Legal Bulletin No. 66
Issued 16 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.
Application for an extension of time; section 352(4) of the 1998 Act; rule 16.2(5) of the 2011 Rules; Yacoub v Pilkington (Australia) Ltd, Bryce v Department of Corrective Services applied; application of the former sections 44C, 44E, 44F and Item 8 of Sch 3 to the1987 Act; calculation of pre-injury average weekly earnings where a worker has two or more employers and was injured prior to 21 October 2019; Schedule 1.1 of the Workers Compensation Legislation Amendment Act 2018; jurisdiction of the Commission to determine a work capacity decision.
Decision date: 6 October 2020 | Member: Deputy President Elizabeth Wood
Claim for lump sum compensation for accepted injury to thoracic and lumbar spine and a consequential urological condition; consequential urological condition disputed; absence of urodynamic studies; reliability of worker’s evidence; concurrent psychological condition; Held – worker sustained consequential urological condition; remitted to Registrar for referral to AMS.
Decision date: 1 October 2020 | Member: Arbitrator Rachel Homan
Claim for further permanent impairment of back, left leg, and neck due to a consequential condition; respondent concedes permanent impairment of back and loss use of left leg and will pay assessments relied upon by worker but disputes consequential condition affecting neck; Moon v Conmah Pty Ltd, Kooragang Cement Pty Ltd v Bates considered; Held – not satisfied that the worker sustained a consequential condition affecting his neck; otherwise award for worker for further permanent impairment of back and loss of use of left leg, as well as medical expenses for treatment of lumbar spine.
Decision date: 1 October 2020 | Member: Arbitrator John Isaksen
The only issue in dispute was the calculation of the PIAWE in the first 52 weeks, specifically with respect to whether the worker was entitled to compensation for any “shift allowance payment”; Held – the meaning of the words is determined by text, context and purpose; Military Rehabilitation v May; the respondent’s argument that the words were limited to the payment for an overtime shift rejected as this required reading words into the section which were not required; Taylor v The Owners-Strata Plan No 11564 applied; respondent’s submission that the definition applied by icare in its Handbook was relevant to interpretation was rejected as there was no basis for the section to be interpreted in accordance with that document; Tan v NAB applied; “shift allowance payment” in section 44C of the 1987 Act meant an allowance specifically paid when working a shift such as overtime, evening or weekend shifts; it was not restricted to overtime; it did not apply to monetary allowances paid for productivity, inclement weather, site, meal or travel; applicant’s entitlement in the 52 week period post injury calculated on ordinary earnings and the average of the overtime over the previous 30 weeks.
Decision date: 6 October 2020 | Member: Arbitrator John Harris
Claim for permanent impairment from right and left inguinal hernia, consequential condition affecting the upper and lower gastrointestinal tracts, and scarring; respondent concedes right inguinal hernia but disputes other injuries and conditions; worker relies on expert opinion that employment was a possible cause of left inguinal hernia; EMI (Australia) Ltd v Bes, Moon v Conmah Pty Ltd, Kooragang Cement Pty Ltd v Bates considered; consideration of consequential condition affecting the upper and lower gastrointestinal tracts; Held – review of lay and medical evidence allows finding that employment was probable cause of left inguinal hernia; worker has consequential condition affecting the upper gastrointestinal tract as a result of hernia injury and taking medication but not a consequential condition affecting the lower gastrointestinal tract which allows referral to AMS; referral to AMS for assessment of permanent impairment of right and left inguinal hernia, consequential condition affecting the upper gastrointestinal tract, and scarring.
Decision date: 6 October 2020 | Member: Arbitrator John Isaksen
Claim for weekly payments in respect of incapacity alleged to arise from psychological injury resulting from incidents in the workplace commencing with a restructure in 2013; worker was not meeting KPIs and performance targets in 2017 and was performance managed; he was due to attend a meeting with his managers with respect to disciplinary action arising from his performance appraisal; suffered cardiac symptoms the night before meeting and hospitalised for cardiac surgery; off work; subsequently diagnosed with a psychological condition; liability denied on the basis of injury and section 11A with respect to transfer, performance appraisal, discipline and dismissal; Held – evidence of fellow worker corroborated problems in the workplace providing a fair climate for the acceptance of the respondent’s IME conclusion that the applicant suffered a psychological injury due to employment; section 11A defence not established as the actions with respect to performance appraisal, discipline and dismissal were not wholly or predominantly the cause of the psychological injury; evidence of the treating psychiatrist and applicant’s IME accepted as to no capacity for employment and award of weekly payments accordingly.
Decision date: 6 October 2020 | Member: Arbitrator William Dalley
Application for reconsideration by respondent of AMS’s decision; respondent obtained surveillance of worker attending church seven weeks after she had told AMS she could no longer attend church; exercise of discretion; Held – no compelling evidence that worker’s condition materially improved and no probative evidence worker was not telling truth; respondent’s reconsideration application refused.
Decision date: 6 October 2020 | Member: Arbitrator Philip Young
Claim by abattoir worker; where worker suffered previous injuries for which compensation was paid; where worker did not provide notice of injury in writing or make a claim in writing within three years; where employer called no evidence on the issues of injury and claim; sections 254 and 261 of the 1998 Act considered; Quinlivan v Portland Harbour Trust applied; consideration of absence of contemporaneous medical evidence of injury in the context of pre-existing symptomatology; determined that worker had established a disease claim based upon the nature of his employment but not frank injuries; Held – employer not prejudiced by absence of notice; worker’s submission of a medical certificate and discussion with an officer of the respondent sufficient to establish a claim; matter referred to AMS.
Decision date: 6 October 2020 | Member: Arbitrator Paul Sweeney
Threshold dispute for work injury damages; whether worker can seek a combined assessment of different body parts by AMS on basis of left upper extremity and consequential condition of accepted right shoulder injury; whether worker estopped from asserting left shoulder is a consequential condition as a result of bringing previous claims and proceedings alleging two separate injuries on separate dates; Held - worker is estopped from alleging left shoulder a consequential condition of right shoulder injury; Port of Melbourne Authority v Anshun, Israel v Catering Industries (NSW) Pty Ltd, Bruce v Grocon Ltd applied; award for the respondent.
Decision date: 7 October 2020 | Member: Arbitrator Cameron Burge
Right hip; injury alleged to consist in the aggravation, acceleration, exacerbation or deterioration of underlying disease to which employment alleged to be the main contributing; consideration of aggravation, acceleration, exacerbation or deterioration and disease provisions; liability disputed; AV v AW referred to; Held – award for the worker.
Decision date: 7 October 2020 | Member: Arbitrator Jane Peacock
Medical Appeal decisions
Appeal by employer against decision of AMS in psychological injury case where AMS assessment conducted by video and audio; error alleged in relation to manner the assessment was conducted, failure to consider all material; failure to perform cognitive test and failure to make section 323 deduction; Held – Appeal unsuccessful as no demonstrable error made or incorrect criteria applied by AMS; finding that manner assessment conducted was appropriate and both parties were provided with procedural fairness; AMS’s MAC confirmed.
Decision date: 1 October 2020 | Panel Members: Senior Arbitrator Josephine Bamber, Dr Julian Parmegiani and Dr Patrick Morris | Body system: Psychological
Injury to lumbar spine, left lower extremity and nervous system; appellant alleged error in assessment by the AMS and worker agreed; Panel also found error; re-examination by AMS member of the Panel; Held - MAC revoked.
Decision date: 7 October 2020 | Panel Members: Arbitrator Jane Peacock, Dr Drew Dixon and Dr Robin Fitzsimons | Body system: Left lower extremity, Lumbar Spine, Nervous System