Legal Bulletin No. 73

Issued 4 December 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.

Arbitral decisions

Hillier v State Transit Authority of NSW [2020] NSWWCC 395

Claim for weekly payments of compensation for incapacity said to result from a psychiatric injury; issues were whether worker suffered an injury and if so whether her injury was wholly or predominantly caused by reasonable action the respondent took or proposed to take with respect to transfer of the worker; Held – worker suffered an injury due to stress from having to be on call 24/7 from February 2019; respondent did not establish that the worker’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer of the worker; award for the worker.

Decision date: 19 November 2020 | Member: Arbitrator Marshal Douglas

Johanson v Secretary, Department of Education [2020] NSWWCC 396

Claim for weekly compensation limited to 52 weeks due to psychological injury occurring after retirement age; dispute confined to capacity for employment in suitable duties; Held – award for the worker from 23 August 2019 to 18 November 2019 and 24 February 2020 until 17 May 2020; award for the respondent 19 November 2019 to 23 February 2020 and 18 May 2020 to 20 August 2020; section 32A of 1987 Act discussed.

Decision date: 19 November 2020 | Member: Senior Arbitrator Josephine Bamber

Mansfield v Secretary, Department of Education [2020] NSWWCC 397

Claim for weekly benefits in respect of previously accepted psychological injury; worker certified fit for pre-injury duties; following a return to work worker required to complete a Teacher Improvement Program and subject to other events causing further periods of incapacity; no subsequent injury claimed; whether incapacity results from accepted injury; Held – Calman v Commissioner of Police applied; accepted psychological injury continued to have effect; incapacity resulted from accepted injury despite other causes; award for weekly benefits.

Decision date: 20 November 2020 | Member: Arbitrator Rachel Homan

Wall Street Pty Ltd v Workers Compensation Nominal Insurer (iCare) & others [2020] NSWWCC 398

Employer disputes a notice served by Workers Compensation Nominal Insurer (icare) seeking payment of workers compensation benefits that icare has made to the worker; worker sustained injury to lower back while working on a yacht in Sydney Harbour; employer holds workers compensation policy in Victoria; whether the worker’s employment was connected to the state of New South Wales as required by section 9AA of the 1987 Act; consideration and application of the “usually works” and “usually based” test; consideration and application of principles set out in Martin v R J Hibbens Pty Ltd; Held – worker satisfies “usually works” and “usually based” tests; order that employer is to pay icare the amount sought in the notice for recovery of workers compensation payments

Decision date: 20 November 2020 | Member: Arbitrator John Isaksen

Duricek v Nestle Australia Limited [2020] NSWWCC 399

Disease injury; section 4(b)(ii) of the 1987 Act; respondent accepted worker suffered injury to the left shoulder as a result of three injurious events or incidents in the course of employment but disputed injury to the cervical spine; claim for proposed cervical spine surgery; not disputed by respondent as appropriate medical treatment but disputed reasonably necessary as a result of injury; Held – worker suffered disease injury; proposed cervical spine surgery reasonably necessary as a result of injury;  Federal Broom Co Pty Ltd v Semlitch, Murray v Shillingsworth, Kelly v Western Institute NSW TAFE Commission, Murphy v Allity Management Services Pty Ltd, Taxis Combined Service (Victoria) Pty Ltd v Schokman, and Diab v NRMA Ltd applied.

Decision date: 23 November 2020 | Member: Arbitrator Grahame Edwards

Fit Concept Pty Limited v Workers Compensation Nominal Insurer (iCare) & others [2020] NSWWCC 400

Application under section 145(4) of the 1987 Act that the Commission determine that the applicant is not liable to reimburse the Nominal Insurer for compensation paid; worker worked for three companies including the applicant as a merchandiser; worker did not report the injury until almost six months later and after referral to a surgeon; no detailed incident report until eleven months after the injury; Nguyen v Cosmopolitan Homes applied; Held – no actual persuasion that the injury occurred whilst working for the applicant; applicant not required to reimburse the Nominal Insurer.

Decision date: 23 November 2020 | Member: Arbitrator Catherine McDonald

Kiley v Kingslee Pty Ltd [2020] NSWWCC 401

Claim by worker for weekly compensation and medical expenses; where worker did not seek medical treatment following injury; where workers condition deteriorated 18 months after injury; where respondent attacked reliability of worker; consideration of absence of medical treatment to proof of causal nexus; Held – that worker’s evidence was reliable; causal nexus between injury and incapacity accepted; award for worker for weekly compensation and cost of medical treatment.

Decision date: 23 November 2020 | Member: Arbitrator Paul Sweeney

Withers v Shellharbour City Council [2020] NSWWCC 402

Worker was a below the knee amputee arising from a prior motor vehicle accident who then suffered a work injury which aggravated the pain and swelling in the stump; six months prior to the work injury the worker had consulted the treating surgeon and investigated a surgical procedure known as osseointegration which involved implanting a titanium rod into the bone of the stump; worker suffered the work injury on 5 July 2019; by the end of July, the general practitioner recorded that there was no pain, and the worker was certified fit for pre-injury duties; worker returned to work in heavy duties for over two months when his stump condition deteriorated; worker underwent the osseointegration procedure in May 2020; medical opinion by the treating surgeon was that the work injury had rendered the surgical procedure necessary; Held – medical evidence established that the underlying condition would deteriorate over time; opinion of the treating surgeon lacked a fair climate because he recorded that the worker suffered from severe pain since the injury and otherwise did not discuss and explain to what extent the stump deteriorated due to injury; Hancock v East Coast Timber Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd applied; weight given to contemporaneous records over subsequent versions as to the nature and severity of the worker’s condition following the injury; The Nominal Defendant v Corbin applied; worker did not satisfy the onus of proof that the osseointegration procedure was as a result of injury within the meaning of section 60 of the 1987 Act; award in favour of respondent for the cost of the surgery and the claim for weekly compensation.

Decision date: 23 November 2020 | Member: Arbitrator John Harris

Kettley v Lindsay Brothers Management Pty Ltd T/As Lindsay Transport [2020] NSWWCC 403

Alleged bilateral lower limb amputation; end state renal failure; endocrine; reproductive and urinary system failures; worker had pre-existing diabetes type II and peripheral vascular disease; developed blister in right lower extremity due to steel cap boots; second incident occurred when worker slipped alighting from truck dislocating 2nd and 3rd toes; consequential blister in left foot; sequence of infection was gangrene then osteomyelitis; conflict in medical evidence and chronology of events discussed; Held – weekly payments award for worker and section 66 payments remitted to Registrar.

Decision date: 24 November 2020 | Member: Arbitrator Philip Young

Radovanovic v Corporate Interfirm Pty Ltd [2020] NSWWCC 404

Application pursuant to section 325(3) of the 1998 Act to correct an alleged obvious error in the Medical Assessment Certificate of Approved Medical Specialist Dr Truskett dated 4 February 2020; Held – application declined as there is no obvious error on the face of the document.

Decision date: 24 November 2020 | Member: Registrar’s delegate Josephine Bamber

Hudson v Toll Global Express [2020] NSWWCC 405

Claim for weekly benefits, medical and related treatment expenses and permanent impairment compensation; the respondent accepts the worker suffered an injury to his low back on 16 August 2019 but denies the worker suffered injury to his cervical spine as a result of the incident occurring on 16 August 2019; the respondent further denies liability for alleged injury to his low back on the basis he has recovered from the effect of the incident on 16 August 2019. Held – the injury the worker sustained to his low back on 16 August 2019 has not resolved;  the worker did not sustain injury to his neck as a result of the incident on 16 August 2019; the worker has partial capacity to work as a result of the injury he sustained to his low back on 16 August 2019; the worker requires medical and related treatment as a consequence of the injury he sustained to his low back on 16 August 2019.  the worker has no entitlement for remittal of his permanent impairment compensation claim as his claim for such compensation does not reach the threshold prescribed by section 66(1) of the 1987 Act; respondent to pay weekly compensation and medical expenses resulting from injury the worker sustained to his low back under sections 37(3)(a), 59 and 60 of the 1987 Act.

Decision date: 25 November 2020 | Member: Arbitrator Jacqueline Snell

Schliebs v Inghams Enterprises Pty Limited [2020] NSWWCC 406

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; whether respondent estopped from denying injury to claimed body parts, having previously paid permanent impairment compensation in respect of them; Held – (i) 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 referred to; Byrom v Inghams Enterprises Pty Limited and Spectrum Employment Services considered and distinguished; (ii) 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 discussed; (iii) the conduct of the respondent is not sufficient to give rise to an estoppel: Port of Melbourne Authority v Anshun Pty Ltd distinguished, Habib v Radio 2ue Sydney Pty Ltd noted; (iv) matter remitted to Registrar for referral to an Approved Medical Specialist.

Decision date: 25 November 2020 | Member: Arbitrator Cameron Burge

Medical Appeal decisions

Hetherington v Aldi Foods Pty Limited [2020] NSWWCCMA 170

Claim for permanent impairment compensation for lumbar spine, right lower extremity and scarring; no appeal with respect to right lower extremity; difference between DRE Lumbar Category II and III and requirements in Guidelines for assessment of radiculopathy; principles of assessment under the TEMSKI; Held – MAP confirmed.

Decision date: 24 November 2020 | Panel Members: Arbitrator Catherine McDonald, Dr Drew Dixon and Dr Greg McGroder|
Body system: Lumbar spine and scarring

Abdi v Host International Pty Limited [2020] NSWWCCMA 171

Psychological Injury; appellant worker alleged error assessment by the AMS under the categories of Self-care and Personal Hygiene, and Social and Recreational Activities in the Permanent Impairment Rating Scale; AMS did not make a demonstrable error nor did he assess on the basis of incorrect criteria; Held – MAC confirmed.

Decision date: 25 November 2020 | Panel Members: Arbitrator Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong|
Body system: Psychological

Kuskey v State of NSW (Illawarra Shoalhaven Local Health District) [2020] NSWWCCMA 172

Allegation of demonstrable error and application of incorrect criteria in respect of PIRS areas of function; self-care and personal hygiene, social functioning and concentration persistence and pace and in respect of Guidelines with respect to effects of treatment; allegation that evidence did not support assessment of Class 2, mild impairment, but required Class 3; further allegation that AMS should not have deducted 2% WPI for the effects of treatment; Held – the evidence demonstrated improvement in the worker’s condition since examination by the respective independent medical experts and assessment as Class 2 was open and appropriate on the evidence; the appellant worker had failed to understand the application of the Guidelines with respect to effects of treatment; the AMS had in fact added 2% WPI pursuant to paragraph 1.32 of the Guidelines. Held – MAC confirmed.

Decision date: 25 November 2020 | Panel Members: Arbitrator William Dalley, Dr Julian Parmegiani and Dr Douglas Andrews|
Body system: Psychological