Legal Bulletin No. 74
Issued 11 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.
Supreme Court decision
Administrative Law; error of law on the face of the record; whether third defendant failed to correctly apply guidelines; whether third defendant failed to properly explain path of reasoning; whether fourth defendant erred in finding no error in third defendant’s application of guidelines.
Decision date: 3 December 2020 | Before: Adamson J
Failure to admit late evidence; whether error in the discretionary exercise; Micallef v ICI Australia Operations Pty Ltd, Hamod v State of New South Wales applied; alleged errors of fact; Whiteley Muir & Zwanenberg Ltd v Kerr applied.
Decision date: 7 December 2020 | Before: Deputy President Elizabeth Wood
Worker appealed pursuant to Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; Held - The appeal cannot be brought as the requirements of section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied.
Decision date: 8 December 2020 | Before: Deputy President Michael Snell
Claim for weekly benefits and medical expenses as a result of psychological injury arising out of or in the course of the applicant’s employment as a manager with the respondent; injury conceded by the respondent, but incapacity in issue; Held - finding that applicant totally incapacitated for the period claimed; award in favour of the applicant to date and continuing pursuant to section 37 of the 1987 Act; award for section 60 expenses.
Decision date: 3 December 2020 | Member: Brett Batchelor.
Claim for lump sum compensation for accepted left shoulder injury, scarring and consequential hypertension; consequential hypertension condition disputed; whether proper factual foundation for acceptance of applicant’s medicolegal opinion; multiple causes; Held – work injury materially contributed to hypertension condition; matter remitted to the Registrar for referral to an AMS for assessment of all claimed body parts/systems.
Decision date: 3 December 2020 | Member: Arbitrator Rachael Homan
Medical Appeal decisions
Worker was a security guard who sustained a brain injury (central and peripheral nervous system) on 20 December 2008; AMS examined the worker and assessed 7% WPI; worker submitted that AMS’ conclusions with respect to the Clinical Dementia Rating (CDR); Table 13.5 of the AMA 5 were at odds with the available evidence and his own findings at the time of the examination and this constituted a demonstrable error on the face of the certificate; Held - Panel held that AMS erred in his assessment of CDR given his findings and available evidence and assessed 22% WPI under Table 13-5 but reduced the assessment by two thirds for subsequent unidentified causes. Panel made an assessment under Table 13-8 of 7% WPI. MAP revoked and new certificate issued with assessment of 14% WPI.
Decision date: 3 December 2020 | Panel Members: Arbitrator Caroline Rimmer, Dr Robin Fitzsimons and Dr Michael Davies |
Body system: Central peripheral nervous system
Hearing loss appeal against use of low tones frequencies in calculation of occupational binaural impairment and failure (conceded by worker) to allow for non-industrial noise in one ear: worker exposed to extremely loud noise over a 60 year duration: re-examination held: MAC revoked: WPI reduced from 39% to 32% WPI.
Decision date: 3 December 2020 | Panel Members: Arbitrator John Wynyard, Dr Brian Williams and Dr Joseph Scoppa | Body system: hearing loss
The appellant claimed the AMS erred in assessing the respondent as a Class 2 in the Psychiatric Impairment Rating Scale (PIRS) category of travel; the appellant had closely examined financial and other records which seemed to indicate on the face of it that the worker’s travel activities were more extensive than the AMS had noted such that an error may have occurred; the Panel determined that a re-examination was warranted to further explore these issues with the worker; In short, the worker allowed family and friends to shop for her and to use her vehicle; Held - the Panel accepted that the worker has given credible explanations as regards her general travel activities; significantly, the overall evidence that the respondent does not go to unfamiliar places on her own, and is generally confined to approximately 20 minutes of travel, her need for a companion in unfamiliar environments reinforced the Panel’s view that a Class 2 assessment is appropriate; MAC confirmed.
Decision date: 3 December 2020 | Panel Members: Arbitrator Deborah Moore, Dr Professor Nicholas Glozier and Dr Michael Hong |
Body system: Psychological