Legal Bulletin No. 68
Issued 30 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 decisions
Procedure; application for leave to commence proceedings under section 151D of 1987 Act; whether plaintiff has arguable cause of action; prejudice; notice of intention to claim.
Decision date: 23 October 2020 | Before: Russell SC DCJ
Procedure; application for leave to commence proceedings under section 151D of the1987 Act; whether plaintiff has arguable cause of action; explanation for delay; prejudice; plaintiff must call sufficient evidence when seeking exercise of discretion.
Decision date: 23 October 2020 | Before: Russell SC DCJ
Weight of medical evidence in the Commission; expert evidence regarding ‘stress’; issues of causation in the Commission; application of Kooragang Cement Pty Ltd v Bates, the ‘but for’ test in causation.
Decision date: 20 October 2020 | Member: Deputy President Michael Snell
Substantive reasons previously provided in the matter; Smart Spigot Pty Ltd v Workers Compensation Nominal Insurer considered; applicant raised a further defence to the section 145 notice issued by the nominal insurer; that issue stood over; applicant subsequently indicated it would not be supplying written submissions in support of that defence; based on the absence of any submission, that defence was rejected; Held – order made that the applicant reimburse the nominal insurer in accordance with the section 145 notice; order to reimburse “for any further compensation payable” rejected as being inconsistent with section 145 of the 1987 Act and there was no way of knowing whether future payments were properly recoverable under the 1987 Act.
Decision date: 28 September 2020 | Member: Arbitrator John Harris
Claim for section 60 expenses for and incidental to right total knee replacement; accepted right knee injury in 1999; limited contemporaneous medical evidence; whether injury involved meniscal tear; whether aggravation of pre-existing degenerative changes ceased; Held – proposed surgery is reasonably necessary as a result of injury; award for the worker.
Decision date: 14 October 2020 | Member: Arbitrator Rachel Homan
Claim for weekly payments and medical expenses under 1987 Act; worker alleged injury in an incident on 5 April 2016 in the course of his employment with the respondent as a painter; respondent voluntarily paid the worker compensation under the 1987 Act for over twelve months then ceased such payments on the basis that the applicant had fabricated the incident; Briginshaw v Briginshawapplied; Department of Education & Training v Sinclair considered regarding use of evidence of an admission of compensable injury by voluntary payments of compensation; Held - finding that worker sustained injury to his lumbar spine; award for the respondent with respect to other ancillary injuries.
Decision date: 15 October 2020 | Member: Arbitrator Michael Perry
Claim for psychiatric injury made over three years out of time; worker suffered from pre-existing psychiatric condition which worker denied: clinical notes from GP edited to eliminate relevant dates; hearsay record in expert reports relied on; Qannadian v Bartter Enterprises Pty Limited applied; respondent made inadequate effort to investigate; Jones v Dunkel applied; worker claimed ignorance of her entitlement; injured working for insurance company and claimed income protection; workers compensation mentioned in income protection expert’s opinion within seven months of injury; Held – worker suffered aggravation to pre-existing psychological condition but statute barred by section 261(4) of the 1998 Act.
Decision date: 20 October 2020 | Member: Arbitrator John Wynyard
Medical Appeal decisions
Whether assessment based on incorrect criteria; and whether demonstrable error on the face of the MAC in relation to findings for PIRS Categories; whether AMS relied on evidence with insufficient weight; Held – grounds of appeal not made out; difference of opinion 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: 20 October 2020 | Panel Members: Arbitrator Ross Bell, Professor Nicholas Glozier and Dr Patrick Morris | Body system: psychological
Psychological injury; appellant alleged error in assessment by the AMS under the categories of self-care and personal hygiene, social and recreational activities, travel, social functioning and concentration, persistence and pace in the permanent impairment rating scale; Held - AMS did not make a demonstrable error nor did he assess on the basis of incorrect criteria; MAC confirmed.
Decision date: 21 October 2020 | Panel Members: Arbitrator Jane Peacock, Professor Nicholas Glozier and Dr Julian Parmegiani | Body system: psychological
Work capacity dispute; suitable employment per section 32A of 1987 Act; worker suffered a back injury when lifting an envelope off the floor; had always worked in physical roles; worker had significant physical restrictions due to injury and little previous relevant experience; consideration of Wollongong Nursing Homes v Dewar; held that customer services officer and disability support officer not suitable employment; award of weekly compensation made.
Decision date: 19 October 2020 | Delegate: Parnel McAdam