Legal Bulletin No. 53
Issued 17 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
Appeals; leave; extension of time; appeal from Workers Compensation Commission refusing substantial extension of time to appeal from arbitrator’s decision; requirement of “exceptional circumstances” in order to grant extension; Deputy President found exceptional circumstances not established; Deputy President considered appeal not fairly arguable; no basis for grant of leave to bring a further appeal made out
Decision date: 15 July 2020 | Before: Basten JA and Leeming JA
Whether error in determining the issue of injury to the right hip and whether the need for surgery to the right hip resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination; Raulston v Toll Pty Ltd applied
Decision date: 7 July 2020 | Member: Deputy President Elizabeth Wood
Notice of injury; claim for compensation; injurious event; prior proceedings before Arbitrator Sweeney between worker and first respondent; additional alleged aggravations of plantar fasciitis and lumbar spine; Held - notice of injury and claim established and/or excused; worker's evidence inconsistent and medical opinion contained incorrect history; general award for section 60 expenses since decision Arbitrator Sweeney limited to injury to lumbar spine in specific event 2 February 2016; otherwise award for the respondent.
Decision date: 2 July 2020 | Member: Arbitrator Philip Young
Weekly benefits and medical expenses; whether effects of injury have passed; whether injury was in the nature as claimed by worker; competing oral evidence of lay witnesses; no evidence from third witness; application of Jones v Dunkel; Held - worker suffered injury to right upper extremity, the effects of which persisted to period claimed; respondent ordered to pay weekly compensation for period claimed and reasonably necessary medical expenses.
Decision date: 2 July 2020 | Member: Arbitrator Cameron Burge
Claim for medical expenses pursuant to section 60 of the 1987 Act; cost of total right knee replacement; accepted injury to right knee in 2010; no dispute treatment reasonably necessary; dispute whether result of accepted injury; pre-existing osteoarthritis; whether aggravation resolved; lengthy gaps in complaints to doctors following return to work; whether material contribution; satisfied injury materially contributed to the need for surgery; respondent to pay the cost of surgery and associated expenses.
Decision date: 3 July 2020 | Member: Arbitrator Jill Toohey
Claim for lump sum compensation for injury to left shoulder and cervical spine and consequential right shoulder condition; injury to cervical spine disputed; absence of medical opinion for the worker addressing diagnosis and the test as set out in section 4(b)(ii) of the 1987 Act; Federal Broom Co Pty Ltd v Semlitch and AV v AW considered; Held – injury sustained pursuant to section 4(b)(ii) at the cervical spine; matter remitted to Registrar for referral to an AMS to assess degree of permanent impairment.
Decision date: 3 July 2020 | Member: Arbitrator Rachel Homan
Consequential condition; whether worker suffered right shoulder condition as a result of accepted left shoulder injury; Kumar v Royal Comfort Bedding Pty Ltd discussed; Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan applied; Held - right shoulder condition occurred as a consequence of the left shoulder injury; matter remitted to Registrar for referral to AMS.
Decision date: 3 July 2020 | Member: Arbitrator Cameron Burge
Claim for permanent impairment compensation; whether effects of accepted aggravation to cervical spine had passed or were the cause of the need for fusion surgery; Held - the effects of the aggravation were ongoing as at the time of surgery and necessitated that surgery, which in turn was reasonably necessary in the circumstances of the case; matter remitted to Registrar for referral to AMS for determination of cervical spine impairment.
Decision date: 6 July 2020 | Member: Arbitrator Cameron Burge
Claim for lump sum compensation and expenses pursuant to section 60 of the 1987 Act for injury to left knee and consequential right knee condition; nature of injury to left knee and consequential right knee condition disputed; Held – injury to left knee caused persisting significant symptoms in the knee joint; worker sustained consequential right knee condition; matter remitted to Registrar for referral to an AMS to assess degree of permanent impairment; matter to be listed for further teleconference to determine entitlement to section 60 expenses in light of time limits in section 59A once MAC received.
Decision date: 7 July 2020 | Member: Arbitrator Rachel Homan
Claim for cost of proposed right shoulder surgery under section 60 of the 1987 Act; whether a work related injury to the right shoulder occurred; whether the need for surgery to the right shoulder was reasonably necessary as a result of a work related injury; Held - worker suffered injury to the right shoulder and proposed arthroscopic capsular release surgery reasonably necessary.
Decision date: 7 July 2020 | Member: Arbitrator Michael Perry
Worker employed as a bus driver; pedestrian ran in front of bus; after counselling, worker returned to driving work; six months later worker suffered onset of pins and needles while standing in the surf; investigations inconclusive until admission to hospital for emergency surgery for cervical myelopathy; employer denied the claim based on lack of contemporaneous complaint; Jones v Dunkel submission regarding employer’s independent medical examiner accepted; Held – worker suffered frank injury superimposed on degenerative changes; award in respect of no current work capacity.
Decision date: 8 July 2020 | Member: Arbitrator Catherine McDonald
Psychological injury; section 11A of the 1987 Act; truck driver where employer uninsured; consideration of indicia in Stevens v Brodribb Sawmilling Co Pty Limited, Hollis v Vabu Pty Limited and Zuijs v Wirth Bros Pty Limited; Held – arrangements between the parties including conversations, issues of control, and other indicia establish a direct employment relationship; contract of service; exclusive relationship in place with no remittance of taxation; respondent’s actions in terminating worker’s employment not reasonable; worker totally incapacitated and award accordingly.
Decision date: 8 July 2020 | Member: Arbitrator Philip Young
Claim for weekly benefits after expiry of 130-week second entitlement period; worker incarcerated in overseas jurisdiction; insurer ceased weekly payments after incarceration and without statutory notice being issued; whether inference available that respondent make work capacity assessments in relation to worker’s entitlements; jurisdiction of Commission; whether a dispute between parties. Applicability of section 53 of the 1987 Act; Held - the evidence gives rise to an available inference that the respondent made work capacity assessments; Blatch v Archer discussed; Swain v Waverley Municipal Council, Strong v Woolworths Ltd noted; Namoi Cotton Co-operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) followed; Lee v Bunnings Group Limited; Paterson v Paterson Panel Workz Pty Limited ; NSW Trustee & Guardian on behalf of Robert Birch v Olympic Aluminium Pty Limited; Sabanayagam v St George Bank Limited; and D’Er v Glemby International (Aust) Pty Limited distinguished on this point; there was a dispute between the parties, notwithstanding the absence of a dispute notice, and the Commission has jurisdiction to hear that dispute; the cessation of weekly benefits by the respondent, whether those payments had been made in error or whether (as found) by way of work capacity assessment, must not take place without notice to the worker pursuant to section 78(1)(b) of the 1998 Act; it is not disputed that no notice was given before ceasing payments, and as such that cessation is a nullity; section 53 of the 1987 Act does not apply, as the worker was not in receipt of an award of weekly compensation; (Paterson v Paterson Panel Workz Pty Limited; Held - order the respondent to pay the worker weekly compensation for the period 8 September 2019 to 22 February 2020
Decision date: 8 July 2020 | Member: Arbitrator Cameron Burge
Worker claims weekly payments in respect of injuries to his neck, back and both shoulders as a result of the arduous nature of his employment over many years; evidence of concurrent recreational weightlifting causing shoulder injury; medical evidence did not establish that employment was the main contributing factor to shoulder injuries; Paric v John Holland Constructions Pty Ltd applied; it did establish, however, that it was the main contributing factor to the worker’s neck and back conditions; consideration of reliability worker’s evidence; Held - award for worker on the basis of no current earning capacity
Decision date: 8 July 2020 | Member: Arbitrator Paul Sweeney
Claim for lump sum compensation and medical expenses; degenerative condition in left knee; whether employment caused disease injury within the meaning of section 4(b)(i) or (ii) of the 1987 Act; whether employment main contributing factor; whether worker discharged onus of proof; Arbitrator satisfied worker had discharged onus; matter remitted to the Registrar for referral to AMS to assess whole person impairment including TEMSKI scarring; Held - respondent to pay worker’s reasonably necessary medical expenses.
Decision date: 8 July 2020 | Member: Arbitrator Jill Toohey
Medical Appeal decisions
Appellant worker suffered psychiatric injury; appellant challenged AMS’s assessment of her impairment with respect to social and recreational activities and social functioning; AMS assessed each as moderate; appellant submitted AMS erred by not assessing impairment in these categories as severe; Held – Appeal Panel considered AMS had regard to all relevant matters and provided sound reasons for his assessment; MAC confirmed.
Decision date: 2 July 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Lana Kossoff and Dr Patrick Morris | Body system: psychological
Worker sustained an injury to her lumbar spine and consequential condition to the left ankle and foot; statement of the worker concerning the examination by the AMS and a report of her physiotherapist not admitted as fresh evidence; whether the AMS fell into error or made assessment on the basis of incorrect criteria in assessing lumbar spine as DRE I; Held - Panel accepted that assessment of lumbar spine as DRE I was inconsistent with findings made on examination by AMS which amounted to non-verifiable radicular complaints; Panel assessed lumbar spine as DRE II; Panel agreed with assessment by the AMS of left lower extremity; Panel assessed 7% WPI; MAC revoked.
Decision date: 2 July 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr James Bodel and Dr David Crocker | Body system: lumbar spine, left lower extremity
Merivale Investments Pty Ltd t/as The Trustee for Hemmes Administration Trust v Manandhar  NSWWCCMA 120
Additional WPI for impact on ADLs; worker resides in Nepal; AMS conducted an assessment on the papers; worker had a spinal fusion; AMS did not have additional statement from the worker in relation to any impact on ADLs; initial assessment was 20% WPI; AMS then amended to add 2% WPI; respondent appealed on the basis that the assessment of the impact of an injury or condition on ADLs should be verified by reference to objective assessment; self-reporting is but one of the factors in assessing the restriction of ADLs; Held – Panel found in the absence of any objection to the further statement, the AMS was entitled to consider it and that the additional 2% WPI was consistent with the evidence; MAC confirmed.
Decision date: 3 July 2020 | Panel Members: Arbitrator Deborah Moore, Dr Roger Pillemer and Dr Margaret Gibson | Body system: lumbar spine
Worker sustained an injury on 16 October 2001 when a tree branch fell on his head; previous settlement in 2003; AMS assessed 40% brain damage, 40% permanent impairment of neck, 0% permanent loss of efficient use of both arms and legs and 0% for loss of sexual organs; AMS erred in failing to take into account subjective considerations in assessment under the Table of Disabilities; Cummins v G James Safety Glass Pty Ltd, Scrimshaw v SAR Wood Pty Limited, Malcolm v Roads, Department of Public Works v Morrow and Traffic Authority considered; re-examination in order to take a history of function; claim in respect for loss of use of arms and legs during seizures not be considered to constitute or cause a permanent loss of efficient use of the upper or lower limbs; mere possibility of further seizures in this case does not amount to any permanent impairment of function in the arms and legs; Held – Panel assessed 40% brain damage, 40% permanent impairment of neck, 5% permanent loss of efficient use of both arms at or above the elbow, 13% permanent loss of efficient use of both legs at or above the knee and 12.5% for loss of sexual organs; MAC revoked.
Decision date: 6 July 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Mark Burns and Dr John Garvey | Body system: neurological, cervical spine, right upper extremity, left upper extremity, right lower extremity, left lower extremity, sexual function
The worker suffered injury to both achilles heels; the AMS assessed impairment based on muscle manual testing pursuant to Part 17.2e of AMA5; appellant submitted that manual muscle testing could not be used due to the presence of pain and that previous examiners had made findings which differed by more than one grade; appellant also submitted error by failure to refer to later report of its qualified doctor; Held – the requirements of Part 17.2e provided that manual muscle testing could not be used where “performance was inhibited by pain or the fear of pain”; other Panel decisions relied on by the appellant applied an incorrect test; this Panel was otherwise not bound by findings of fact in other cases; the AMS erred in applying manual muscle testing to the left lower extremity as two examiners had made findings which differed by more than one grade inconsistent with Part 17.2e; that error only applied to the left lower extremity; the failure to refer to a recent medical report was not “critical evidence” as discussed in Mifsud v Campbell as AMS had referred to an earlier report which expressed a similar opinion; MAC revoked in part.
Decision date: 7 July 2020 | Panel Members: Arbitrator John Harris, Dr Brian Stephenson and Dr David Crocker | Body system: left upper extremity, left lower extremity, right lower extremity, scarring
Injury to multiple body parts in 1998; worker previously compensated; assessment under Table of Disabilities; worker appealed complaining the AMS assessed on the basis of incorrect criteria and made demonstrable errors; worker complained that the AMS should have found deterioration from prior award; Held - AMS entitled to rely on his examination findings on the day of assessment; AMS’s role is not to assess deterioration but to assess the degree of permanent impairment as a result of injury and is entitled to rely on his examination findings on the day of assessment; MAC confirmed.
Decision date: 7 July 2020 | Panel Members: Arbitrator Jane Peacock, Dr Frank Machart and Dr Robert Kuru | Body system: sexual function, lumbar spine, thoracic spine, cervical spine, left upper extremity, left lower extremity, right lower extremity
Whether assessment based on incorrect criteria; whether demonstrable error on the face of the Certificate in relation to section 323 deductions under section 323(2) of the 1998 Act for pre-existing injury, condition, or abnormality; inconsistency of presentation; whether AMS erred in using paragraph 2.16 of SIRA Guidelines to assess the right shoulder; whether AMS should have assessed previous injuries under section 322 of the 1998 Act as part of the assessment requested; Held – grounds of appeal not made out; Fire & Rescue NSW v Clinen, Vitaz v Westform (NSW) Pty Limited, Ryder v Sundance Bakehouse,Greater Western Area Health Service v Austin considered; no error in using paragraph 2.16 of the SIRA Guidelines pursuant to paragraph 1.36; AMS correctly assessed the injuries from the date of injury referred; deduction of one-tenth open to the AMS; MAC confirmed.
Decision date: 8 July 2020 | Panel Members: Arbitrator Ross Bell, Dr David Crocker and Dr Brian Noll | Body system: left upper extremity, right upper extremity