Legal Bulletin No. 67
Issued 23 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; whether error of fact or law as required by s 352(5) of the 1998 Act; acceptance of and weight to be afforded to the evidence; Whiteley Muir & Zwanenberg Ltd v Kerr applied; adequacy of reasons; ADCO Constructions Pty Ltd v Ferguson, Beale v Government Insurance Office (NSW) applied.
Decision date: 15 October 2020 | Member: Deputy President Elizabeth Wood
Whether the employment was connected with New South Wales; section 9AA of the 1987 Act; whether the worker suffered injury in the course of the employment; whether employment the main contributing factor to the aggravation etc of a disease; claim of legal professional privilege; credit issues; Held – the employment was connected to NSW; the worker suffered injury in the course of the employment, and the employment was the main contributing factor to the aggravation etc; Ferguson v WorkCover Queensland, Avon Products Pty Ltd v Falls,Martin v R J Hibbens Pty Ltd; Tamboritha Consultants Pty Ltd v Knight considered.
Decision date: 8 October 2020 | Member: Arbitrator Ross Bell
Claim for lump sum compensation; section 66 of the 1987 Act; consequential condition of left shoulder as a result of accepted injury to the left shoulder; Kooragang Cement Pty ltd v Bates, Moon v Conmah Pty Ltd, Watsons’ Calcairn Hotel Pty Ltd v Dwyer, Schembri v Blacktown City Council, Bouchmouni v Bakhos t/as Wester Red Services, Australian Traineeship System v Turner; Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timber Products Pty Ltd, Winter v New South Wales Police Force, Paric v John Holland Constructions Pty Ltd discussed; Held – the worker suffered a consequential condition of the right shoulder as a result of injury; matter remitted to the Registrar for referral to an Approved Medical Specialist to assess permanent impairment.
Decision date: 9 October 2020 | Member: Arbitrator Grahame Edwards
Claim for proposed knee replacement surgery; dispute as to causation and apportionment between respondents in relation to injuries in 1985, 1994 and 2005; Held – all three injuries materially contributed to the need for surgery; liability apportioned 70% to first respondent and 15% each to second and third respondents.
Decision date: 12 October 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for weekly benefits, section 60 expenses and costs of and incidental to proposed right ankle surgery; injury to right ankle accepted but nature and effects of injury disputed; diverging opinions from treating specialists and late diagnosis of pathology not shown on earlier radiological investigations; previous non-work injury; section 59A; Held – award for worker.
Decision date: 12 October 2020 | Member: Arbitrator Rachel Homan
Claim for weekly compensation, medical expenses and cost of proposed surgery; dispute as to whether worker injured his neck and suffered a secondary psychological condition, whether proposed cervical decompression and fusion was reasonably necessary, and whether the procedure concerned an artificial aid; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Federal Broom Co Pty Ltd v Semlitch, Kumar v Royal Comfort Bedding Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd and Herborn v Spotless Services Australia Limited considered and applied, Held – Worker injured his neck and developed a secondary psychological condition; neck surgery was reasonably necessary and involves an artificial aid; respondent to pay weekly compensation and medical expenses including cost of proposed surgery pursuant to sections 36, 37, 59(A)(6)(a) and 60 of the 1987 Act.
Decision date: 13 October 2020 | Member: Senior Arbitrator Glenn Capel
Psychological injury; whether effects of injury are causative of accepted incapacity and need for medical treatment, or whether superseded by effects of intervening personal events; Held - effects of work-related injury ongoing; award for worker on claim for weekly benefits and for medical treatment; Calman v Commissioner of Police considered, Kooragang Cement Pty Ltd v Bates, Pyrmont Publishing Co Pty Limited v Peters applied.
Decision date: 13 October 2020 | Member: Arbitrator Cameron Burge
Claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by being excluded in workplace by management; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken by way of retrenchment; Attorney General’s Department v K, Wollongong Nursing Home v Dewar considered and applied; whether any real jobs that the worker is able to do; Held – psychological injury caused by multiple stressful events in workplace; action proposed to be taken in respect of retrenchment not the whole or predominant cause of injury; application of section11A; award of weekly payments of compensation for no current work capacity from 13 January 2020, and payment of reasonable medical expenses.
Decision date: 14 October 2020 | Member: Arbitrator John Isaksen
Consequential condition of the lumbar spine caused by altered gait as a result of accepted injury to the right knee, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Ltd, Bouchmouni v Bakhos Matta t/as Western Red Services, Australian Traineeship System v Turner, Schembri v Blacktown City Council,Winter v New South Wales Police, Paric v John Holland Construction Pty Ltd considered andapplied, Held – worker suffered a consequential condition of the lumbar spine as a result of injury.
Decision date: 14 October 2020 | Member: Arbitrator Grahame Edwards
Worker claimed compensation for 17% WPI resulting from psychiatric injury; issue whether employment was main contributing factor to worker contracting psychiatric illness which was agreed to be a disease; consideration of whether events that happened outside of workplace and which were factors that contributed to worker contracting psychiatric illness were employment factors; Held - they were and held employment was main contributing factor to worker contracting psychiatric illness; award made in favour of worker.
Decision date: 14 October 2020 | Member: Arbitrator Marshal Douglas
Medical Appeal decisions
Worker was a school teacher who sustained an accepted psychological injury; matter was remitted by the NSW Court of Appeal after the decision of the first MAP was quashed; agreed between the parties that the AMS erred in deducting 10% on the basis of section 323 of the 1998 Act, since section 323 applies only to a pre-existing injury and not to a subsequent injury; consideration of the respective seriousness of the two injuries and whether injury in 2014 fell into either the first, second or third “Oakley categories”; Government Insurance Commissions v Oakley, Government Insurance Office of NSW v Aboushadi, Nicol v Macquarie University considered;creditof worker; the inconsistencies in the histories provided by worker related to her being a poor and vague historian as well as to her psychiatric condition; Held - that there was no legal basis for apportioning or reducing the lump sum payable in respect of such WPI, as no legislation permits this to be done; MAC revoked and worker assessed at 19% WPI.
Decision date: 9 October 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Michael Hong and Dr Patrick Morris | Body system: Psychological
Appeal against the assessment of 0% WPI in respect of haemorrhoids; lumbar spine and consequential condition of the digestive system referred for assessment; AMS assessed 7% WPI lumbar spine and 7% WPI upper digestive tract with an assessment of 0% WPI in respect of haemorrhoids; appeal against the assessment of haemorrhoids based on failure to give reasons and absence of examination; Held – demonstrable error found in failure to provide reasons and to examine the worker; AMS panel member examined the worker and noted absence of haemorrhoids; MAC upheld by majority reaching the same conclusion as to WPI as the AMS.
Decision date: 12 October 2020 | Panel Members: Arbitrator William Dalley, Dr Margaret Gibson and Dr John Garvey | Body system: Lumbar spine
Multiple consequential conditions as a result of myalgic encephalomyelitis/chronic fatigue syndrome; assessment under the Table of Disabilities for hearing loss, loss of power of speech and loss of sense of smell; general principles regarding assessment under the Table; assessment of hearing loss under Table was appropriate; deduction in respect of previous MAC was not; no allowance for tinnitus under Table; distinction between loss of power of speech and loss of language ability as a result of brain damage; use of Sensonics smell test was appropriate; Held - MAP revoked
Decision date: 12 October 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Henley Harrison and Dr Joseph Scoppa | Body system: Hearing loss, loss of sense of small, loss of power of speech
Appeal against failure by AMS to make any deduction pursuant to section 323 in circumstances where it was common ground that the worker had suffered two prior psychological injuries whilst working for the respondent; Cullen v Woodbrae Holdings Pty Ltd considered and applied; error found in the failure by the AMS to explain why he had made no deduction, but MAC confirmed; further appeal ground that the AMS had not assessed the PIRS category of social and recreational activities in accordance with the Guides; Ferguson, Parker and Jenkins considered; Held - appellant employer’s case no more than a disagreement about which reasonable minds might differ; MAC confirmed.
Decision date: 12 October 2020 | Panel Members: Arbitrator John Wynyard, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological
Psychological injury; worker alleged error in assessment by the AMS under the categories of self-care and personal hygiene, social and recreational activities, and social functioning in the PIRS; Held - AMS did not make a demonstrable error nor did he assess on the basis of incorrect criteria; MAC confirmed.
Decision date: 13 October 2020 | Panel Members: Arbitrator Jane Peacock, Dr John Baker and Dr Patrick Morris | Body system: Psychological
Work capacity dispute; suitable employment per section 32A; worker’s career in film and television production; roles of technical producer and floor manager considered; Held – that role of floor manager was a real role, not an illusory one; that role a step down in career not a relevant consideration; interim payment direction declined.
Decision date: 12 October 2020 | Decision-maker: Delegate Parnel McAdams