Legal Bulletin No. 10
This bulletin was issued on 07 May 2021
Issued 7 May 2021
Welcome to the tenth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.
Appeal Decision Summaries
Presidential Member Decisions
WORKERS COMPENSATION: section 261(4) of the 1998 Act, failure to make a claim “occasioned by ignorance, mistake, absence from the State or other reasonable cause”, alleged factual error; application of Raulston v Toll Pty Ltd.
Decision date: 23 April 2021 | Before: Deputy President Michael Snell
WORKERS COMPENSATION: section 352(6) of the 1998 Act; fresh evidence; CHEP Australia Limited v Strickland and Jones v Dunkel considered.
Decision date: 27 April 2021 | Before: President Judge Phillips
WORKERS COMPENSATION: application for an extension of time; section 352(4) of the 1998 Act; rule 16.2(5) of the Workers Compensation Commission Rules 2011; admission of additional evidence on appeal; whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland applied; alleged error of fact; application of Raulston v Toll Pty Ltd; consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission and Brines v Westgate Logistics Pty Ltd considered and applied.
Decision date: 27 April 2021 | Before: Deputy President Elizabeth Wood
WORKERS COMPENSATION: admission of additional evidence on appeal; whether exceptional circumstances exists and whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland applied; alleged error of fact; application of Raulston v Toll Pty Ltd.
Decision date: 27 April 2021 | Before: Deputy President Elizabeth Wood
Workers Compensation non-Presidential Member Decisions
Application for reconsideration pursuant to section 57(1) of the Personal Injury Commission Act 2020 of previous orders for the payment of weekly compensation under sections 36(1) and 37(1) of the 1987 Act to account for jobkeeper payments; application of Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020; where worker found to have no current work capacity; Held- amendments provided by the Regulation do not apply to payments of weekly compensation to workers with no current work capacity under sections 36(1) and 37(1); no statutory basis for providing “credit” to the respondent for payments made under the jobkeeper scheme identified; application for reconsideration declined.
Decision date: 22 April 2021 | Member: Rachel Homan
Claim for weekly benefits and medical expenses, including the cost of proposed resection of the trapezium and suspension arthroplasty of the left and right thumbs; agreement by parties on award of weekly benefits if an award for the applicant was made; concession by respondent that proposed surgery is an appropriate treatment; application of section 4(b)(ii) of the 1987 Act; Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office and Murray v Shillingsworth applied; Held- the applicant sustained injury due to aggravation of osteoarthritis of both thumbs; award for the applicant of agreed weekly benefits and for past medical expenses and cost of surgery; liberty to the parties to apply in respect of the period of weekly benefits.
Decision date: 22 April 2021 | Member: Kerry Haddock
Agreed work-related psychological injury, with dispute as to whether the respondent has discharged its onus of proof in relation to section 11A of the 1987 Act; Held- respondent has not established a defence under section 11A of the 1987 Act that its conduct in relation to discipline was reasonable; award for applicant in relation to weekly compensation, treatment expenses and remittal of lump sum claim to the President for referral to Medical Assessor.
Decision date: 23 April 2021 | Principal Member: Josephine Bamber
Injury to neck and right shoulder and consequential condition to neck and left shoulder; applicant had two shoulder operations and one neck surgery and claims section 60(5) declaration re further neck surgery; Held- applying the relevant criteria in Diab v NRMA Ltd the proposed surgery is reasonably necessary medical treatment; order accordingly.
Decision date: 26 April 2021 | Member: Philip Young
Claim for interest pursuant to section 109 of the 1998 Act on death benefit payable pursuant to section 25 of 1987 Act, where apportionment agreed; Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Ltd considered; consideration of when the claim was “duly made”; Held- claim was duly made when it was fully particularised by provision of evidence of dependency; interest apportioned equally; Civil Procedure Act 2005 not applied; interest awarded at 2% per annum from the date claim was fully particularised to date of hearing.
Decision date: 27 April 2021 | Member: Kerry Haddock
Claim for lump sum compensation for agreed injury to applicant’s lumbar spine and right lower extremity assessed by Medical Assessor at 12% WPI; Work Capacity Decision to reduce applicant’s weekly compensation; Held- applicant established he has no current capacity for employment and award made in accordance with section 37(1) of the 1987 Act.
Decision date: 27 April 2021 | Principal Member: Josephine Bamber
Claim for lump sum compensation pursuant to section 66 of the 1987 Act in respect of disputed injury to the right shoulder, cervical spine and bilateral feet due to nature and conditions of employment; injury to each body part notified and the subject of compensation claims at different times; whether discrete injuries; whether applicant barred from recovering compensation by section 261 of the 1998 Act; Held- applicant sustained injury to all body parts due to nature and conditions of employment; deemed date of injury is date of claim for lump sum compensation pursuant to section 16(1)(a)(ii) of the 1987 Act; section 261(3) applied; matter remitted to President for referral to Medical Assessor.
Decision date: 27 April 2021 | Member: Rachel Homan
Principal of high school suffered primary psychological injury; employer denied liability on the basis that the injury was predominantly caused by reasonable action in respect of discipline in accordance with section 11A(1); where the Employee Performance and Conduct Directorate (EPAC) alleged that the worker forged a co-worker’s signature on a document; where worker given the opportunity to make submissions in respect of the allegation; where EPAC found the offence proven; where worker was removed from her position by reason of the misconduct; where the evidence on which EPAC relied to find misconduct was not provided to the worker before the finding of misconduct; Held- given the worker’s seniority and the grave nature of the allegation, the worker should have been acquainted with the evidence against her before being found guilty of misconduct; consideration of issues arising from Rail Corporation NSW v Aravanoupules; award for worker for conceded total capacity in respect of the first and second entitlement periods.
Decision date: 28 April 2021 | Member: Paul Sweeney
Workers Compensation Medical Appeal Panel Decisions
Appeal against finding of 7% WPI for the lumbar spine in a combined value 15% finding; issue related to section 323 where deduction not given for admitted earlier symptoms; nature of injury and section 4 of the 1987 Act considered; referral omitted the word “deemed”; point not taken; frank injury finding not open on evidence; worker commenced 1998; first symptoms 2004; injury date 2006; Held- injury in nature of disease; Cullen v Woodbrae applied; no evidence of pre-existing condition on commencement of employment; MAC confirmed.
Decision date: 21 April 2021 | Panel Members: Member John Wynyard, Dr James Bodel and Dr David Crocker | Body system: Lumbar spine and left upper extremity
Injury to right lower extremity, lumbar spine and scarring; the Medical Assessor did not assess impairment in respect of the right knee as part of the right lower extremity; Held- as injury was undisputed the right knee should have been assessed and this was an error; re-examination was required; MAC revoked.
Decision date: 21 April 2021 | Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder | Body system: Lumbar spine, right lower extremity and scarring TEMSKI
The worker suffered injury to the right wrist fracturing the scaphoid and causing degenerative changes in the radio-carpal joint and damage to the ulnar nerve; there was a pre-existing condition involving a fracture of the right radius requiring internal fixation; the AMS assessed 14% for the right upper extremity, 4% for the ulnar nerve and 0% for the scarring and made a 10% deduction pursuant to section 323 for the right upper extremity; both parties filed appeals; Held- the AMS failed to give adequate reasons explaining the section 323 deduction and the assessment of the scarring; El Masri v Woolworths Ltd applied; the assessment of the ulnar nerve of 4% should have been upper extremity impairment and not whole person impairment and then internally combined with the wrist and elbow; paragraph 16.1c and Table 16-15 of AMA 5; the AMS also failed to assess carpal instability when that claim had been made; on reassessment the AMS concluded that the statutory deduction of 10% applied; further x-rays of the right wrist were requested as well as updated photographs of the scars; the Appeal Panel concluded that the worker did not satisfy Table 16-25 of AMA 5 for carpal instability and observed that paragraphs 2.11 and 2.12 of the fourth edition guidelines otherwise warned against duplication of impairments; the scars were reassessed at 0% WPI; the ulnar nerve impairment was internally combined with the other losses of the right upper extremity; MAC revoked and worker assessed at 14% WPI.
Decision date: 22 April 2021 | Panel Members: Principal Member John Harris, Dr Brian Noll and Dr Mark Burns | Body system: Right upper extremity and scarring
Appeal by employer on the basis of the alleged failure of the Medical Assessor (then AMS) to make a deduction pursuant to section 323 of the 1998 Act for pre-existing injury, condition or abnormality; finding that one of two previous injuries suffered by the respondent worker contributed to the current level of 17% whole person impairment assessed by the Medical Assessor as a result of injury to the lumbar spine (undisputed by the appellant and respondent worker); finding that the Medical Assessor was in error in not making a section 323 deduction; appellant’s submission that, based on the assessment of the IME engaged by it, that the deduction should be 6% rejected; finding that having regard to the evidence there should be a deduction of 1/10th from the 17% WPI assessed by the Medical Assessor, reducing the final level of injury caused WPI to 15% WPI; Held- MAC of Medical Assessor revoked and new MAC issued.
Decision date: 26 April 2021 | Panel Members: Member Brett Batchelor, Dr Richard Crane and Dr Ross Mellick | Body system: Lumbar spine and scarring
Challenge to the PIRS category of social functioning; submissions not consisted with the evidence; Medical Assessor assessed a Class 2; Held- Panel agreed the evidence supported this assessment; MAC confirmed.
Decision date: 26 April 2021 | Panel Members: Member Deborah Moore, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychiatric/ psychological disorder
Appeal against finding of 3% for injury where 17 year old worker punched a wall; report by medico-legal expert critical of MAC rejected; Topic v Department, Aging, Disability and Homecare applied; submissions regarding examination by Medical Assessor rejected as being speculative and unsupported; submissions regarding scarring no more than caviling over an opinion about which reasonable minds might differ (1% v 2%); Held- MAC confirmed.
Decision date: 28 April 2021 | Panel Members: Member John Wynyard, Dr Tommasino Mastroianni and Dr John Brian Stephenson | Body system: Right upper extremity and scarring
Appeal against finding of 9% regarding industrial deafness; Medical Assessor did not allow BHI at 1500Hz in face of audiogram consistent with such loss from noise exposure; worker in noisy employments since 1964; Held- Shone v Country Energy and Nobrega v Buena Bela Floor & Wall Tiling applied; Medical Assessor failed to give adequate reasons; intensity and duration of noise exposure consistent with industrial hearing loss at 1500Hz; MAC revoked.
Decision date: 28 April 2021 | Panel Members: Member John Wynyard, Dr Henley Harrison and Dr Joseph Scoppa | Body system: Hearing
Worker suffered an injury to her right ankle requiring surgery on two occasions and consequential conditions in both knees requiring arthroscopic surgery; method of assessment of knees; worker contended that assessment should have been under AMA 5 Table 17-31 for chondromalacia; osteoarthritis in both knees meant that Table did not apply; assessed under Table 17-33; no error with respect to the assessment of scarring; Held- MAC confirmed.
Decision date: 28 April 2021 | Panel Members: Member Catherine McDonald, Dr Margaret Gibson and Dr J Brian Stephenson | Body system: Right lower extremity, left lower extremity and scarring TEMSKI
Merit Review Decision
Dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); various forms of employment in the music field; following a period of maternity leave; earner; earnings she could have reasonably expected to earn but for the injury; booked for singing lessons; voice teacher; vocal performer; Held- the reviewable decision is set aside; PAWE amount determined; exceptional circumstances exist to justify payment of legal costs.
Decision date: 21 April 2021 | Merit Reviewer: Maurice Castagnet
This publication is for information only. The publication is not legal advice. The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for the way the information is used.
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