Legal Bulletin No. 14

Issued 4 June 2021

Welcome to the fourteenth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.

The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis.

Supreme Court Decision

Wahhab v Insurance Australia Ltd [2021] NSWSC 521

ADMINISTRATIVE LAW; judicial review; decision of principal claims assessor under Motor Accidents Compensation Act 1999 (NSW) not to refer claim for assessment; whether extant claim; whether existence of claim a jurisdictional fact or fact to be determined by claims assessor; TORTS; negligence; motor vehicle accident; claim deemed to have been withdrawn; reinstatement refused; whether deemed withdrawal prevented further pursuit of claim; whether claimant could re-lodge claim.

Decision date: 12 May 2021 | Before: Basten J

Motor Accidents non-Presidential Member Decision

AAU v GIO Ltd [2021] NSWPIC 127

Miscellaneous claims; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11, 3.28 and 3.38 of the Motor Accident Injuries Act 2017; ebike; wholly or mostly at fault; changing lanes; both vehicles were the first vehicles stopped at the lights; collision; both vehicles moved off together; cyclist hit by car from behind; Held-claimant did not give way to Insured Driver; claimant wholly at fault.

Decision date: 14 May 2021 | Member: Stephen Boyd-Boland

Workers Compensation non-Presidential Member Decisions

Zhang v Universe Investments Pty Ltd t/as Kinds Seafood [2021] NSWPIC 128

Liability for payment of lump sum death benefit and apportionment and interest on sums apportioned pursuant to Certificate of Determination dated 23 March 2021; The first respondent (employer) sought reconsideration of the award of interest pursuant to section 350(3) of the 1998 Act; reconsideration allowed; review of when the claims of the dependants were ‘duly made’ and the rate of interest that should be awarded on the sums apportioned to those dependants; Held- orders for the payment of interest and the Certificate of Determination and Statement of Reasons revoked and new orders made; Certificate of Determination and Statement of Reasons otherwise confirmed.

Decision date: 20 May 2021 | Member: Brett Batchelor

Zdanovits v Officemax Australia Limited [2021] NSWPIC 129

Claim for permanent impairment compensation; matter remitted by consent for referral to an Approved Medical Specialist (AMS) with two dates of injury, both relating to psychological injury; AMS issued a Medical Assessment Certificate attributing 6% whole person impairment to the first date of injury, and 14% to the second; whether the applicant is entitled to aggregate the impairments, or whether an award for the respondent should be entered, as neither impairment reaches the threshold for an award of permanent impairment compensation; Held- the evidence supports a finding that the impairments arising from the two injuries are as a result of identical pathology, namely psychological injury (or more specifically, Post Traumatic Stress Disorder); Department of Juvenile Justice v Edmed followed; even if the impairments arising from the injuries do not arise from identical pathology, the evidence establishes the first injury materially contributed to the second; Ozcan v Macarthur Disability Services Ltd followed; the applicant is entitled to aggregate the impairments arising from the two injuries; order the respondent to pay the applicant permanent impairment compensation with respect to a 19% whole person impairment.

Decision date: 20 May 2021| Member: Cameron Burge

Anderson v Fulton Hogan Industries Pty Ltd [2021] NSWPIC 130

Claim for compensation for medical treatment pursuant to section 60 of the 1987 Act; applicant had previous moderate to severe periodontal disease; whether dental treatment was reasonably necessary as a result of the work injury; Held– the proposed treatment was reasonably necessary as a result of the work injury.

Decision date: 20 May 2021 | Member: Karen Garner

Dominguez v De Martin and Gasparini Pty Ltd [2021] NSWPIC 131

Application for reconsideration of an order to pay weekly payments of compensation; worker found to have no current work capacity as a result of injury to lumbar spine and left shoulder; worker also in receipt of weekly payments for a separate injury to the left ankle; issue as to the date when the worker claims weekly payments of compensation and when he is to be paid weekly payments of compensation; Held- decision reconsidered; Certificate of Determination amended to award weekly payments from date claimed in the ARD and consistent with Certificates of Capacity provided by the worker; credit to the respondent for weekly payments already made for separate injury to the left ankle.

Decision date: 21 May 2021 | Member: John Isaksen

Dixon v Sutherland Shire Council [2021] NSWPIC 132

Psychological Injury; dispute under section 11A of the 1987 Act; whether the applicant’s undisputed psychological injury was wholly or predominantly caused by the reasonable action of the employer in relation to performance appraisal, dismissal or discipline; employer bears onus of proof; evidence weighed in balance; Held- not satisfied on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to performance appraisal, discipline or dismissal; worker not precluded from the recovery of compensation by reason of section 11A; it was undisputed that the worker had no current capacity for employment; award for the worker.

Decision date: 21 May 2021 | Member: Jane Peacock

Stewart v State of New South Wales (NSW Police Force) [2021] NSWPIC 133

Police officer paid weekly compensation in respect of an accepted psychological injury from 2010 to the present; claims a separate award of compensation in respect of an incapacity resulting from earlier physical injuries; assessment of compensation in accordance with the former section 40; Held- acceptance that but for injury the applicant would have been promoted to the rank of Detective Sergeant; consideration of principles in Cordina Chicken Farms Pty Ltd v Thoa Hong Le and J C Ludowici & Sons Ltd v Cutri; application of the section 40 discretion to reduce the applicant’s entitlement to weekly compensation for physical injury by 75% during total incapacity caused by psychiatric injury; no reduction during concurrent partial incapacities as respondent did not press argument at the arbitration hearing; order that the parties bring in short minutes reflecting the Commission’s findings.

Decision date: 21 May 2021 | Member: Paul Sweeney

Milovanovic v The Ubeeco Group Pty Ltd [2021] NSWPIC 134

Claim for lump sum compensation under section 66 in respect of accepted injury to right shoulder, disputed cervical spine injury and disputed consequential left shoulder condition; delay in notifying cervical spine injury; credibility of applicant’s evidence having regard to failure to disclose previous right shoulder symptoms; whether applicant’s evidence as to nature and conditions of employment accurate; defects in medicolegal evidence; Held- Commission satisfied having regard to evidence as a whole that cervical injury and consequential left shoulder condition sustained; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment.

Decision date: 21 May 2021 | Member: Rachel Homan

Caithness v Thomas Roofing Pty Ltd [2021] NSWPIC 135

Claim for the cost of dental treatment pursuant to section 60 of the 1987 Act; claim that the loss of dentition resulted from long-term use of opioid medication for treatment of accepted injuries and surgery to lumbar spine; respondent conceded that the proposed treatment was appropriate for the applicant’s condition; Murphy v Allity Management Services Pty Ltd and Kooragang Cement Pty Ltd v Bates applied; Held- necessity for treatment resulted from accepted injuries to lumbar spine, as the injury materially contributed to the need for dental treatment, due to the applicant’s long-term use of opioid medication to alleviate the effects of the injuries to the lumbar spine.

Decision date: 24 May 2021 | Member: Kerry Haddock

Kettley v Lindsay Brothers Management Pty Limited [2021] NSWPIC 136

Calculation of PIAWE; award earlier made in favour of the applicant, but dispute existed regarding the correct amount of award because of different approaches to PIAWE by the parties; Held- former provisions 44c to 44g apply and respondent’s calculation the preferred approach; award for applicant accordingly.

Decision date: 25 May 2021 | Member: Philip Young

Ugarte-Veliz v Secretary, Department of Communities and Justice [2021] NSWPIC 137

Permanent impairment claim; journey claim, section 10(3A) real and substantial connection in dispute; Bina v ISS Property Services Pty Limited and Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden considered and applied; aggravation of disease; Elsamad v Belmadar Pty Ltd, Federal Broom Co Pty Ltd v Semlitch, May v Military Rehabilitation and Compensation Commission considered and applied; Held- found real and substantial connection between accident and employment and aggravation of disease; matter remitted for referral to Medical Assessor.

Decision date: 25 May 2021 | Member: Michael Wright

Diaz v Dimeo Cleaning (NSW) Pty Ltd [2021] NSWPIC 138

Claim for condition in applicant’s left shoulder consequent upon undisputed injury to her right upper extremity (wrist and shoulder); the applicant relies on the “common sense test of causation” referred to in Kooragang Cement Pty Ltd v Bates and the comments of Roche DP in Murphy v Allity Management Services Pty Ltd; the respondent does not challenge the applicant’s credit, but relies on what was said in Department of Education and Training v Ireland as to the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine lawful entitlement to compensation; detailed examination of the treating and expert medical evidence; Held- finding that such evidence, when considered with the applicant’s evidence was sufficient to show that the undisputed injury to the right upper extremity materially contributed to the condition in the left shoulder; matter referred to a Medical Assessor for assessment of WPI as a result of injury to the right upper extremity (wrist and shoulder) and condition in the left upper extremity (shoulder) consequent upon that injury.

Decision date: 25 May 2021 | Member: Brett Batchelor

Jones v Donau Pty Ltd [2021] NSWPIC 139

Consequential condition; claim for permanent impairment to both shoulders; frank injury to right shoulder accepted, consequential condition to left shoulder in dispute; Held- in a civil case – particularly where the applicant’s credit is not in issue, the presence or otherwise of corroborative evidence is not determinative of a question of fact such as whether a consequential condition is present; Baker v Southern Metropolitan Cemeteries Trust discussed; however, in this matter there was contemporaneous evidence of the applicant complaining of the consequential condition to his treating surgeon in any event; in order to establish the presence of a consequential condition, a worker does not need to satisfy the requirements for injury as set out in section 4 of the 1987 Act; Moon v Conmah Pty Limited and Kumar v Royal Comfort Bedding followed; on a common-sense evaluation of the evidence, the applicant suffered a consequential condition to his left shoulder; Kooragang Cement Pty Ltd v Bates followed; matter remitted to the President for referral to a Medical Specialist to determine the permanent impairment arising from both the frank right shoulder injury and the consequential condition of the left shoulder.

Decision date: 26 May 2021 | Member: Cameron Burge

Faitrouni v Scotts Refrigerated Freightways [2021] NSWPIC 140

Claim for lump sum compensation; undisputed injury to the lumbar spine and left lower extremity in a fall from a vehicle in the course of employment; dispute concerned whether thoracic spine also injured; evidence weighed in the balance; Held- satisfied on the balance of probabilities that the thoracic spine also injured; finding in favour of the applicant; matter remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the lumbar spine, thoracic spine and left lower extremity.

Decision date: 26 May 2021 | Member: Jane Peacock

Workers Compensation Medical Appeal Panel Decisions

Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76

Claim for hearing loss with a deemed date of injury on 2 April 2006; AMS erred in making a deduction under section 323 of the 1998 Act for hearing loss that occurred in respect of the period of employment after 2 April 2006; question of whether there should be any deduction for hearing loss in subsequent employment; Smith v Mann, Tame v Commonwealth Collieries, Williams v Metropolitan Coal Co Ltd, Commonwealth v Bourne, Commonwealth v Thompson, Bain v Commissioner for Railways, Connair Pty Ltd Frederiksen, Russo v World Services and Constructions Pty Ltd, Rico Pty Ltd v Road Traffic Authority, Crisp v Chapman, Blayney Shire Council v Lobley & Anor, A & G Engineering Pty Ltd v Civitarese, Lennon v TNT Australia Pty Ltd and Schofield v Abigroup Limited considered; Held- no deduction should be made in respect of any loss in the respondent’s employment after 2 April 2006; MAC revoked.

Decision date: 24 May 2021 | Panel Members: Member Carolyn Rimmer, Dr Henley Harrison and Dr Joseph Scoppa | Body system: Hearing

Woolworths Group Limited v Jonmarie Gray [2021] NSWPICMP 77

Respondent employer appealed on the basis that the Medical Assessor (MA) erred in assessing the right elbow when the claim related solely to the right wrist and left shoulder; MA assessed pronation and supination in the right elbow caused by restriction of movement in the forearm caused by the wrist injury; AMA 5 provides that the restriction in pronation and supination is measured by reference to Figure 16-36 which is set out under 16.4 “Elbow Motion Impairment”; Held- MAC confirmed.

Decision date: 26 May 2021 | Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr David Crocker | Body system: Right upper extremity and left upper extremity

Merit Review Decisions

AAV v AAI Ltd t/as GIO [2021] NSWPICMR 9

Merit review; whether the insurer is entitled to issue a direction to the claimant under section 6.26 of the Motor Accident Injuries Act 2017; failing to provide particulars; admitting liability; non-minor injury; application for damages; Directions Notice; claim deemed withdrawn; medical assessments; Direction given in accordance with the Motor Accidents Guidelines; Held- reviewable decision affirmed.

Decision date: 17 May 2021 | Merit Reviewer: Ray Plibersek

AAW v GIO Ltd [2021] NSWPICMR 10

Merit review; amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; earner; receiving jobseeker payments; not demonstrated a loss of earnings due to the accident; earning income from her business; legal costs; exceptional circumstances; Centrelink payments are not income from personal exertion; issued orders for the claimant to produce documents; none were produced; income earned as a Director of a company constitutes income from personal exertion; Held- unlikely to have incurred a loss of earnings; no exceptional circumstances; decision affirmed.

Decision date: 18 May 2021 | Merit Reviewer: Kriesen Seeneevassen

AAS v NRMA Ltd [2021] NSWPICMR 11

Merit review; amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; date of accident 27 September 2020; decision not to pay statutory benefits from 28 September 2020 to 31 December 2020; late claim; not made within 28 days after the date of the motor accident; the Act and the Guidelines do not provide exceptions to the 28 day time frame; no discretion; Held- affirm the insurer’s decision.

Decision date: 19 May 2021 | Merit Reviewer: Roohi Koya

AAT v NRMA [2021] NSWPICMR 12

Merit review; weekly payments of Statutory benefits under Division 3.3  of the Motor Accident Injuries Act 2017; graphic designer; pre and post-accident earning capacity; required surgery for a fracture of the left distal radius; certificates of capacity; earning capacity decision after 78 weeks; certified fit to resume his pre-injury duties; relevant notice period complied with; applied for multiple positions as a graphic designer and other roles without success; Held- decision affirmed.

Decision date: 20 May 2021 | Merit Reviewer: Michael Sofoulis

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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