Legal Bulletin No. 12
This bulletin was issued on 21 May 2021
Issued 21 May 2021
Welcome to the latest edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.
Presidential Member Decisions
WORKERS COMPENSATION: Section 11A(1) of the 1987 Act; defence based on allegedly reasonable action of the employer in respect of discipline; section 4(b) of the 1987 Act; application of the ‘disease’ provisions.
Decision date: 7 May 2021 | Before: Deputy President Michael Snell
WORKERS COMPENSATION: Section 9AA of the 1987 Act; connection with State of New South Wales; procedural fairness; credibility of witness; findings of dishonesty, creating false and misleading evidence made without Arbitrator raising preliminary view with the parties; State of New South Wales v Hunt applied; weekly compensation; whether weekly payments made under Queensland workers compensation scheme should be taken into account for entitlement to weekly compensation under the 1987 Act.
Decision date: 11 May 2021 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Claims assessment; settlement approval; casual truck driver; temporarily trapped; hit right knee; non-minor injuries; now 63 years of age; truck driver; not working at time of the accident; damaged left arm; depression; assaulted; pre-existing osteoarthritis in his right knee; already on a waiting list before the accident; right total knee replacement surgery; left shoulder rotator cuff repair and sub-acromial decompression; high levels of anxiety, depressive symptoms and anger/irritability; Major Depressive Disorder; Held- not entitled to damages for non-economic loss; entitlement to damages for economic loss; satisfied the proposed settlement is just, fair and reasonable.
Decision date: 7 May 2021 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Teacher suffers accepted psychiatric injury; respondent denies liability on basis of section 11A(1) asserting that injury caused by admonitory interview with principal following outburst by worker at school assembly; where worker had long history of disenchantment with school; where she had previously sought medical treatment for work-caused anxiety; where symptoms continued to time of interview; Attorney-General v K considered; Held- that respondent had established that the interview was reasonable action with respect to discipline but not that workers condition was predominantly caused by that action; award for worker for weekly compensation and medical expenses.
Decision date: 4 May 2021 | Member: Paul Sweeney
Section 4 injury, lack of early contemporaneous complaint; consideration of histories given to Medical Practitioners not adopted in statement form; Greenhills Childcare Centre Inc v Meireles and J B Metropolitan Distributors Pty Ltd v Kitanoski considered; Held- applicant sustained an injury within the meaning of section 4A of the 1987 Act; the proposed surgery is reasonable.
Decision date: 6 May 2021 | Member: Elizabeth Beilby
Claim for further lump sum compensation under section 66 of the 1987 Act; accepted orthopaedic injuries; whether applicant sustained consequential hypertension and diabetes conditions as a result of injury; whether significant weight gain; inconsistent histories regarding onset of conditions; Held-consequential conditions accepted; matter remitted to President for referral to a Medical Assessor to assess the degree of further permanent impairment.
Decision date: 6 May 2021 | Member: Rachel Homan
Agreed work related psychological injury; claim for weekly compensation and medical expenses; respondent disputed liability to pay compensation pursuant to section 11A of the 1987 Act, capacity for employment and treatment expenses also disputed; Held- respondent has not discharged its onus of proof to establish the employer’s conduct in relation to dismissal was reasonable, notwithstanding applicant was dismissed in probation period; award for applicant made for weekly compensation during period in which it was found she had no current work capacity, thereafter award for the respondent; award for applicant pursuant to section 60 of the 1987 Act.
Decision date: 10 May 2021 | Principal Member: Josephine Bamber
Claim for lump sums for injury to both shoulders and cervical spine based on alleged disease injury from nature and conditions of employment; earlier (2019) proceedings involving the same injuries and essentially the same or similar evidence based on personal injury/incident resulting in 2019 consent determination which included award for the respondent with respect to cervical spine injury or consequential cervical spine injury; whether applicant estopped by Anshun estoppel or res judicata from basing claim in 2021 proceedings on disease injury for cervical spine and left shoulder injuries; whether applicant suffered disease injuries from nature and conditions of employment; Held- Anshun estoppel prevents applicant relying on disease injury with respect to the cervical spine injury; no estoppel with respect to left shoulder injury; distinguished from Fourmeninapub Pty Ltd v Booth given the applicant had available to him the same or similar material in the 2019 proceedings as the 2021 proceedings; consideration of public policy relating to the potential for conflicting or contradictory determinations.
Decision date: 10 May 2021 | Member: Michael Perry
Claim for weekly benefits pursuant to section 38A of the 1987 Act and for a determination pursuant to section 53 of that Act; Held- the respondent’s submission that the failure of the applicant to supply particulars of post-injury earning or earning capacity to enable a determination of the weekly payments to which the applicant may be entitled rejected; the applicant’s claim, based on Hee v State Transit Authority of New South Wales, that as he is a worker with highest needs and has current work capacity in accordance with the definition of that term in section 32A of the 1987 Act he is entitled to an award in the sum prescribed in section 38A(1), accepted; award in favour of the applicant at the rate prescribed in section 38A(1), as indexed; determination pursuant to section 53 of the 1987 Act that the incapacity for work resulting from the applicant’s injury likely to be permanent.
Decision date: 10 May 2021 | Member: Brett Batchelor
Claim for weekly payments of compensation, medical expenses and permanent impairment due to psychological injury that results from crush injury to hand and claim for injury to lumbar spine from the same incident; consideration of medical evidence in relation to several possible psychological conditions; whether the applicant sustained a primary psychological injury and/or secondary psychological injury; reference to State of NSW (Department of Education) v Kaur, Cannon v The Healthy Snack People P/L and RSL (Qld) War Veteran’s Homes Ltd v Watkins; whether weekly payments can be awarded for no current work capacity pursuant to section 38 of 1987 Act; Held – worker sustained a primary psychological injury and secondary psychological injury in the course of his employment; worker sustained an injury to his lumbar spine in same incident; worker has had no current work capacity since 16 July 2020 as a result of psychological injury; award of weekly payments of compensation for no current work capacity, medical expenses and referral to Medical Assessor for assessment of permanent impairment for primary psychological injury.
Decision date: 10 May 2021 | Member: John Isaksen
Claim for weekly payments of compensation for partial incapacity as a result of injury to right ankle, right shoulder and consequential condition affecting lumbar spine; whether the worker was an ‘existing recipient of weekly payments’ for purposes of calculating her entitlements to weekly payments; reference to Kilic v Kmart Australia P/L and Soares v Maxitherm Boilers P/L; Held – worker had a partial incapacity for work and entitled to weekly payments; worker was not an existing recipient of weekly payments of compensation immediately before 17 September 2012 or 1 October 2012; award of weekly payments to worker pursuant to section 37 of the 1987 Act.
Decision date: 11 May 2021 | Member: John Isaksen
Claim for costs payable under section 60 of the 1987 Actfor proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair as a result of injury sustained to the applicant’s right shoulder with a deemed date of injury of 11 February 2018; consequential left shoulder injury placed in issue; Held– the applicant has sustained consequential injury to his left shoulder and the proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair is reasonably necessary treatment resulting from that injury.
Decision date: 11 May 2021 | Member: Jacqueline Snell
Claim for weekly benefits and medical expenses for conceded psychological injury; respondent relied on section 11A of the 1987 Act, being actions with respect to transfer and/or discipline; applicant disputed that injury was wholly or predominantly caused by meeting with his manager, that the meeting was a disciplinary meeting, and that the respondent’s action was reasonable; dispute as to the extent of incapacity for work; Northern NSW Local Health Network v Heggie applied; Held-the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline; the respondent’s action was not reasonable; the applicant has no capacity for work; award for the applicant for weekly benefits and medical expenses.
Decision date: 12 May 2021 | Member: Kerry Haddock
Application by applicant to amend Certificate of Determination in past proceedings (the 2020 proceedings) to reflect correct PIAWE; the agreement between parties as to the PIAWE recorded in the Statement of Reasons and Certificate of Determination in the 2020 proceedings was in respect of an incorrect PIAWE; Held- respondent consents to amendment sought by the applicant; Certificate of Determination in current proceedings issued to order the respondent to pay the applicant weekly benefits calculated with reference to the correct PIAWE.
Decision date: 12 May 2021 | Member: Brett Batchelor
Workers Compensation Medical Appeal Panel Decisions
Appeal against MAC on the grounds of assessment made on the basis of incorrect criteria and/or that the MAC contains a demonstrable error; psychiatric injury, and only ground of appeal relied on was an incorrect PIRS classification in respect of concentration, persistence and pace; Held- finding by the Appeal Panel that the Medical Assessor had not provided sufficient reasons for his classification of the appellant in Class 2 rather than Class 3; appellant re-examined by a member of the Appeal Panel who classified her in Class 3 for concentration, persistence and pace; MAC of Medical Assessor revoked and new certificate issued.
Decision date: 7 May 2021| Panel Members: Member Brett Batchelor, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychological/ psychiatric disorder.
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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