Legal Bulletin No. 71
Issued 20 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.
Consideration of clause 28C of Schedule 8 of the 2016 Regulations.
Decision date: 10 November 2020 | Member: Deputy President Michael Snell
Claim for lump sum compensation for permanent impairment resulting from injury caused by the nature and conditions of the worker’s employment; accepted lumbar injury but disputed left knee injury; characterisation of nature and frequency of work duties; linguistic barriers; applicant’s treating specialist unable to identify causal connection to employment; Held – worker sustained injury to left knee; matter remitted to Registrar for referral to an AMS to assess degree of permanent impairment in relation to lumbar spine and left lower extremity (knee).
Decision date: 6 November 2020 | Member: Arbitrator Rachel Homan
Claim for weekly benefits and for treatment expenses including proposed right shoulder surgery; whether effects of accepted injury are ongoing or have been superseded by pre-existing factors; whether proposed surgery reasonably necessary; whether injury is causative of ongoing incapacity; Held – the effects of the accepted injury are ongoing; the proposed surgery is reasonably necessary as a result of the injury in issue; Diab v NRMA applied; the worker has suffered and continues to suffer partial incapacity for employment; respondent to pay the worker weekly benefits from 9 August 2019 to date and continuing pursuant to section 37 of the 1987 Act; respondent to pay the worker’s reasonably necessary medical and treatment expenses, including the costs of and incidental to the surgery proposed by treating surgeon Dr Summersell.
Decision date: 6 November 2020 | Member: Arbitrator Cameron Burge
Accepted injury to lumbar spine; respondent disputed need for surgery as reasonable treatment; all other treatments unsuccessful in the long term; Held – anterior lumbar Interbody fusion and associated expenses proposed by Dr Khong is reasonably necessary treatment as a result of the injury arising out of or in the course of the worker’s employment with the respondent on 30 July 2018.
Decision date: 6 November 2020 | Member: Arbitrator Deborah Moore
Claim for permanent impairment; where worker alleges and employer disputes that medical conditions of the neck and low back result from accepted right shoulder injury; where worker alleges that back condition caused by undertaking selected duty employment and travelling to work; Warwar v Speedy Couriers Pty Ltd and Powell v Qantas Ltd considered; Held – medical condition of back attributable to selected duty employment did not result from shoulder injury; conversely, medical condition of neck attributable to altered use of shoulders did result from injury; cervical spine and accepted shoulder injuries referred to AMS.
Decision date: 9 November 2020 | Member: Arbitrator Paul Sweeney
Application for referral to an AMS for the purpose of section 39 of the 1987 Act; past compensation paid for back injury including surgery; work injury damages claim dismissed in Supreme Court because history of fall in statement of claim did not match pre-filing statement; employer sought a finding in these proceedings as to the cause of the injury, arguing there was an estoppel; Held – referral made in accordance with claim in application; consequential condition in digestive system referred to AMS – remitted for referral to AMS.
Decision date: 10 November 2020 | Member: Arbitrator Catherine McDonald
Applicant was a bar tender who undertook some heavy activities associated with lifting; there was a gradual onset of pain which first arose on morning; discussion of the reliability of contemporaneous account in clinical records and the worker’s latter statement; The Nominal Defendant v Corbin applied; Held – worker suffered from a biceps subluxation which occurred due to the degenerative failure of the subscapularis tendon caused by heavy labour; this was both a personal injury in section 4(a) and an aggravation of a disease within section 4(b)(ii) of the 1987 Act; Zickar v MGH Plastic Industries Pty Ltd applied; whilst there was an absence of direct evidence of outside work activities; the histories recorded by doctors were considered in finding that work satisfied the test of substantial in section 9A or “the main” in section 4(b)(ii); surgery proposed by treating specialist satisfied test of “reasonably necessary”; Diab v NRMA applied; award in favour of worker for the cost of the proposed surgery.
Decision date: 11 November 2020 | Member: Arbitrator John Harris
Medical Appeal decisions
Challenge by worker to a number of PIRS categories and also a claim that the AMS erred; alleged also erred in failing to make an adjustment for the effects of treatment; Held – Appeal Panel accepted that the MAC demonstrated the thoroughness of the AMS’ assessment following, as he said, “a lengthy interview process” and he did not err in his assessment in any of the PIRS categories raised by the appellant worker; AMS also explained in considerable detail why he disagreed, when he did, with the opinions of the other IME’s; mere disagreement with the MAC is not a proper basis for appeal, and the appellant’s submissions, in the Appeal Panel’s view, reflect no more than that.
Decision date: 5 November 2020 | Panel Members: Arbitrator Deborah Moore, Professor Nicholas Glozier and Dr Patrick Morris |
Body system: Psychological
Worker suffered injury to the lumbar spine undergoing surgery which warranted DRE Category III and a further 3% for ongoing radiculopathy; AMS assessed 3% for ADLs, 0% for the skin and made a section 323 deduction of one-tenth; the only issue on appeal was whether there should be any section 323 deduction; Held – AMS failed to provide adequate reasons as no explanation how the asymptomatic condition contributed to injury; El Masri v Woolworth Ltd applied; demonstrable error established; MAC revoked as AMS failed to include the assessment of the lumbar spine in the medical assessment certificate; on reassessment the MAP accepted that a one-tenth deduction was appropriate as the pre-existing condition was an integral part of the disorder leading to the need for surgical treatment which included an L4/5 discectomy; MAC revoked in part by including the assessment of the lumbar spine.
Decision date: 5 November 2020 | Panel Members: Arbitrator John Harris, Dr Roger Pillemer and Dr Brian Noll |
Body system: Lumbar spine and Skin
Worker injured back and both knees in 2001; medical dispute and impairment dispute referred for assessment; AMS did not record findings with respect to all criteria in 4.27 of the Guidelines; Held – Peachey v Bildon Pty Ltd (Quality Siesta Resort Ltd & Quality Hotel) applied; that AMS’s failure to set out findings with respect to all criteria is consistent with the AMS having overlooked those criteria; MAC revoked
Decision date: 6 November 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Mark Burns and Dr Frank Machart |
Body system: Lumbar spine and right and left lower extremities