Legal Bulletin No. 51
Issued 3 July 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
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWSC 781
Workers compensation; assessment and amount of compensation; discontinuation of payments; construction of the 1987 Act, section 39; whether appellants were entitled to payments during the period between discontinuation and resumption of payments following assessment by an approved medical specialist.
Decision date: 17 June 2020 | Before: White JA, Brereton JA and Simpson AJA
Supreme Court decisions
Civil procedure; judicial review; administrative decision of medical appeal panel; where plaintiff suffered psychological injury at work; where dispute as to degree of whole person impairment; where request by plaintiff for re-examination; where no re-examination by medical appeal panel; where no reasons or consideration given.
Decision date: 30 June 2020 | Before: Harrison J
Administrative law; judicial review; workers compensation; where Registrar referred assessment of whole person impairment arising from specific body parts to AMS; where second defendant found AMS erred by going beyond terms of referral; whether referral entitled AMS to assess degree of permanent impairment arising from body parts not specifically referred; relevance of employer’s concession that left wrist ought to have been included in referral; whether error of law on face of the record.
Decision date: 30 June 2020 | Before: Adamson J
Section 11A of the 1987 Act; whether the disciplinary action taken by the employer was reasonable; Department of Education and Training v Sinclair; section 352(5) of the 1998 Act; requirement to establish error – Super Retail Group Services Pty Ltd v Uelese, Dick’s Diesel Pty Ltd v Caddaye applied; whether failure to consider or give sufficient weight to material evidence Raulston v Toll Pty Ltd applied; whether the Senior Arbitrator’s reasons were sufficient; whether inconsistency in those reasons
Decision date: 19 June 2020 | Member: Deputy President Elizabeth Wood
The requirements of section 352(3) of the 1998 Act; leave to appeal an interlocutory decision pursuant to section 352(3A) of the 1998 Act.
Decision date: 17 June 2020 | Member: Deputy President Michael Snell
Claim for weekly benefits and medical expenses in relation to a left knee injury; worker had clocked off and was on her way to pay for personal grocery items on the way out of the store when injured; whether “in the course of employment”; whether employment a substantial contributing factor to the injury; Hatzimanolis v ANI Corporation Ltd and Comcare v PVYW applied; Held – injury sustained in the course of employment; section 9A of the 1987 Act satisfied; award for worker.
Decision date: 18 June 2020 | Member: Arbitrator Rachel Homan
Consequential condition; worker injured both knees in 2013; claimed onset of back symptoms consequential; prior back history involving fractures of transverse process in 2003 not known to experts; back condition became significant following procedures on knees in 2018 and consequent worsened antalgic gait; Murphy v Allity applied; Held - back condition consequential.
Decision date: 18 June 2020 | Member: Arbitrator John Wynyard
Claim for cost of proposed L4/5 total disc replacement pursuant to section 60 of 1987; sufficiency of medical evidence in context of physiotherapy and social media evidence suggesting good back function; Hellessey v Metlife Insurance Ltd considered; Held - that the evidence did not establish that proposed treatment was reasonably necessary at present.
Decision date: 19 June 2020 | Member: Arbitrator Paul Sweeney
Claim for one assessment to be made for permanent impairment for both arms; whether the worker sustained a consequential condition of the right shoulder which results from injury to the left shoulder; consideration of Moon v Conmah P/L; whether left shoulder injury materially contributes to the right shoulder condition; consideration of Ozcan v Macarthur Disability Services Ltd; whether injury to the left shoulder and right shoulder result from same injurious incident; consideration of Findlay v Department of Ageing, Disability & Home Care; Held – worker sustained a consequential condition of the right shoulder which results from injury to the left shoulder; left shoulder injury materially contributes to the right shoulder condition; injury to the left shoulder and right shoulder does not result from same injurious incident; there can be the one assessment of impairment for injury to the left arm and right arm.
Decision date: 19 June 2020 | Member: Arbitrator John Isaksen
Pivot Communications Pty Ltd v Workers Compensation Nominal Insurer – icare & Ors v  NSWWCC 207
Claim for psychological injury; disease injury; applicant employer uninsured; application for determination of employer’s liability to reimburse compensation paid to worker; whether employment caused or contributed to adjustment disorder; whether employment contributed to aggravation or exacerbation of alcohol misuse disorder; whether employment main contributing factor; Held - Arbitrator not satisfied employment was the main contributing factor to either condition; applicant employer not liable to reimburse amount claimed.
Decision date: 22 June 2020 | Member: Arbitrator Jill Toohey
Right knee Injury; proposed treatment in the form of right total knee replacement; Respondent disputed that proposed surgery reasonably necessary as a result of the injury - Diab v NRMA considered; Held - award for the worker.
Decision date: 23 June 2020 | Member: Arbitrator Jane Peacock
AISL Pty Ltd t/as Rosehill College v icare (as agent the for the Workers Compensation Nominal Insurer)  NSWWCC 209
Action in respect of reimbursement sought by nominal insurer from applicant for benefits paid to injured worker; correct deemed date of injury in a claim relating to injury by way of a disease of gradual process in a claim for weekly benefits; Held - correct date is that on which the injured worker suffers an incapacity of the nature claimed in the relevant proceedings; GIO Workers Compensation (NSW) Ltd v GIO General Ltd, Stone v Stannard Brothers Launch Services Pty Ltd and Inghams Enterprises Pty Ltd v Thoroughgood applied; the relevant deemed date of injury fell within a period during which the applicant employer was relevantly insured for workers compensation, and accordingly the applicant is not required to reimburse the nominal insurer for compensation paid to the injured worker.
Decision date: 24 June 2020 | Member: Arbitrator Cameron Burge
Medical Appeal decisions
Psychological Injury; appellant worker alleged error assessment by the AMS under three categories in PIRS; Social Functioning, travel and Employability; Panel satisfied as to error by AMS; AMS did not adequately explain, given the history taken by him, his findings on mental state examination and the other evidence that was before him, how he equated the appellant’s ability to parent her child and the basic activities performed by her in conjunction with parenting (driving a child to school, ‘occasionally’ preparing meals, and buying groceries) on the days she has custody, to an ability to perform consistent paid work, at least part time, particularly given the chronic symptoms he identifies; Appellant worker re-examined; Held - MAC revoked.
Decision date: 22 June 2020 | Panel Members: Arbitrator Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong | Body system: psychological
Psychological injury to police officer; submissions regarding inaccurate application of PIRS categories; Jenkins v Ambulance Service of NSW, State of NSW v Kaur, Parker v Select Civil Pty Ltd applied; Held - MAC confirmed.
Decision date: 22 June 2020 | Panel Members: Arbitrator Catherine McDonald, Professor Nicholas Glozier and
Dr Patrick Morris | Body system: right upper extremity and cervical spine
Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the Certificate in relation to the finding of upper digestive tract disease; paragraph 16.9 of the Guidelines; Held - grounds of appeal not made out; finding of rateable impairment open to the AMS; findings on examination and history of symptoms satisfy relevant criteria; importance of exercise of clinical judgement of AMS discussed; presumption of regularity; difference of opinion insufficient; Glenn William Parker v Select Civil Pty Limited ; Ferguson v State of New South Wales;Vegan; Bjkov v ICM Property Services Pty Limited; and Jones v The Registrar followed; MAC confirmed.
Decision date: 23 June 2020 | Panel Members: Arbitrator Ross Bell, Dr Richard Crane and Dr John Garvey | Body system: digestive tract
The worker sustained an injury to his visual system in the course of his employment as a special needs teacher when he contracted chicken pox; AMS assessed 85% WPI of the visual system and deducted 69% WPI for pre-existing injury, which resulted in a total assessment of 16% WPI; Appeal Panel found that the AMS erred in failing to properly consider the cause of the current impairment and consider or explain how it was that the pre-existing impairment in fact contributed to the current impairment; in relation to the right eye, the Appeal Panel concluded that all of the impairment assessed resulted from the exposure to the chicken pox virus; in relation to the left eye the Appeal Panel concluded that the pre-existing condition in the left eye (retinopathy of prematurity) caused loss of vision in that eye and a deduction should be made pursuant to section 323 for total loss of vision in the left eye; Held - MAC revoked; Appeal Panel assessed 85% WPI less 24% WPI resulting in an assessment of 61% WPI.
Decision date: 24 June 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Frank Bors and Dr Ian Wechsler | Body system: visual system