Legal Bulletin No. 70
Issued 13 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.
Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr; Raulston v Toll Pty Ltd discussed and applied; failure to cross examine; rejection of evidence which is not the subject of cross-examination; Ali v Nationwide News Pty Ltd applied; application of common knowledge and experience; Nicolia v Commissioner for Railways applied.
Decision date: 3 November 2020 | Member: Deputy President Elizabeth Wood
Claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by multiple incidents in the workplace; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal or discipline; Canterbury Bankstown Council v Gazi and Hamad v Q Catering Ltd considered in relation to whole or predominant cause; Attorney General’s Department v K considered in relation to perception of events in hostile work environment; reference to Webb v State of NSW on issue of discipline; Held – psychological injury caused by multiple stressful events in workplace; section 11A defence not maintained; discipline as provided for in section 11A does not extend to the facts of this dispute; award of weekly payments of compensation for periods of no current work capacity and then partial incapacity, and payment of reasonable medical expenses.
Decision date: 29 October 2020 | Member: Arbitrator John Isaksen
Permanent impairment claims for deterioration of body parts for which compensation previously paid; respondent denies injury; whether worker suffered injury to claimed body parts, and if so, whether the injury was in the nature of a disease process; whether, once injury has been established, the question of determining deterioration is a matter exclusively for an Approved Medical Specialist or for the Commission constituted by an Arbitrator; estoppel, whether respondent estopped from denying injury to claimed body parts, having previously paid permanent impairment compensation in respect of them; Held – worker suffered frank injury to his neck in July 1999, and to his neck and both arms as a result of the nature and conditions of his employment; Kooragang Cement Pty Ltd v Bates considered; Byrom v Inghams Enterprises Pty Limited and Studley v Spectrum Employment Services Cooperative Pty Ltd distinguished; the Commission constituted by an Arbitrator has power to assess permanent impairment, however, this is not an appropriate case to do so given the nature of the injuries; Abou-Haider v Consolidated Wire Pty Ltd considered; the conduct of the respondent is not sufficient to give rise to estoppel; Port of Melbourne Authority v Anshun Pty Ltd distinguished; Habib v Radio 2ue Sydney Pty Ltd considered; matter remitted to Registrar for referral to an Approved Medical Specialist.
Decision date: 29 October 2020 | Member: Arbitrator Cameron Burge
Claim for weekly benefits and for medical expenses; lumbar spine injury admitted; whether employment main contributing factor to development of bilateral avascular necrosis in hips requiring bilateral hip replacement; whether operations were reasonably necessary. whether worker was incapacitated for work as a result of a workplace injury, and if so to what extent. Held – (i) nature and conditions of worker’s employment were the main contributing factor to the development of bilateral avascular necrosis of his hips: AV v AW applied; Kooragang Cement Pty Ltd v Bates followed; (ii) the development of the avascular necrosis gave rise to the need for the bilateral hip replacement operations, which were reasonably necessary as a result of the workplace injury, per section 60 of the 1987 Act. (iii) the development of the avascular necrosis gave rise to the need for the bilateral hip replacement operations, which were reasonably necessary as a result of the workplace injury, per section 60 of the 1987 Act; (iv) as a result of the workplace injury, the worker was totally incapacitated for employment for the period claimed. (v) respondent ordered to pay worker’s reasonably necessary medical and treatment expenses relating to the bilateral avascular necrosis of the hips. (vi) respondent ordered to pay the applicant weekly compensation for the period claimed.
Decision date: 29 October 2020 | Member: Arbitrator Cameron Burge
Worker suffered injured to the lumbar spine in 2006 and 2009; in December 2017 weekly compensation payments ceased due to the operation of section 39 of the 1987 Act; worker has not had the one further assessment but was assessed by the Panel as not having attained maximum medical improvement; sole issue was whether the worker was entitled to weekly compensation prior to the issuing of the medical assessment certificate due to clause 28C of Sch 8 of the 2016 Regulations; Held – clause includes the requirement for an assessment where section 39 does not; that assessment is not one of permanency but, to adopt the words of the respondent, “impermanent”; clause 28C provides a temporal element through the additional concept that the medical assessor must decline to make an assessment because “maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”; the requirement that the AMS must make the assessment provides the “restoring or re-enlivening of an entitlement”; worker was entitled to weekly compensation only form the date of the assessment.
Decision date: 2 November 2020 | Member: Arbitrator John Harris
Claim for section 60 medical expenses; Dr Peter Khong, treating neurosurgeon, has focused on the applicant accepted cervical injury; Dr Khong has recommended surgery by way of a C2/3 decompression and a left C5/6 foraminotomy; Consideration of whether surgery was reasonably necessary; Held - Surgery regarded as reasonably necessary.
Decision date: 2 November 2020 | Member: Arbitrator Elizabeth Beilby
Worker assessed under section 38 of the 1987 Act as having current work capacity; payments ceased in 2013 as worker did not fulfil section 38(3); assessed as worker with high needs in 2017; in 2019 worker sought reinstatement of weekly compensation; insurer backdated payments to date of MAC; worker sought reinstatement to date payments ceased in 2013 relying on Hochbaum v RSM Services Pty Ltd and Melides v Meat Carter Pty Ltd; entitlement turned on words of section 38 and assessment by insurer; Held –award for the respondent.
Decision date: 2 November 2020 | Member: Arbitrator Catherine McDonald
Claim for weekly payments and medical expenses for injury to cervical spine; respondent disputes injury in course of employment and a disease injury pursuant to section 4(b)(ii) of the 1987 Act; Federal Broom Co P/L v Semlitch and AV v AW considered; Held – worker established a causal connection between her employment and the action of sharply turning her head which caused injury; lay and medical evidence establishes that the worker’s employment was the main contributing factor to the aggravation of disease to the cervical spine; evidence also establishes injury pursuant to section 4(a) of the 1987 Act; awards for weekly payments for no current work capacity and for medical treatment for injury to cervical spine.
Decision date: 4 November 2020 | Member: Arbitrator John Isaksen
Disease injury; section 4(b)(ii) of the 1987 Act; bilateral knee osteoarthritis; claim for weekly payments of compensation; closed period; pursuant to sections 36 and 37 and medical expenses pursuant to section 60; bilateral total knee replacement; worker long haul fuel/liquid container driver; repetitive climbing and squatting in the course of employment over 15 year period; Held – worker suffered a disease injury within the meaning of section 4(b)(ii) of 1987 and the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease; bilateral total knee replacement reasonably necessary as a result of injury; Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NASW TAFE Commission, Makita (Australia) Pty Ltd v Sprowles, Paric v John Holland (Constructions) Pty Ltd; Murray v Shillingsworth; Diab v NRMA; discussed and applied; Inman v NSW Police Force applied.
Decision date: 4 November 2020 | Member: Arbitrator Grahame Edwards
Claim for lump sum compensation; accepted lumbar injury and consequential condition affecting digestive system; allegation of cervical spine injury and/or consequential condition disputed; delayed onset of symptoms; mechanism of injury unexplained; causal connection unexplained in medicolegal reports; Held – award for the respondent in respect of cervical spine injury and consequential condition; matter remitted to Registrar for referral to an AMS to assess degree of permanent impairment in relation to lumbar spine and upper and lower gastrointestinal tracts.
Decision date: 4 November 2020 | Member: Arbitrator Rachel Homan
Medical Appeal decisions
Appeal from assessment of 5% whole person impairment; lumbar spine injury as a result of nature and conditions of employment from 2002; deduction for pre-existing condition of excess weight; whether excess weight condition existed prior to 2002; Held – assessment certificate set aside and replaced.
Decision date: 29 October 2020 | Panel Members: Arbitrator R J Perrignon, Dr James Bodel and Dr Drew Dixon | Body system: Lumbar spine
Worker was a senior child protection case worker, who sustained an accepted psychological injury; AMS examined the worker via video link and assessed 8% WPI and made a deduction of one-tenth for a pre-existing condition resulting in an assessment of 7% WPI; worker submitted that she was prejudiced by being examined in her home and argued she was pre-judged as coming from the Balkans; worker submitted that the history reported was incorrect referring to twenty instances; Appeal Panel not satisfied that the worker was pre-judged or that there was any prejudice by being examined in her home by video link; parts of the MAC misread; many of the matters complained of were irrelevant to the PIRS rating; appellant failed to identify how those errors impacted on the assessment of WPI and, in particular, how the alleged inaccuracies resulted in an error in the various PIRS categories; Appeal Panel concluded that regardless of whether the AMS made slight errors in the recorded history, such errors were inconsequential and were not material to the assessment; such errors would not factor into the assessment of WPI and ratings in the PIRS categories; the Appeal Panel agreed with the PIRS ratings made by the AMS and his assessment of WPI; Held - MAC confirmed.
Decision date: 2 November 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Douglas Andrews and Dr Patrick Morris | Body system: Psychological
Psychological injury; worker filed fresh evidence challenging AMS record; Lukocevic v Coates Hire Operations Pty Ltd applied; fresh evidence rejected; appeal challenged three PIRS categories; Held - appeal allowed as to one category: WPI increased from 7% to 8%.
Decision date: 4 November 2020 | Panel Members: Arbitrator John Wynyard, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological
Right upper extremity and scarring injury; assessment of right upper extremity of 46% whole person impairment not appealed; appellant worker alleged error in assessment in respect of scarring; assessment of 7% whole person impairment; appellant worker was re-assessed by an AMS member of the Panel; re-examination assessed same impairment level as AMS; Held - MAC confirmed.
Decision date: 4 November 2020 | Panel Members: Arbitrator Jane Peacock, Dr Allan Meares and Dr John Giles | Body system: Scarring
Assessment of permanent impairment resulting from psychiatric injury; worker appealed on the basis that AMS obtained a history that was inconsistent with worker’s signed statement and consequently based the assessment of the worker’s permanent impairment on an incorrect history; the Appeal Panel found that AMS had regard to the worker’s statement as well as the worker’s responses to questions during examination when obtaining history; Held – Appeal Panel found that AMS exercised clinical judgment in obtaining the history he did and that there was no error with the manner in which the AMS obtained the history relevant to the worker’s injury or in his assessment of the worker’s impairment by reference to that history; MAC confirmed.
Decision date: 4 November 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Doug Andrews and Dr Julian Parmegiani | Body system: Psychological
Allegation of demonstrable error and/or application of inappropriate criteria in assessment of areas of function “social and recreational activities” and “travel” in respect of psychological injury; the appellant worker submitted inappropriate weight given to one aspect of social interaction (golf) in respect of both areas of function when, it was submitted, the reality was considerably more serious; Held – the submissions included allegations of fact which were not in evidence before the AMS and which did not form part of the information conveyed to the AMS on examination; no application was made to adduce fresh evidence; assessment of the respective areas of function was a matter of clinical judgement and the assessment by the AMS was open on the evidence; no error was demonstrated or any application of incorrect criteria; reference to Ferguson v State of New South Wales; MAC confirmed.
Decision date: 4 November 2020 | Panel Members: Arbitrator William Dalley, Dr Julian Parmegiani and Dr Doug Andrews | Body system: Psychological