Legal Bulletin No. 64
Issued 2 October 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.
District Court decision
Work injury damages claim by nurse seriously assaulted by adolescent patient in a mental health facility; application pursuant to the 2005 UCPR, rule 2.1 and rule 23.8 by plaintiff for inspection of premises by expert witness to enable preparation of expert opinion on safety issues; application by plaintiff pursuant to section 318 of the 1998 Act to rely on expert evidence not served with pre-filing statement.
Decision date: 25 September 2020 | Before: Judge Levy SC
Application for an extension of time; section 352(4) the 1998 Act; rule 16.2(5) of the 2011 Rules; Yacoub v Pilkington (Australia) Ltd, Bryce v Department of Corrective Services applied; failure to determine the claim within the time prescribed by sections 279 and 281 of the 1998 Act not a bar to the Commission’s jurisdiction; section 261(6) of the 1998 Act; awareness of injury; Unilever Australia Ltd v Petrevska applied; alleged factual error; Whiteley Muir & Zwanenberg Ltd v Kerr applied; section 261(4)(b) of the 1998 Act; serious and permanent disablement; BHP Billiton v Eastham discussed and distinguished; Broken Hill Proprietary Company Ltd v Kuhna, Gregson v L & MR Dimasi Pty Ltd applied
Decision date: 23 September 2020 | Member: Deputy President Elizabeth Wood
Worker employed for 28 years as truck driver; liability for lump sum compensation denied as to injury and main contributing factor; Held – nature of injury an aggravation; employment the main contributing factor; Qannadian v Bartter Enterprises Pty Limited applied.
Decision date: 18 September 2020 | Member: Arbitrator John Wynyard
Consequential condition; whether worker’s symptoms post-surgery to accepted lumbar injury are sufficient to warrant assessment of permanent impairment of loss of sexual function; Held – worker suffered a consequential condition to his sexual organs as a result of the surgery; whether that condition satisfies the requirements to establish whole person impairment under the relevant Workcover Guidelines is a matter for the AMS conducting the assessment; the role of the Commission is to determine whether the worker has the symptoms complained of and whether those symptoms have resulted from the treatment of the accepted injury: Dywidag Systems International Pty Ltd v Melksham applied; Kempsey Shire Council v Kirkman considered; matter remitted to Registrar for referral to AMS to determine permanent impairment arising from injury and consequential conditions to relevant body systems.
Decision date: 18 September 2020 | Member: Arbitrator Cameron Burge
Back injury, claim for medical expenses and surgery disputed by respondent,Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd, Davis v Council of the City of Wagga Wagga,Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Murphy v Allity Management Services Pty Ltd applied; Held – back surgery reasonably necessary; respondent to pay medical expenses; claim referred to AMS for assessment.
Decision date: 18 September 2020 | Member: Senior Arbitrator Glenn Capel
Claim for lump sum compensation for primary psychological injury; delay in reporting symptoms; concurrent secondary psychological condition; alternative diagnosis suggested; credibility of worker’s evidence; Held – worker sustained primary psychological injury; remitted to registrar for referral to AMS.
Decision date: 21 September 2020 | Member: Arbitrator Rachel Homan
Claim for permanent impairment for injury to left shoulder and consequential conditions to right shoulder and neck; respondent accepts injury to left shoulder but disputes consequential conditions to right shoulder and neck; Moon v Conmah Pty Ltd, Arquero v Shannons Anti Corrosion Engineers Pty Ltd considered; lack of medical evidence and explanation for claim for consequential condition affecting neck; Held – satisfied that worker has sustained consequential condition affecting the right shoulder but not the neck; assessment of permanent impairment for the left and right upper limbs total 10%; that assessment does not meet the statutory threshold to allow referral to an AMS.
Decision date: 22 September 2020 | Member: Arbitrator John Isaksen
Section 60(5) medical treatment application relating to a 2011 injury; complying agreement made in 2013 on different basis (nature and conditions) in respect of which expert opinion said that aggravation caused by subject injury (falling off chair) had ceased; different expert in 2020 said the subject injury was the cause of the pathology revealed on MRI; MRI not taken until 2017; Held – award for worker subject to bringing herself within section 59A.
Decision date: 22 September 2020 | Member: Arbitrator John Wynyard
The worker sustained an injury to the lumbar spine arising from the nature and conditions of employment; two specific incidents which the applicant claims as frank incidents and are not disputed by the respondent; RSL Queensland War Veterans Homes Ltd v Watkins, Rail Services v Dimovski & Anor Watkins distinguished and applied; the onus is on the applicant to show that even though he has been working over 20 years and doing heavy work from time to time that he has suffered an aggravation to his back; the question is not whether the work was capable of causing it but whether one is satisfied that the work and the nature of the work was the main contributing factor to the aggravation; Held -
the applicant sustained an injury arising from the nature and conditions of employment with the respondent; referral to the AMS to include assessment for injury arising from the nature and conditions of employment.
Decision date: 22 September 2020 | Member: Arbitrator Elizabeth Beilby
Lump sum claims where worker had made previous lump sum claims before 19 June 2012; issues regarding ascertaining what body parts to be referred to an AMS in relation to each injury date; Held – Pursuant to Clause 11, Part 1, Schedule 8 of the Workers Compensation Regulation 2016 the worker is entitled to have the further lump sum claims referred for assessment by an AMS.
Decision date: 23 September 2020 | Member: Senior Arbitrator Josephine Bamber
Consequential condition; whether worker’s lumbar, thoracic and cervical spine conditions are consequential upon an accepted workplace injury to her legs, and upon an accepted work-related fall at home which she suffered while using crutches following knee surgery; Held – applicant’s lumbar spine condition is consequential to her work injury and to the work-related fall at home; Kooragang Cement Pty Ltd v Bates, Diab v NRMA Ltd applied; award for the respondent on the claims relating to the thoracic and cervical spines; proposed lumbar spine surgery is reasonably necessary;respondent is to pay the costs of and incidental to the proposed lumbar spine surgery.
Decision date: 23 September 2020 | Member: Arbitrator Cameron Burge
Dispute as to whether proposed cervical discectomy and fusion was reasonably necessary, and whether the procedure concerned an artificial aid; Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Herborn v Spotless Services Australia Limited applied; Held – neck surgery was reasonably necessary and involves an artificial aid; respondent to pay for proposed surgery pursuant to sections 59(A)(6)(a) and 60 of the 1987 Act.
Decision date: 23 September 2020 | Member: Senior Arbitrator Glen Capel
Medical Appeal decision
Appeal against the assessment by the AMS of two PIRS categories as against the weight of the evidence; on preliminary review the Panel was satisfied that error was demonstrated in respect of one of the areas of function (social and recreational activities) in the light of the decision of the Court of Appeal in Ballas v Department of Education (State of NSW); panel formed the preliminary view that the reasoning in Ballas suggested that a complete reassessment of the worker was required including all areas of function, effects of treatment and consideration of section 323 deduction; submissions were sought from the parties on this point; parties agreed that jurisdiction was limited to the areas of function which were the subject of the appeal; worker was examined by an AMS member of the panel and area of function (social and recreational activities) was assessed at Class 3 instead of Class 2; Panel would have come to a different conclusion as to the effects of treatment and appropriateness of a section 323 deduction to that of the AMS; in the light of the parties submissions the Panel confined the certificate that issued pursuant to the review to the areas of function raised in the appeal in accordance with New South Wales Police Force v Registrar of the Workers Compensation Commission but expressed concern that this did not affect the actual level of impairment; although the Panel reached a different conclusion as to the area of function “social and recreational activities” the overall calculation of WPI was the same as determined by the AMS and the MAC was accordingly confirmed for the reasons given by the Panel.
Decision date: 22 August 2020 | Panel Members: Arbitrator William Dalley, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological