Legal Bulletin No. 65

Issued 9 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.

Arbitral decisions

Hitchings v State of New South Wales t/as Department of Finance, Services and Innovation [2020] NSWWCC 339

Worker claims injury to lower back on journey from place of abode to place of employment; worker claims injury arising out of or in the course of his employment, or in the alternative, injury on a journey with a real and substantial connection between the worker’s employment and the incident out of which the injury arose; reference to Hatzimanolis v ANI Corporation and Comcare v PVYW on whether injury was in course of employment; reference to Bina v ISS Property Services P/L on whether injury arose out of employment;  reference to Bina v ISS Property Services P/L, Dewan Singh and Kim Singh t/as Krambach Service Station, and Field v Department of Education and Communities on whether there was a real and substantial connection between the worker’s employment and the incident out of which the injury arose;  Held – worker did sustain a personal injury but it did not arise out of or in the course of employment and there was no real and substantial connection between the worker’s employment and the incident out of which the injury arose; award for the respondent.

Decision date: 25 September 2020 | Member: Arbitrator John Isaksen

Kari v David Jones Ltd [2020] NSWWCC 340

Claim for section 60 expenses for and incidental to L3-5 decompression and fusion surgery; accepted injury in 2010 in nature of an aggravation of pre-existing degenerative pathology; whether aggravation ceased; whether radiculopathy in circumstances where there were multiple hernia surgeries resulting in trauma to ilioinguinal nerve; Held – proposed surgery is reasonably necessary as a result of injury; award for the worker.

Decision date: 25 September 2020 | Member: Arbitrator Rachel Homan

Fischer v Endeavour Energy & others [2020] NSWWCC 341

Noise induced hearing loss; worker currently employed in noisy employment; claim for hearing aids made on current employer who denied claim and said that employer who had paid previous compensation was liable; section 17 of the 1987 Act; Rico Pty Ltd v RTA; Blayney Shire Council v Lobley; Dawson t/as The Real Cane Syndicate v Dawson applied; current employer liable for the cost of hearing aids.

Decision date: 28 September 2020 | Member: Arbitrator Catherine McDonald

Smart Spigot Pty Ltd v Workers Compensation Nominal Insurer (iCare) & others [2020] NSWWCC 342

The second respondent suffered a knee injury in circumstances where the applicant did not hold a workers’ compensation policy; compensation payments made by the Nominal Insurer who then issued a section 145 notice; the issues contesting the section 145 notice related to the identity of the party who contracted with the second respondent and whether the second respondent was a worker; Held - credit findings made adverse to the applicant; the contemporaneous and objective evidence such as emails and bank records established that the contract was between the applicant and the second respondent; Pitcher v Langford applied; second respondent was a worker based on payments, degree of control, and that his work was part of the business of the applicant; Malivanek v Ring Group Pty Ltd applied; findings made that the second respondent was a worker engaged by the applicant; matter stood over for determination of remaining issue.

Decision date: 28 September 2020 | Member: Arbitrator John Harris

Younan v Inner West Council [2020] NSWWCC 343

Claim for weekly benefits, section 60 expenses, and lump sum compensation as a result of psychological injury; section 4 injury not in issue but respondent relies on section 11A defence in respect of performance appraisal, discipline, and transfer; detailed examination of lengthy evidence extending over a substantial period of worker’s employment with the respondent; Held - finding that psychological injury suffered by the worker was wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal, discipline and transfer; award for the respondent.

Decision date: 29 September 2020 | Member: Arbitrator Brett Batchelor

Josephsen v Cerebos (Australia) Limited [2020] NSWWCC 344

Claim for weekly benefits and future surgery; whether accepted bilateral wrist injuries caused by nature and conditions of employment as an industrial cook were resolved by prior surgery; whether nature and conditions of employment caused aggravation to pre-existing cervical spine condition; whether worker incapacitated for employment; whether proposed cervical fusion reasonably necessary;  Held – effect of wrist injuries is ongoing; nature and conditions of employment were the main contributing factor to the cervical spine aggravation; worker remains totally incapacitated for employment, as found by respondent’s work capacity decision; fact surgery is a medical necessity is not in issue; having found the aggravation which necessitates the surgery is work-related, it follows the surgery is reasonably necessary; Kooragang Cement Pty Ltd v Bates, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd, Diab v NRMA Limited followed, Kelly v Western Institute NSW TAFE Commission considered.

Decision date: 30 September 2020 | Member: Arbitrator Cameron Burge

Turner v Holcim (Australia) Holdings Pty Ltd [2020] NSWWCC 345

Claim for medical expenses due to alleged consequential conditions of right shoulder and lumbar spine as a result injury; Held – consequential conditions was as a result of accepted injury to cervical spine and right shoulder; claim for medical and related treatment expenses reasonably necessary as a result of injury; section 60 of the 1987 Act; Kooragang Cement Pty Ltd v Bates, Bouchmouni v Bakhos Matta t/as Western Red Services, Paric v John Holland Constructions Pty Ltd, Nguyen v Cosmopolitan Homes and Diab v NRMA applied.

Decision date: 30 September 2020 | Member: Arbitrator Grahame Edwards

Medical Appeal decisions

MacDonald v Kingsfeld Haulage Pty Ltd [2020] NSWWCCMA 147

Appeal from injured worker following assessment of 8% WPI for his psychological injury; the medico-legal referee retained by the worker found 17% WPI but the AMS found there had been improvement by virtue of treatment by a psychologist and over the past month commencement of an anti-depressant medication; the AMS whilst acknowledging the medico-legal referee’s assessment said that there had been an improvement which resulted in the lower WPI; the AMS also applied the provisions of chapter 1.32 of the Guidelines regarding a modifier which he assessed at 2% for the effects of treatment; Held - MAC revoked and fresh certificate issued saying maximum medical improvement had not been achieved; consideration of the terms of chapter 1.32 and Guidelines.

Decision date: 28 September 2020 | Panel Members: Arbitrator John Wynyard, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological

Gilbert-Rolfe v Wesley Community Services Limited [2020] NSWWCCMA 148

Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the certificate in relation to findings for PIRS Categories of Concentration persistence and pace; and employability; Held – grounds of appeal not made out; difference of opinion as to “more appropriate” class not a ground of appeal; importance of clinical examination; no error found; assessment based on correct criteria; MAC confirmed; Glenn William Parker v Select Civil Pty Limited, Ferguson v State of New South Wales, Marina Pitsonis v Registrar Workers Compensation Commission & Anor, Mahenthirarasa v State Rail Authority of New South Wales & Ors applied.

Decision date: 29 September 2020 | Panel Members: Arbitrator Ross Bell, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychological

Kattim Pty Ltd t/as Cincotta Discount Chemist v Jones [2020] NSWWCCMA 149

Challenge to the PIRS category of employability; worker did perform some voluntary work but this was in reality more properly included in ‘social and recreational activities’; appellant also submitted that the deduction of 10% under section 323 was inadequate; Held - Panel accepted that the worker had a prior condition but it was managed and the work injury left him with a chronic ongoing disorder; MAC confirmed.

Decision date: 29 September 2020 | Panel Members: Arbitrator Deborah Moore, Dr Patrick Morris and Dr Bradley Ng | Body system: Psychological

Registrar decision

Chalker-Howson v Community Gateway Incorporated [2020] NSWWCCR 10

Work capacity dispute; suitable employment per section 32A; worker working in an unpaid internship in role identified as suitable and currently studying for a Cert IV in that position; GP certified fit with a four week gradual return to work; Held - worker fit for suitable employment as a leisure and lifestyle coordinator; four weeks of payments awarded to account for gradual return to work.

Decision date: 30 September 2020 | Decision-maker: Delegate Parnel McAdams