Legal Bulletin No. 72
Issued 27 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.
Court of Appeal decision
Construction of 1987 Act section 38A; whether payment at special rate pursuant to section 38A payable from time of injury or from time the worker satisfies the definition of “worker with highest needs”; consideration of the defined term ‘worker with highest needs”; Held – (1) appeal allowed; (2) set aside the orders of the Acting Deputy President of 10 September 2019; (3) in lieu thereof order that the appeal from the orders of the Arbitrator made on 26 February 2019 be dismissed; order that the respondent worker pay the appellant’s costs of the appeal.
Decision date: 26 November 2020 | Before: Macfarlan JA, Gleeson JA and White JA
Disease injury; lumbar spine; application of section 4(b)(ii) of the 1987 Act; whether injury occurred in the course of employment as a furniture removalist; employer accepted the worker suffered injury to the left hip and groin but disputed injury to the lumbar spine; focus of initial medical treatment was upon the hip and the left groin; Held – worker suffered injury to the lumbar spine in the course of employment as a result of the injurious event within the meaning of section 4(b)(ii) of the 1987 Act; respondent ordered to pay the worker’s medical and related treatment expenses reasonably necessary as a result of injury; application of section 60 of the 1987 Act; claim for weekly payments of compensation made pursuant to section 38 of the 1987 Act struck out as a nullity; no jurisdiction to determine capacity for work.
Decision date: 12 November 2020 | Member: Arbitrator Grahame Edwards
Claim for lump sum compensation; accepted injury to the right knee; continuing instability in knee leading to falls; accepted consequential condition of left shoulder following fall; agreed whole person impairment of left upper extremity (shoulder) 5%; whether worker also developed consequential conditions of the lumbar spine, left knee and cervical spine in falls; underlying degenerative condition; Held – finding that worker developed consequential conditions of the lumbar spine and left knee as a result of the original injury; worker had not discharged onus with respect to the cervical spine; accepted conditions, lumbar spine and left knee to be referred to an AMS for assessment noting agreement with respect to the left shoulder; award for the respondent with respect to the cervical spine.
Decision date: 13 November 2020 | Member: Arbitrator Jill Toohey
Worker made a claim for permanent impairment compensation; worker returned to the United Kingdom within a week of making her claim; Held – application by respondent to strike out the ARD declined; application by the worker for Arbitrator to determine permanent impairment also declined; claim remitted to the Registrar for referral to an AMS.
Decision date: 13 November 2020 | Member: Arbitrator Paul Sweeney
Basis of referral to AMS; cervical spine previously assessed by AMS; respondent seeks to rescind admission of injury to the cervical spine and in the alternative have reconsideration pursuant to section 350(3) of the 1998 Act; Held – respondent’s application rejected.
Decision date: 13 November 2020 | Member: Arbitrator Elizabeth Beilby
Injury, incapacity, medical expenses, notice of injury and notice of claim in dispute; worker’s credit in issue; Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Whisprun Pty Ltd v Dixon,Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited Albury Real Estate Pty Ltd v Rouseapplied; Held – worker sustained back injury pursuant to sections 4 and 9A of the 1987 Act; failure to give notice of injury and claim due to special circumstances; respondent to pay weekly compensation and medical expenses pursuant to sections 36, 37 and 60 of the 1987 Act.
Decision date: 16 November 2020 | Member: Senior Arbitrator Glenn Capel
Accepted injury to the right shoulder; whether the worker suffered consequential conditions to the left shoulder, cervical spine and lumbar spine; Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), Munce v Thomson Cool Rooms Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timbers Products Pty Ltd and NSW Police Force v Hahn applied; Held - worker did not suffer a consequential condition to her lumbar spine as a result of the accepted injury to her right shoulder in the course of her employment with the respondent; worker suffered consequential conditions to her left shoulder and cervical spine as a result of the accepted injury to her right shoulder in the course of her employment with the respondent; the accepted body systems be remitted to the Registrar for referral to an AMS for WPI assessment.
Decision date: 16 November 2020 | Member: Arbitrator Anthony Scarcella
Section 9AA of the 1987 Act; claim for industrial deafness; hearing aids; worker was employed by the first respondent as the “night driver” driving trucks between Albury and Thomastown in Melbourne via Wangaratta and Benalla (Victoria); cascading test; the State in which the worker “usually works” could not be identified; worker worked out of two depots to the extent neither could be said be the place where the worker was “usually based” for the purposes of his employment; first respondent’s principal place of business was in Victoria; Held – employment was not connected with the State of New South Wales; Martin v RJ Hibbens Pty Ltd; Fisher v Tony Innaimo Transport Pty Ltd and Ferguson v Workover Queensland considered.
Decision date: 16 November 2020 | Member: Arbitrator Grahame Edwards
An award for weekly compensation was issued in March 2018; the award was for the period 2001 to 2005 and was based, in part, on the agreement of the parties as to probable earnings but for injury; the worker filed a reconsideration application in August 2000 contesting the prior agreement and seeking to have the probable earnings but for injury calculated based on further evidence; Held – principles of finality of litigation and the delay were strong factors in rejecting the application; merits of the worker’s submission that the probable earnings were greater than the figure agreed were not clear in circumstances where the original agreement was based, in part, on his evidence which is now challenged; application to reconsider COD refused.
Decision date: 17 November 2020 | Member: Arbitrator John Harris
Medical Appeal decisions
Appellant worker suffered injury to the left forearm and associated scarring; AMS assessed appellant worker at 0% for scarring after referring to an absence of tattling and 7% WPI for the left upper extremity; the AMS did not find instability of the elbow when assessing the upper extremity; on appeal the appellant worker sought to tender an updated report from Dr Patrick commenting and disputing portions of the MAC including that the appellant worker suffered ongoing elbow instability: Held – report not admitted; Lukacevic v Coates Hire Operations Ltd and Petrovic v BC Serv No 14 Pty Ltd applied; appeal based on assessment of upper extremity dismissed; AMS referred to the test undertaken to determine instability and his opinion was consistent with another doctor; no error was established because the AMS did not accept Dr Patrick’s opinion: Merza v Registrar of the Workers Compensation Commission applied; presumption that those tests were properly undertaken; Jones v Registrar of the Workers Compensation Commission applied; reference to “tattling” in assessment of skin had no clear medical meaning and is otherwise not covered by Table 14.1 of the Guidelines; AMS otherwise failed to refer to criteria in assessing scarring; that part of the appeal established; on reassessment the Panel called for updated photographs and assessed scarring at 1% WPI; MAC revoked.
Decision date: 12 November 2020 | Panel Members: Arbitrator John Harris, Dr Mark Burns and Dr John Ashwell | Body system: Left upper extremity and scarring
Psychological injury; assessment of the extent of pre-existing impairment as a result of a motor accident; assessed for Medical Assessment Service five months before the work injury; inconsistencies in history; AMS considered all medical evidence and used history in previous assessment to assess under [10.11] of the Guidelines; Held – MAC confirmed.
Decision date: 16 November 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Michael Hong and Dr Julian Parmegiani| Body system: Psychological