Legal Bulletin No. 75

Issued 18 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

Secretary, Department of Communities and Justice v Topic [2020] NSWSC 1824

Administrative law; jurisdictional error; section 327 of the 1998 Act; decision of Registrar to refuse to refer appeal; whether Registrar erred by determining substantive appeal rather than applying statutory test; whether jurisdictional error.

Decision date: 15 December 2020 | Before: Adamson J

Arbitral decisions

Becus v Woolworths Group Pty Ltd [2020] NSWWCC 409

Claim for section 60 medical expenses; injury to lumbar spine; no dispute that the applicant had exhausted all non-operative management; respondent agreed to pay for nucleoplasty; applicant wanted spinal fusion at L4/5 and L5/S1 recommended by his doctors; whether spinal fusion reasonably necessary; Held - finding that spinal fusion reasonably necessary.

Decision date: 7 December 2020 | Member: Arbitrator Jill Toohey.

Hassan Haddad v Ali Baba Lebanese Cuisine Pty Ltd [2020] NSWCC 410

Claim for weekly benefits; previous determination by Commission that applicant sustained injury to lumbar spine and cervical spine as a result of nature and conditions of employment; AMS assessed 12% WPI; limited contemporaneous evidence relating to incapacity; Held – applicant incapacitated for work as a result of injury; current work capacity during first entitlement period and no current work capacity thereafter; award for the applicant for weekly compensation.

Decision date: 11 December 2020 | Member: Arbitrator Rachael Homan.

Edward Rylewski v Australian Design & Construction Pty Ltd [2020] NSWCC 411

Claim for lump sum compensation as a result of frank injury; no dispute that the applicant suffered injury to his thoracic and lumbar spine, left lower extremity (ankle) and scarring, and was entitled to have these body systems referred to an AMS for assessment; applicant also claimed injury to left upper extremity (shoulder) and right lower extremity, or consequential condition in the right lower extremity, disputed by the respondent; no assessment of WPI in evidence in respect of these body systems; Held - finding that the applicant had not made claims for injury to, or consequential condition in, the disputed body systems; finding that, as the opinion of the IME relied upon by the applicant in support of his claim for lump sum impairment did not include assessments of permanent impairment of the body systems disputed by the respondent, there was no dispute before the Commission in respect of injury to, or consequential condition in, those body systems; therefore the Commission was not required to make findings in respect of injury to, or consequential condition in, the body systems disputed by the respondent; further, in the event that injury was found in respect of the disputed body systems of left upper extremity (shoulder) and right lower extremity, those body systems should not be referred to AMS for assessment as there was no assessment of permanent impairment to these body systems in evidence; Abi-Arrange v Baptist Community Services NSW and ACT, Woolworths Ltd v Stafford applied; matter remitted to the Registrar for referral to AMS for assessment of WPI as a result of injury to thoracic and lumbar spine, and left lower extremity, plus scarring resulting from such injuries.

Decision date: 11 December 2020 | Member: Arbitrator Brett Batchelor

Monty T'Malii v Bagtrans Operations (Depot) Pty Ltd [2020] NSWCC 412

Worker suffered an injury to his right wrist and cervical spine at work and remained on selected duties until he injured his right knee in a motor accident; alleged that the motor accident was caused by paraesthesia in his right arm, of which he had complained consistently; finding that right knee injury was a consequence of the work injury; Held - no dispute that surgery was reasonably necessary medical treatment if that finding made; award for the applicant.

Decision date: 14 December 2020 | Member: Arbitrator Catherine McDonald

Myung Soon Kim v Menzies Property Services Pty Ltd [2020] NSWWCC 413

Psychological Injury; claim for permanent impairment lump sum compensation under section 66 of the 1987 Act; applicant was employed as a cleaner by the respondent; applicant alleged she sustained a psychological injury due to numerous workplace incidents including a substance being placed in her sock; whether the applicant sustained an injury pursuant to sub sections 4 and 9A of the 1987 Act; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline and transfer; Attorney General v K applied; employer raised section 11(A)(1) defence; Heggie principles discussed when considering section 11A(1) defence; Held – applicant sustained a psychological injury due to numerous workplace incidents including a substance being placed in her sock; injury not wholly or predominantly caused by reasonable action of employer; held injury is deemed to have occurred on 11 August 2017; matter referred to AMS.

Decision date: 15 December 2020 | Member: Arbitrator Karen Garner

Con Xenikas v ARB Corporation Limited [2020] NSWWCC 414

Jurisdiction of the Commission to refer worker for assessment of permanent impairment; whether the degree of permanent impairment is more than 30%; application of section 32A of the 1987 Act; whether consent orders issued by the Commission were an assessment of the degree of permanent impairment; whether an assessment and MAC under Pt 7 of the 1998 Act were a determination under Pt 4 of the 1987 Act; Held - consent orders were not a determination as to the degree of permanent impairment as a result of injury under Pt 4 of the 1987 Act; worker not estopped by the provisions of section 322A(1) of the 1998 Act as referral was for the purpose of assessment as to whether degree of permanent impairment met the definition of “worker with highest needs” under section 32A of the 1987 Act; section 105, section 294, and section 322A of the 1998 Act considered; Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Health & Anor; Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney; Haroun v Rail Corporation of New South Wales and Jaffarie v Quality Castings Pty Ltd applied; matter remitted to the Registrar for referral to an AMS.

Decision date: 15 December 2020 | Member: Arbitrator Grahame Edwards

Medical Appeal decisions

Garry Richard Cook v Empire Freight Management Pty Ltd [2020] NSWCCMA 176

Appeal from assessment of 13% whole person impairment of right and left ankles; whether assessment based on cartilage loss at ankles yielded a greater whole person impairment than range of motion; whether approved medical specialist erred in assessing on the basis of range of motion; Held - MAC revoked.

Decision date: 10 December 2020 | Panel Members: Arbitrator R J Perrignon,  Dr Drew Dixon and Dr Tommasino Mastroianni |
Body system: Right and left lower extremities

Dooleys Lidcombe Catholic Club Limited v Peter Lytwyn [2020] NSWWCCMA 177

Respondent suffered a psychiatric injury from work and was assessed by the AMS at 19% WPI; the appellant contended that the AMS had erred in assessing three PIRS categories; the Panel noted that the grounds of appeal did not properly articulate how there was demonstrable error or the application of incorrect criteria; mere difference of opinion did not satisfy the concept of error; Parker v Select Civil Pty Ltd applied; the AMS had made factual findings based on his assessment to which weight had to be given; Ferguson v State of New South Wales applied; findings made by the AMS of Class 3 for both social and recreational activities and for concentration, persistence and pace were clearly open and not contradicted by a reference that someone was planning a cruise holiday for the respondent or that the respondent cared for a guide dog; the assessment for Class 4 for employability was not a demonstrable error simply because the respondent’s qualified doctor found class 3; Merza v Registrar of the Workers Compensation Commission applied; when the reasons were read as a whole, the AMS made this finding based on the diagnosis and his acceptance of the respondent’s complaints of symptoms; Held - Appeal dismissed.

Decision date: 10 December 2020 | Panel Members: Arbitrator John Harris, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological

Ellen Greentree v Brian Charles Cannon t/as Chemist Outlet East Gosford 178

The appellant claimed the AMS erred in failing to conduct a proper assessment of impairment under the PIRS for travel and social and recreational activities and failed to adjust the impairment rating for the effects of treatment; Held - the evidence supported the assessments made by the AMS under the PIRS scale; there was no evidence that the appellant’s condition had resulted in any “substantial or total elimination” of the appellant’s level of permanent impairment such that no adjustment for the effects of treatment was appropriate; MAC confirmed.

Decision date: 11 December 2020 | Panel Members: Arbitrator Deborah Moore, Dr Julian Parmegiani and Dr Douglas Andrews |
Body system: Psychological