Recent workers compensation decisions (WCC, SC, CA) Recent Worke… · RECENT WORKERS COMPENSATION DECISIONS (WCC, SC, CA) | 10 May 2019 A MAC must set out the medical condition which

RECENT WORKERS COMPENSATION DECISIONS (WCC, SC, CA) | 10 May 2019

Manager ILARS

2019 NEWCASTLE SEMINAR

Recent workers compensation decisions (WCC, SC, CA)

Michael Vella

10 May 2019


▸ An AMS or MAP can determine causation.

▸ When doing so there is a requirement to comply with the legislation.

Nicol v Macquarie University [2018] NSWSC 530

Decision date: 27 April 2018

Decision maker: Harrison AsJ


▸Depending on the material before the AMS there may be a duty to

address the material.

Wentworth Community Housing Limited v Brennan [2019] NSWSC 152

Wentworth Community Housing Limited v Brennan [2019] NSWSC 152

Decision date: 27 February 2019

Decision maker: Harrison AsJ


▸ More importantly, the language of causal connection is squarely

within the definition of “medical dispute” in s319 of the 1998 Act.

Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] NSWSC 1588.

Decision date: 23 October 2018

Decision maker: Hoeben CJ at Common Law


▸ Confirms, that an AMS or MAP can make findings of fact necessary for the performance of

their function.

▸ An AMS can make finding as to “aggregation” in relation to the degree of permanent

impairment. [See para 66]

▸ It is a demonstrable error if the AMS does not confine themselves to the matters referred.

▸ It is permissible having found the referred error for a MAP to correct all errors they discover

in a MAC which leads the MAP to a different conclusion to the AMS.

▸ If issues are dealt with in the medical evidence a MAP can deal with these issues even if

these issues are not disclosed in the Appeal without reference to the parties or seeking

further submissions. [see para. 85 – 89]

Gatt v State of New South Wales [2019] NSWSC 451


Decision maker: Campbell J at Common Law


▸ Accepting that a MAP determine a dispute on the papers does not

waive a right to make submissions.

▸ MAPs are specialists so they can apply generalisations to the workers

individual circumstances.

Pascoe v Mechita Pty Ltd [2019] NSWSC 454


Decision maker: Button J at Common Law


▸ A MAC must set out the medical condition which is the cause of the

impairment. [para 56]

▸ Clause 11.4 of the Guidelines also requires a clear statement of the

diagnosis.

▸ If it doesn’t then the reasons provided will not be satisfactory.

Johnson v NSW Workers Compensation Commission [2019] NSWSC 347

Decision date: 3 May 2019

Decision maker: Garling J at Common Law


▸ Where you have a referral to an AMS:

❖ Carefully read the referral – consider what is the purpose of the

referral and does it advance the interests of the worker.

❖ Consider that “Body Systems” are assessed not “Body Bits” or

“Pathology”.

❖ Limit the issues before the AMS - You may be inviting determinations

of fact by the AMS.

❖ Is all the evidence before the AMS?

❖ Is there anything in the evidence that would benefit the worker if

finding are made by arbitrator.

Considerations – AMS Referrals


▸ AMSs can determine causation and the aggregation of injuries for the

purposes of assessment.

▸ You may wish to have the issue of causation/body

systems/aggregation/apportionment of injuries or other issues

determined by an Arbitrator before referral for assessment.

▸ Consider if this requires submissions to the Registrar to alter the

pathway of a matter in the WCC.

Considerations – AMS Referrals


▸ Has the MAP identified the error referred?

▸ MAPs can determine causation/aggregation of injuries.

▸ Once the referred error is “found” all other errors that lead the MAP to a different

conclusion can be corrected.

▸ If issues dealt with by the MAP are contained in the evidence before the MAP there is

no need to revert to the parties to make submissions on these issues. [ Gatt para. 87].

▸ Only “new, disputable” issues require MAP’s to seek additional submissions where

there will be an adverse consequence.

▸ Contrast this with the qualification in Pascoe that AMSs and MAPs are experts and

can apply common sense generalisation to a worker without the need for submissions.

Considerations - MAPS


▸ In 2015 the worker made a s66 claim for compensation for 13% WPI for the spine.

▸ A MAC issued for the spine assessing WPI at 14%. Before the COD issued

proceedings were discontinued.

▸ In 2018 the worker claimed s66 compensation for 16% WPI relying on Avni v Visy

Industrial Plastics Pty Sydney [2016] NSWWCCPD 46.

▸ The respondent argued Avni cannot permit multiple claims in light of the legislated

restriction of s322A. The Respondent argued that a Claim means a “valid claim” not

a “determined claim”

Jasbir Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCC 178

Decision date: 26 July 2018

Decision maker: Deborah Moore, Arbitrator


▸ A “claim” for the purpose of section 66 is a claim that satisfies the requirements of sections

260 and 261.

▸ A “claim” that does not necessarily mean one that is determined.

▸ A worker is entitled to only ONE assessment of permanent impairment and that is the

assessment for all disputes in respect of all past and future permanent impairment claims.

▸ Determined that a worker is bound by s66(1A) of the 1987 Act and s322A of the 1998 Act.

▸ You can only have one claim and one permanent impairment assessment for an injury.

▸ Workers can discontinue a compensation claim and recommence without penalty – Avni

Determination

What went “wrong” in Singh?


▸ WCC says entitled to weeklies from when the worker was cut off.

▸ There is no extinguishing of the rights to weekly payment.

Kennewell v ISS Facility Services Australia t/as SonticPty Limited [2018] NSWWCCC 216

Decision date: 14 September 2018

Decision maker: Paul Sweeney, Arbitrator


▸ The Senior Arbitrator states at [52]:

“I agree with and adopt the reasoning of Arbitrator Sweeney [in Kennewell]

that the language of section 39 does not have a temporal component. It

does not contain temporal embargoes such as appear in other parts of the

workers compensation legislation, for example in sections 59A(2), (3) and (4)

of the 1987 Act. Had the Parliament wished to limit payments to workers such

as Ms Whitton from week 260 until after they had an assessment of greater

than 20% WPI, the Parliament could have so provided.”

Whitton v Secretary, Department of Education [2019] NSWWCC 27

Decision date: 7 January 2019

Decision maker: Josephine Bamber, Senior Arbitrator


▸ Determined weekly payments payable from date ceased following

Kennewell.

Hochbaum v RSM Building Services Pty Ltd [2019] NSWWCC 31

Decision date: 7 January 2019

Decision maker: Josephine Bamber, Senior Arbitrator


▸ Determined s39 applies from date of disentitlement until satisfaction of

the WPI threshold in s39(2).

RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15


Decision maker: Judge Phillips, President


▸ What does the most recent WCD say the worker is entitled to?

Is it Zero?

▸ Can the worker obtain a further MAC?

▸ Is there a prospect of a new MAC either by appeal or

reconsideration?

▸ Whether you are a high or Highest needs worker wont

determine if you get paid.

▸ Ultimately it is the insurer making a WCD that determines you

get paid.

Section 39 Considerations


▸ DOI 3 February 2001. Assaulted while at work. Severe facial injuries.

▸ Primary physical and psychological injuries.

▸ Receiving weeklies because of the severity of the psychological injury.

▸ Insurers IME assessed WPI 44% for the psychological injury (20% for the

physical injury)

▸ The insurer refused to acknowledge its own 44% WPI assessment as

satisfying the threshold for s39 purposes on the basis that the

psychological injury was not compensable under s66.

Mrinal Datta v Universal Consultancy Services Pty Limited [2018] NSWWCC 223

Decision date: 28 September 2018

Decision maker: Paul Sweeney


▸ You do not need an entitlement to compensation as a pre- requisite to an

assessment of permanent impairment.

▸ S39 does not expressly limit an assessment pursuant to s39 to those who

have a right to permanent impairment compensation.

▸ S39 simply uses the method of assessment of permanent impairment as

a bench mark.

Why can a non compensable injury be utilised for the purposes of s39?


▸ Mr Chapman and the First respondent denied he was a worker.

▸ The fact that Mr Chapman made a s66 claim was the basis of the WCC’s jurisdiction.

▸ The issue before the WCC was not determined by the District Court.

▸ So despite the unusual circumstances there was a dispute for the WCC to determine.

▸ The WCC has a broad discretion based on its exclusive jurisdiction and the Rules to join an interested party.

Chapman v Annette Patrick t/as Whites Heavy Haulage and National Transport Insurance Limited

Decision date 15 March 2019

Decision maker: Anthony Scarcella


▸ Think about the pathway a dispute takes in the WCC – there are

consequences flowing from the pathway taken in a s66 assessment.

▸ S39 – Temporal – confirmed on Appeal

▸ The words of the legislation are crucial.

▸ In summing up, courtesy of Denis Denuto:

“it’s the constitution, it’s Mabo,

it’s justice, it’s law, it’s the vibe

and aah no that’s it, it’s the vibe.

I rest my case.”

Traps for old and young players

RECENT WORKERS COMPENSATION DECISIONS (WCC, SC, CA) | 10 May 2019RECENT WORKERS

COMPENSATION DECISIONS

(WCC, SC,CA)

10 May 2019

Manager ILARS

[email protected]

2019 NEWCASTLE SEMINAR

Michael Vella

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Recent workers compensation decisions (WCC, SC, CA) Recent Worke… · RECENT WORKERS COMPENSATION DECISIONS (WCC, SC, CA) | 10 May 2019 A MAC must set out the medical condition which