Arbitrator Jane Peacock
Section 60 medical expenses for proposed surgery; whether the need for lumbar surgery results from a work injury of the aggravation of an underlying condition; whether the surgery is reasonably necessary; lack of clinical records of back complaints or treatment for a period of 15 months and whether this establishes that the aggravation had resolved, and whether the need for surgery due to other aggravations; Held - need for surgery the result of the work aggravation; surgery reasonably necessary; Kooragang Cement Pty Ltd v Bates; Murphy v Allity Management Services Pty Ltd March v Stramare (E & M H) Pty Limited; Flounders v Millar; Comcare v Martin; Rose v Health Commission; Diab v NRMA Ltd; and Pelama Pty Ltd v Blake considered.
Decision date: 15 June 2020 | Member: Arbitrator Ross Bell
Dispute concerning the extent of a worker’s entitlement to medical expenses; application of section 59A of the 1987 Act and transitional provisions; Held – worker had an entitlement to five years of medical expenses from the date weekly payments of compensation ceased to be paid or were payable; not satisfied worker’s entitlement limited to 12 months, in accordance with the pre-amended section 59A; respondent to pay the worker’s medical expenses pursuant to section 60 of the 1987 Act for a period of five years commencing on 30 June 2020, in accordance with section 59A of the 1987 Act.
Decision date: 15 June 2020 | Member: Arbitrator Nicholas Read
Worker’s entitlement to weekly payments of compensation; commencement of first entitlement period; end of second entitlement period; periods of no capacity and some capacity for work; Held - unsatisfactory state of the evidence to determine end of the second entitlement period; interim award of weekly payments made pursuant to sections 36 and 37 of the 1998 Act with leave granted to the parties to file consent orders with respect to the payment of weekly payments for the balance of the second entitlement period.
Decision date: 16 June 2020 | Member: Arbitrator Grahame Edwards
Claim for weekly benefits and lump sum compensation in respect of nature and conditions injury to the worker’s lumbar spine, cervical spine and right shoulder; delay in reporting symptoms; reliability of worker’s evidence; where evidence of pre-existing degenerative pathology; unsatisfactory evidence relating to incapacity; Held – the worker sustained injury to cervical and lumbar spine; evidentiary onus not discharged in relation to the right shoulder; referral to an AMS for assessment of degree of permanent impairment; consideration of the claim for weekly benefits deferred until receipt of MAC.
Decision date: 16 June 2020 | Member: Arbitrator Rachel Homan
Claim for permanent impairment for injury to the lumbar spine, thoracic spine, and cervical spine by way of a disease injury, and consequential conditions affecting the upper and lower digestive tracts; respondent disputes injury to the cervical spine and that the worker sustained injury to the lumbar spine by way of a disease injury, as opposed to a separate and discrete injury to the lumbar spine; Held – award for the respondent for injury to cervical spine; worker sustained a disease injury to her lumbar spine; the disease injury to the lumbar and thoracic spine results from the same injurious incident; assessments of impairment for injury to the lumbar spine and thoracic spine can be aggregated, along with consequential conditions affecting the upper and lower digestive tracts.
Decision date: 16 June 2020 | Member: Arbitrator John Isaksen
Claim for weekly benefits and for proposed surgery; whether effect of injury by way of aggravation is ongoing or has ceased; whether worker suffered incapacity for employment, and to what extent; whether proposed cervical spine fusion is reasonably necessary; Held - effect of accepted aggravation is ongoing and caused worker total incapacity during the claimed period; Held - proposed cervical spine fusion is reasonably necessary.
Decision date: 16 June 2020 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
Injury to left lower extremity; whether the AMS fell into error or made assessment on the basis of incorrect criteria in not making an assessment under Table 3.4 of the Guidelines (Tibia-Os Calcis Angle); Panel concluded that abnormal tibia-os calcis angle was a separate entity to the lack of movement in the subtalar joint and should have been taken into account in the assessment of the left lower extremity; Held – error demonstrated; correction of error in calculations in the MAC; Drosd v Workers Compensation Nominal Insurer considered; MAC revoked.
Decision date: 11 June 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Mark Burns and Dr Brian Noll | Body system: left lower extremity and scarring
Injury to right shoulder; arbitrator found that worker suffered a consequential condition in her cervical spine; AMS assessed right shoulder but mis-transposed figures to Table resulting in an obvious error; error corrected; AMS assessed cervical spine in DRE Cervical Category; contrary statements suggested AMS did not accept there was injury; assessment in DRE I was not inappropriate; Held - MAC revoked.
Decision date: 16 June 2020 | Panel Members: Arbitrator Catherine McDonald, Dr John Ashwell and Dr David Crocker | Body system: right upper extremity and cervical spine
Injury to cervical spine, left upper extremity and scarring; whether the AMS fell into error or made assessment of the basis of incorrect criteria in coming to the conclusion that there was no evidence of radiculopathy and not assessing the worker as DRE III; whether AMS should have awarded at least 2% for ADL; whether AMS should have assessed 2% and not 1% for scarring (TEMSKI); Held – no error and assessment not made on the basis of incorrect criteria; MAC confirmed.
Decision date: 16 June 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Mark Burns and Dr Roger Pillemer | Body system: cervical spine
Section 323 deduction; injury as a result of the nature and conditions of employment from 2007 to 2015; AMS misdirected himself as to the terms of the referral and made a one-tenth deduction; arbitrator failed to appreciate that for a section 323 deduction to be made in cases where the injury arose as a result of employment over a period of time, the “pre-existing condition or abnormality” has to pre-exist the commencement of the employment activity; Held - MAC revoked; no deduction ought to have been made.
Decision date: 16 June 2020 | Panel Members: Arbitrator Deborah Moore, Dr John Brian Stephenson and Dr Gregory McGroder | Body system: lumbar spine and scarring (TEMSKI)
Whether comment by AMS that the injury referred for assessment did not constitute “a new injury” was inconsistent with terms of referral and consent orders; Held - AMS accepted the occurrence of injury and characterised it as an aggravation of previous injury; Jaffarie v Quality Castings Pty Ltd applied; worker’s appeal dismissed; appeal by employer asserting error in failure to make a deduction pursuant to section 323 of the 1998 Act upheld; rectification of that error did not alter certification of WPI the panel; MAC confirmed.
Decision date: 17 June 2020 | Panel Members: Arbitrator Paul Sweeney, Dr Drew Dixon and Dr David Crocker | Body system: right upper extremity and cervical spine
Demonstrable error alleged by way of failure to provide reasons for a one-tenth deduction pursuant to section 323 of the 1998 Act; AMS noted pre-injury CT scan but did not explain how the pathology disclosed contributed to the impairment; alleged that evidence did not support a deduction of one-tenth; demonstrable error further alleged by way of failure by the AMS to obtain an adequate history with regard to activities of daily living; Held – AMS on the face of the MAC had obtained an adequate history and his assessment was not against the weight of the evidence; MAC confirmed.
Decision date: 17 June 2020 | Panel Members: Arbitrator William Dalley, Dr Margaret Gibson and Dr John Brian Stephenson | Body system: lumbar spine
Respondent worker injured right knee when he twisted knee; AMS obtained history that the respondent also knocked his knee in the incident; AMS applied footnote to Table 17-31 of AMA 5 and added 2% WPI; appellant employer alleged AMS erred by doing so because AMS was wrong to base her assessment on respondent having suffered a direct injury to the front of his knee when there was no corrobatory evidence; Held - Panel held that 3.23 of Guidelines and footnote to Table 17-31 do not require that there be direct impact to front of knee for 2% to be added; the twisting motion resulted in significant force to the back of the kneecap and that of itself was an injury to the front of the knee; further, it was open to AMS, based on history she obtained to accept respondent suffered direct impact to front of his knee; not necessary for other evidence to corroborate the history the AMS obtained; MAC confirmed.
Decision date: 17 June 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Tommasino Mastroianni and Dr John Brian Stephenson | Body system: right lower extremity