Legal Bulletin No. 69
Issued 6 November 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
Workers Compensation; application for leave to extend time to commence proceeding; work injury damages under section 151D(2) of the 1987 Act; explanation for delay set out in affidavit from injured plaintiff; Gower v State of New South Wales applied; whether adequate explanation has been given for the delay (including whether the limitation period has been deliberately run down), the apparent strength of the case, and the extent of actual prejudice to the respondent; Held - no deliberative conduct in running down limitation period; plaintiff be granted leave to commence the proceeding, nunc pro tunc, as from 27 April 2020.
Decision date: 30 October 2020 | Before: Abadee DCJ
Locker-Cole v Woolworths Group Limited (incorrectly sued as Philip Leong Stores Pty Ltd)  NSWWCC 359
Work capacity dispute; worker suffered a psychological injury in the course of his employment; whether worker could undertake suitable employment or had no current work capacity; Held – not satisfied worker could not undertake suitable employment; weight of medical evidence supported the only barrier to return to work was contact with a particular employee; section 32A of the 1987 Act applied; worker capable of undertaking suitable employment at a different work location where he was not exposed to a risk of further contact with the employee; award for respondent on the claim for weekly benefits compensation.
Decision date: 22 October 2020 | Member: Arbitrator Nicholas Read
Wannous T-as Blue Rays Cafe v Workers Compensation Nominal Insurer (iCare) & others  NSWWCC 360
Section 145(1) recovery from uninsured employer; dispute as to whether the applicant employer was an “exempt employer”;Kula Systems Pty Ltd v Workers Compensation Nominal Insurer applied; Held – applicant was an “exempt employer” for the purposes of section 155AA of the 1987 Act; applicant not liable to reimburse the nominal insurer in respect of weekly compensation and medical expenses paid to or on behalf of the worker.
Decision date: 22 October 2020 | Member: Senior Arbitrator Glenn Capel
Lump sum claim agreed injury to lumbar spine; dispute as to whether there was injury to the left shoulder and left knee; Held – award for the respondent in relation to claims in respect of the left shoulder and left knee; lump sum claim in relation to the agreed lumbar spine injury is not referred to AMS for assessment because it does not meet the threshold in section 66(1) of the 1987 Act.
Decision date: 23 October 2020 | Member: Senior Arbitrator Josephine Bamber
Lump sum claim with injury in relation to multiple body parts in dispute; worker employed by the respondent for 33 years performing arduous work; Held -award for the worker pursuant to section 4(b)(ii) of the 1987 Act; referral to AMS to assess permanent impairment.
Decision date: 26 October 2020 | Member: Senior Arbitrator Josephine Bamber
Claim for weekly payments of medical expenses for worker contracting a colitis infection in residential facility; further claim for permanent impairment for psychological injury as a result of colitis infection; competing factual and medical opinion on cause of infection; consideration of lengthy prior history of psychological problems and subsequent non-work related problems; AV v AW considered in respect of aggravation of pre-existing psychological conditions; Cannon v The Healthy Snack People & RSL (QLD); War Veteran’s Homes v Watkins considered in determining if primary psychological injury or secondary psychological injury; Jaffarie v Quality Castings applied in respect of the postponement of a determination of weekly payments until after MAC; Held – worker sustained colitis infection in the course of her employment; worker did not sustain a disease injury but did sustain an obsessive compulsive disorder as a result of work injury; obsessive compulsive disorder is a primary psychological injury only; referral to AMS to assess primary psychological injury; award of weekly payments for about 15 weeks due to colitis infection; determination of any further weekly payments postponed until after MAC or an appeal therefrom; order for medical expenses for treatment for colitis infection, irritable bowel syndrome and obsessive compulsive disorder.
Decision date: 26 October 2020 | Member: Arbitrator John Isaksen
Section 60(5) application for approval of series of injections; worker already being treated for over a year with no benefit; returned to work on full hours with alternative treatment; Held – treatment not effective and therefore not appropriate; alternative treatment successful; proposed treatment experimental and not accepted generally; Diab v NRMA Ltd applied; award respondent.
Decision date: 26 October 2020 | Member: Arbitrator John Wynyard
Claim for weekly benefits and section 60 expenses; respondent denies liability for injury under section 4 of the 1987 Act and on basis of reasonable action with respect to transfer, performance appraisal, discipline or provision of employment benefits under section 11A(1) of the 1987 Act; Held – finding that the worker suffered psychological injury arising out of or in the course of his employment with the respondent wholly or predominantly caused by actions of the respondent with respect to discipline, transfer, and the provision of employment benefits; finding that such actions not reasonable; finding that worker partially incapacitated for as a result of injury; finding that the worker had current work capacity to return to work in suitable employment; awards in favour of the worker for weekly benefits pursuant to sections 36 and 37 of the 1987 Act and for medical and related expenses pursuant to section 60.
Decision date: 27 October 2020 | Member: Arbitrator Brett Batchelor
Claim for lump sum compensation; worker employed as cashier; worker claimed long hours standing on hard floor aggravated, accelerated or exacerbated osteoarthritis in both hips; total hip replacements; respondent accepted employment made some contribution to aggravation but maintained not main contributing factor; AV v AW applied; Held - employment was the main contributing factor to the aggravation, acceleration or deterioration of degenerative osteoarthritis in the hips; award for the worker; matter to be referred to AMS for assessment of whole person impairment.
Decision date: 27 October 2020 | Member: Arbitrator Jill Toohey
Claim for compensation for psychological injury denied by the respondent on the basis of section 11A(1); identification of acts of employer with respect to discipline that were causative of worker’s psychological injury; Northern New South Wales Health Network v Heggie & Undag v Bupa Care Services Pty Ltd distinguished; Held – that the respondent’s actions in relation to discipline were the predominant cause of injury but those actions were not proven to be reasonable.
Decision date: 27 October 2020 | Member: Arbitrator Paul Sweeney
Reconsideration application; certificate of determination issued in error after worker discontinued claim; revocation sought pursuant to section 350(3) of the 1998 Act; Held – certificate of determination was a nullity, ergo there was nothing to reconsider; application dismissed for want of jurisdiction.
Decision date: 28 October 2020 | Member: Arbitrator John Wynyard
Claim for weekly payments under 1987 Act; earlier finding that worker sustained injury to his lumbar spine; remaining issue of whether worker had any current work capacity (CWC) during period 28 July 2017 and 5 October 2018, and if so the extent of any CWC; consideration of factors in section 32A(a) of the 1987 Act and Westpac Banking Corporation v Mani; Held – worker had CWC to earn the minimum Australian wage during the period; award for worker pursuant to section 37 of the 1987 Act during the period.
Decision date: 28 October 2020 | Member: Arbitrator Michael Perry
Claim for bariatric surgery; allegation of weight gain as a result of accepted lumbar injury in 2014; dispute as to whether this treatment is reasonably necessary as a result of the injury; Held – award for the worker pursuant to section 60 of the 1987 Act; principles in Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, Diab V NRMA Ltd applied.
Decision date: 28 October 2020 | Member: Senior Arbitrator Josephine Bamber
Medical Appeal decisions
Worker suffered injury to the lumbar spine and was assessed by the AMS at 14% WPI; the only issue on appeal was whether the worker should have been assessed at 2% for ADL as opposed to 1%; Held – on review of all the evidence the AP was not satisfied that the AMC contains a demonstrable error in assessing 1% for ADLs; Vannini v Worldwide Demolitions Pty Ltd applied; argument that AMS did not provide adequate reasons rejected; El Masri v Woolworth Ltd applied; respective qualified doctors both assessed the worker at 1% for ADL; Vitaz v Westform (NSW) Pty Ltd applied as to sufficiency of reasons where the alternative conclusion was not presented on the evidence; MAC confirmed.
Decision date: 22 October 2020 | Panel Members: Arbitrator John Harris, Dr John Brian Stephenson and Dr Brian Noll | Body system: Lumbar spine
Appeal from assessment of 11% whole person impairment (psychological); whether application of PIRS scales with respect to Social and recreational activities, Concentration persistence and pace, and Social functioning, was in error; whether lone attendances at a local hotel relevant to assessment of Social and recreational activities; whether deduction for pre-existing condition appropriate; medical assessment certificate set aside and replaced.
Decision date: 26 October 2020 | Panel Members: Arbitrator R J Perrignon, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological
Woolworths Group Limited (incorrectly sued as Philip Leong Stores Pty Ltd) v Gelsomina Lando  NSWWCCMA 156
Worker suffered a fall which resulted in disease injury to right hip, frank injuries to right wrist and ankle and consequential condition in left hip; parties agree that AMS made an error in calculation re right wrist; employer contended there should have been substantial section 323 deduction in respect of right hip; no dispute raised in relation right hip in section 78 notices or at arbitration hearing; Metwally v University of Wollongong considered; employer’s medical evidence supported disease; no evidence of pre-existing condition when worker commenced employment; Cole v Wenaline Pty Ltd, Cullen v Woodbrae Holdings Pty Ltd applied; Held - no error in declining to make deduction; MAP revoked.
Decision date: 26 October 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Roger Pillemer and Dr J Brian Stephenson| Body system: Right upper extremity, Right Lower Extremity, Left Lower Extremity
Referral required assessment of “right upper extremity including complex regional pain syndrome (CRPS)”; AMS did not make a diagnosis of CRPS and assessed appellant worker to have 11% whole person impairment from her injury due to ROM of right upper extremity; Panel found that the MAC contained a demonstrable error because the AMS should have considered findings he made of neurological features during examination and neurological symptoms appellant worker reported and the AMS should have considered a diagnosis of right ulnar neuritis and should have made an assessment of impairment relating to that; Held – Panel reassessed appellant worker and made a diagnosis of CRPS and assessed impairment on that basis; MAC revoked.
Decision date: 28 October 2020 | Panel Members: Arbitrator Marshal Douglas, Dr David Crocker and Dr Gregory McGroder| Body system: Right upper extremity
Appeal from assessment of 0% whole person impairment as a result of primary psychological injury; arbitrator had determined that worker suffered both primary and secondary psychological injury; approved medical specialist determined that symptoms of primary psychological injury were subsumed by symptoms of subsequent secondary psychological injury; whether approved medical specialist erred by assessing only impairment resulting from primary psychological injury, and failing to assess impairment resulting from both primary and secondary psychological injury, and deducting impairment resulting from secondary psychological injury; medical assessment certificate set aside.
Decision date: 28 October 2020 | Panel Members: Arbitrator R J Perrignon, Dr Julian Parmegiani and Dr Patrick Morris | Body system: Psychological