Legal Bulletin No. 11
This bulletin was issued on 14 May 2021
Issued 14 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.
The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis.
Appeal Decision Summaries
Please click here to access the latest Appeal Case Summaries
Presidential Member Decisions
JA & MA Costa Pty Ltd v Makouk NSWPICPD 11
WORKERS COMPENSATION- whether a ‘dispute’ existed within the meaning of sections 289 and 289A of the 1998 Act; Procedural fairness; Chanaa v Zarour, Re Minister for Immigration & Multicultural Affairs; Ex parte Lam and Re Refugee Review Tribunal; Ex parte Aala considered and applied.
Decision date: 6 May 2021 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Hector v QBE Insurance (Australia) Ltd  NSWPIC 99
Claims assessment; settlement approval; riding his bicycle; lump sum damages claim; degree of impairment is 33%; neck injury with radiculopathy and three thoracic compression fractures; IT management; working in his usual capacity now; not returned to soccer; soccer was a big part of his life; currently aged 38; Held- satisfied the proposed settlement figure is an appropriate one.
Decision date: 8 April 2021 | Member: Belinda Cassidy
Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; additional information; assessment of non-economic loss; passenger; collision at high speed; aged 77 at the time; extensive injuries; multiple fractures of cervical spine, ribs and sternum; humerus fracture; comminuted tib/fib fracture; fractures of the right ankle and left mid foot; significant recovery from her initial injuries; lifetime Care and Support; Held- proposed settlement is just, fair and reasonable; proposed settlement approved.
Decision date: 28 April 2021 | Member: Shana Radnan
AAP v NRMA Insurance Ltd  NSWPIC 101
Claims assessment; claim for damages; injury loss and damage; pedestrian; 75 years of age; serious injuries; consequential injuries; damages limited to non-economic loss; was fit and mobile; unsteady on her feet and fell; elbow injury; fell heavily; fracture of right hip; loss of mobility and agility; Held- insurer owed a duty of care and breached that duty of care and as a result claimant sustained injury loss and damage; damages awarded.
Decision date: 29 April 2021 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Johansen v Interstate Enterprises Pty Ltd  NSWPIC 102
Claim for section 60 expenses in respect of left shoulder surgery; accepted injury to lumbar spine; whether left shoulder injured in same event; lack of contemporaneous medical evidence; first reporting of shoulder symptoms suggested onset of shoulder pain after lumbar surgery; opinions on causation based on a history of immediate onset of pain; Held- Commission not satisfied shoulder injured in the injurious event; although the surgery is reasonably necessary, the causal relationship to injury is not established.
Decision date: 29 April 2021 | Member: Rachel Homan
Dick v Hazwatch Pty Ltd  NSWPIC 103
Psychological Injury; dispute about causation; both independent medical experts agreed that the applicant had suffered a psychological injury but had differing views on causation; factual dispute about the severity of an incident at work; evidence weighed in balance; Held- satisfied on the balance of probabilities that the psychological injury arose out of or in the course of employment with the respondent; award for the applicant.
Decision date: 29 April 2021 | Member: Jane Peacock
Hay v Shellharbour Private Hospital Limited  NSWPIC 104
Applicant sought compensation for the cost of proposed surgery to treat pelvic organ prolapse, which applicant contended was an injury within meaning of section 4(a), due to a heavy lift she did on a particular day; or alternatively within meaning of section 4(b)(ii) due to repetitive lifting she had done over the whole period of her employment; respondent disputed applicant suffered an injury, and if section 4(a) injury disputed that her employment was a substantial contributing factor to injury; Held- applicant suffered injury simpliciter and her employment was a substantial contributing factor to the injury.
Decision date: 29 April 2021 | Member: Marshal Douglas
Senico v Transport for New South Wales  NSWPIC 105
Consequential condition; claimant injured right knee working as a rigger on the Harbour Bridge; right high tibial osteotomy surgery damaged lateral popliteal nerve necessitating further surgery and subsequent hospital admission for infection; claimant on crutches for 13 months; developed low back pain; application for referral cost of $89.55 to neurosurgeon for treatment & management declined on basis that back condition not consequential; Held- condition consequential; respondent specialist rejected as reports inconsistent; Tudor Capital Australia Pty Limited v Christensen referred to re medical possibility and balance of probabilities.
Decision date: 5 May 2021 | Member: John Wynyard
Workers Compensation Medical Appeal Panel Decisions
CD Construction & Building Services Pty Ltd v Healey  NSWPICMP 65
The worker suffered facial and abdominal injuries from a motor vehicle accident; the abdominal injury was treated by bowel resection; the worker was assessed by three approved medical specialists and the combined assessment totalled 40%; the employer’s appeal was restricted to the finding of Class 2 impairment under Table 6-3 of AMA 5 and the assessment of 15% WPI for the upper digestive tract; the worker accepted that there had been error but asserted that he should be assessed as Class 3; Held- the Appeal Panel accepted the parties’ joint submission of error and an assessor re-examined the worker; on re-examination the worker had signs of gastric outlet obstruction evidenced by positive gastric splash signs likely due to adhesions caused by the abdominal surgery and gastro-oesophageal reflux which was treated by Nexium; the worker was assessed as Class 2 of Table 6-3 of AMA 5 noting that desirable weight is defined in the first instance by reference to pre-injury weight and not by reference to the weight tables under Table 6-1; the hospital records showed that the worker weighed 93 kilograms on his initial admission to hospital and his current weight was slightly below this weight; the worker otherwise satisfied the requirements in Class 2 of Table 6-3; observations by the Appeal Panel of applying a “best fit” analysis to the characterisation of Classes in Table 6-3 where the criterions were not mutually exclusive, and a worker could satisfy some of the criteria in separate classes but not all the criteria in one class; Appeal Panel observed that if the condition were worse than that prescribed by Class 1 but did not meet the criteria in Class 2, it would be an absurd result not to assess an impairment; Uelese v Minister for Immigration and Border Protection applied; in those circumstances a worker should be assessed under Table 6-3 on a best-fit basis; MAC confirmed.
Decision date: 29 April 2021 | Panel Members: Principal Member John Harris, Dr John Garvey and Dr John Dixon-Hughes | Body system: Digestive system
Burfitt v Secretary, Department of Education  NSWPICMP 66
Appeal against finding of nil WPI for lumbar spine in 7% finding for left lower extremity and scarring: Medical Assessor mistook reasoning of specialist for accepting DRE II assessment for lumbar spine; failed as a consequence to give adequate reasons for lumbar DRE I finding where both specialists had found DRE II; re-examination and call for unserved neurologist report re peripheral neuropathy; Held- symptomatology in toes caused by peripheral neuropathy and not compensable, but on examination criteria for a DRE II finding present; MAC revoked and 7% WPI added.
Decision date: 3 May 2021 | Panel Members: Member John Wynyard, Dr Mark Burns and Dr Brian Noll | Body system: Left lower extremity, scarring and lumbar spine
Murphy v Tradelink Pty Limited  NSWPICMP 67
Appellant alleges five errors in the determination of Medical Assessor that he suffered 13% WPI in respect of psychiatric injury; appellant also sought to rely on additional relevant information- section 327(3)(b)- being a report dated two days before the assessment arising from an initial telehealth appointment with a general practitioner, a psychologist’s treatment recommendation and a report from a psychiatrist which post-dated the assessment; only the latter report held to be both relevant and not available before the assessment; Held- that assessor had made rounding error- Guidelines 1.26; otherwise the appellant had not demonstrated error; appellant did not challenge findings of assessor of pre-existing condition but alleged if it had been specially assessed -Guidelines 11.10- it would have yielded a deductible proportion of 0% rather than the 10% deducted by the assessor pursuant to section 323(2); that the assessor had provided clear reasons why it was not possible or difficult to fully ascertain extent of pre-existing condition; both IME’s had made an identical deduction on same basis; appellant alleged errors of classification in respect of Travel and Employability, although his IME had classified both categories in the same way; as assessor found inconsistencies in appellant’s account it was open to him to prefer the history recorded at his examination over the statement evidence of the applicant; assessor demonstrated the actual part of his reasoning; Wingfoot Australia Partners Pty Limited v Kocak applied; MAC revoked and new MAC issued to reflect rounding error.
Decision date: 4 May 2021 | Panel Members: Member Paul Sweeney, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological/ psychiatric disorder
Domathoti v Hyne & Son Pty Limited  NSWPICMP 68
Psychological injury; application of the PIRS Tables; Ferguson v State of NSW and Parker v Select Civil applied; worker provided information inconsistent with reports of treating practitioners; AMS called for information under section 324 of the 1998 Act; Held- reliance on that material (including academic transcript) without further examination was not a denial of procedural fairness; assessments under PIRS Tables were a valid exercise of clinical judgement; MAC confirmed.
Decision date: 5 May 2021 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Julian Parmegiani | Body system: Psychological/ psychiatric disorder
Merit Review Decision
AAL v GIO Limited  NSWPICMR 6
Dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; self-employed; sales invoices; insufficient information; provided further documents; impact of COVID-19; natural disasters (droughts and bushfires); earner; profit and loss statement; Held- clause 4 of Schedule 1 does not allow for any adjustment in calculating PAWE; first entitlement period; error in correspondence.
Decision date: 20 April 2021 | Merit Reviewer: Katherine Ruschen
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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