Legal Bulletin No. 15
This bulletin was issued on 11 June 2021
Issued 11 June 2021
Welcome to the fifteenth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.
WORKERS COMPENSATION: Application for an extension of time; s 352(4) of the 1998 Act; r 16.2(5) of the Workers Compensation Commission Rules 2011; admission of late documents; application of CHEP Australia Ltd v Strickland; consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission applied; principles applicable to disturbing a primary decision maker’s factual determination; Raulston v Toll Pty Ltd applied; burden of proof; Briginshaw v Briginshaw discussed; a decision should be given on the basis of issues that have been litigated in the course of the trial; Chanaa v Zarour applied; the obligation to notify a matter as disputed; sections 289 and 289A of the 1998 Act; Galstyan & Markaryan t/as Rite Price Hair Care v WorkCover Authority of NSW, Melides v Meat Carter Pty Ltd and Raniere Nominees Pty Ltd v Daley distinguished
Decision date: 3 June 2021 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decision
Claims assessment; whether the proposed settlement should be approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; widow; pedestrian; contributory negligence; turned right without his right indicator light on; no witnesses; no crossing there; treatment only by GP; pain in multiple areas; pre-morbid mental health; anxiety and depression; diagnosis of husband’s cancer four years before; hypersensitive; soft tissue injuries; shop assistant; after the accident walked about 15 minutes until she arrived home; insured not keeping a proper lookout for pedestrians; cash income of $370 per week; proposed settlement of $100,000; significant functional overlay causally related to the accident which is chronic; Held- offer is appropriate and should be approved.
Decision date: 24 May 2021 | Member: Terence Stern
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; merge into lane 2 because there were parked cars; collision between the two vehicles; Insured Driver was travelling at about 80 km/h; crash into a tree and then into a power pole; driving her children to school; Insured Driver kept tailgating her; three passengers; husband and two sons; ambulance; airbags deployed; verbally abused her; COPS report; claimant lost control of her vehicle; excessive speed; engaged in a kind of duel; both vehicles being driven in an aggressive and dangerous manner; Held- each driver had some responsibility for the collision; not satisfied that the insurer has discharged its onus; legal costs.
Decision date: 24 May 2021 | Member: Anthony Scarcella
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; significant injuries; Nominal Defendant; why the claimant’s vehicle left the road; unidentified black 4WD van or SUV swerved suddenly into his lane; son as a front-seat passenger; car that caused the accident did not stop; COPS; witness statement; no black 4WD near the claimant’s car; witness accounts are directly contradictory; claimant’s immediate history provided as to the existence of a black SUV; Held- claimant was not wholly or mostly at fault in the motor accident; costs exceptional circumstances.
Decision date: 27 May 2021 | Member: Maurice Castagnet
Claims assessment; settlement approval under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; non-minor injuries; comminuted fracture of the femoral condyle; total left knee replacement; 86 years of age; $200,000; walking across the road; risk of falls; likely decline acceleration of previously mild Parkinson’s disease; Held- proposed settlement is just, fair and reasonable; approve the settlement.
Decision date: 27 May 2021 | Member: Susan McTegg
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; riding his bicycle on the footpath; bicycle charges close to the road and into oncoming traffic; statement of Police Officer; roundabout; claimant did provide several version of the circumstances; Held- do not accept that the Claimant was sitting on his bicycle stationary; prefer the statements of the insured driver; insured driver negligent; not kept a proper lookout; claimant was not wholly at fault; likely that the claimant was negligent to the extent of 50%.
Decision date: 27 May 2021 | Member: David Ford
Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; passenger; multiple cerebral contusions with right fourth nerve palsy; double vision; Claimant lived at home alone; recommended for Guide Dog assistance; glasses provided; cannot see well enough to prepare or cook her own food; domestic assistance; driver licence was taken away; was a very independent and very busy person; Held- entitled to non-economic loss; permanent impairment to her vision; $50,000 for future travel expenses; $195,000; approved.
Decision date: 27 May 2021 | Member: Belinda Cassidy
Miscellaneous claims assessment; 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; bus struck vehicle; CCTV footage; right hand/U turn; failed to keep a proper lookout; bus continuing at normal speed without slowing down; driving at 30km an hour; claimant failed to give way to oncoming traffic; empty bus; ample time for the insured driver to apply the brakes; disproportionate damage capable of being occasioned; Held- the failure of the insured driver to slow down at all is the substantial cause of the accident; insured driver 65% culpability; legal costs.
Decision date: 27 May 2021 | Member: Bridie Nolan
Workers Compensation non-Presidential Member Decisions
Application by employer for payment of lump sum death benefit as a result of death of worker (the deceased); respondent is deceased’s mother; Held- finding that the respondent was wholly or in part dependent for support on the deceased at the time of his death and that there are no other persons who were wholly or in part dependent for support on the deceased at the time of his death; determination pursuant to section 29(1A) of the 1987 Act that the lump sum death benefit is not apportioned; determination pursuant to section 85A(1)(a) of the 1987 Act that the applicant is to pay to the respondent the lump sum death benefit.
Decision date: 30 April 2021 | Member: Brett Batchelor
Whether, pursuant to section 60(2) of the 1987 Act, travel expenses incurred by the applicant were reasonably necessary; respondent had accepted liability for the medical expense, but for the reasons outlined in its section 78 notice; the option for the applicant to choose his own doctor also accepted; need for treatment established; Held- travel costs associated with the surgery were necessarily and reasonably incurred by the worker.
Decision date: 19 March 2021 | Delegate: Parnel McAdam
The respondent had issued a work capacity decision finding that the applicant had current capacity for employment greater than his certification from his treating doctors, based on their medico-legal assessments; Held- the evidence from the treating doctors was preferred and an Interim Payment Direction was issued ordering the respondent to pay the applicant weekly compensation in the closed period claimed pursuant to sections 36 and 37 of the 1987 Act.
Decision date: 23 March 2021 | Principal Member: Josephine Bamber
Claim for lump sum compensation under section 66 of the 1987 Act; accepted injuries to left upper limb; whether consequential right shoulder and elbow conditions; gaps in treating evidence; lack of clarity and explanation in medicolegal opinion relied on by the applicant; Held- consequential conditions to right shoulder and elbow accepted; matter remitted to President for referral to a Medical Assessor to assess the degree of permanent impairment.
Decision date: 26 May 2021 | Member: Rachel Homan
Consequential condition; Moon v Conmah considered and applied; Held- referral of cervical spine to Medical Assessor where 0% WPI assessed for the cervical spine assessed by worker’s IME.
Decision date: 27 May 2021 | Member: Michael Wright
Application for expedited assessment claims weekly benefits where a work capacity decision is in dispute; Held- applicant has no current work capacity, and has had no current work capacity since 16 January 2021; applicant has not disputed the insurers assessment of PIAWE; no dispute that the second entitlement period applies to the applicant’s entitlement to weekly payments from 16 January 2021; calculation of weekly payments of compensation therefore pursuant to section 37(1) of the 1987 Act.
Decision date: 31 May 2021 | Member: Michael Wright
Claim for permanent impairment compensation payable under section 66 of the 1987 Act resulting from multiple injury sustained as a result of a fall during the course of his employment with the respondent on 26 July 2017, the respondent placed hearing loss injury in issue; Held– the applicant did not sustain hearing loss as a result of the fall and the applicant’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, lumbar spine and left upper extremity is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries.
Decision date: 31 May 2021 | Member: Jacqueline Snell
Whether proposed high tibial osteotomy and ACL reconstruction surgery is reasonably necessary as a result of injury; injury disputed; sections 4(a) and 9A of the 1987 Act considered; Murphy v Allity Management Services Pty Ltd and Sutherland Shire Council v Baltica General Insurance Co Ltd considered regarding material contribution; Kooragang Cement Pty Ltd v Bates and Comcare v Martin regarding common sense approach to causation; Diab v NRMA and Rose v Health Commission (NSW) considered regarding reasonably necessary; Held- found proposed surgery reasonably necessary as a result of the subject injury.
Decision date: 1 June 2021 | Member: Michael Wright
Claim for expenses pursuant to section 60 of the 1987 Act for bilateral knee arthroscopies, and for treatment for anxiety and depression, and pain management; injury to left knee, and condition in left knee consequent upon undisputed injury to right knee, put in issue by the respondent, as was the reasonable necessity of the bilateral knee arthroscopies and treatment for anxiety and depression, and pain management; Held- finding that the applicant suffered injury to the left knee on the date claimed, but that arthroscopic surgery not reasonably necessary as a result of that injury; finding that the applicant did not suffer a condition in the left knee consequent upon the undisputed injury to the right knee; award for the respondent in respect of this claimed condition; finding that the arthroscopic surgery not reasonably necessary as a result of injury to the right knee; finding that the treatment claimed for anxiety and depression, and for pain management, was reasonably necessary as a result of injury to the right knee; respondent ordered to pay for the cost of treatment for anxiety and depression, and for pain management.
Decision date: 1 June 2021 | Member: Brett Batchelor
Permanent impairment compensation claim for accepted cervical spine and right shoulder injuries and disputed consequential left shoulder condition; Moon v Conmah Pty Limited considered regarding sufficiently obvious connection for medical expert between right shoulder injury and left shoulder symptoms; no requirement for section 4 injury for left shoulder; Kooragang Cement Pty Ltd v Bates and Comcare v Martin considered; Held- found left shoulder condition resulted from right shoulder injury; referred to Medical Assessor.
Decision date: 1 June 2021 | Member: Michael Wright
Section 60 claim for costs incurred in left ankle reconstruction; applicant history of left ankle injury but issue re credit because of alleged fall on holidays soon prior to last day worked; GP consultation record against applicant; consideration of all histories given and applicant’s unwillingness to provide confirmation regarding taking of holidays; Held- award for the respondent.
Decision date: 1 June 2021 | Member: Philip Young
Agreed work related psychological injury; claim for lump sum compensation; respondent disputed liability to pay compensation pursuant to section 11A of the 1987 Act; Held- respondent has not discharged its onus of proof to establish the injury was wholly or predominantly as a result of discipline or dismissal; in the alternative, a finding was made that the employer’s conduct was not reasonable.
Decision date: 2 June 2021 | Principal Member: Josephine Bamber
Order sought by worker for the respondent to meet cost of right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction; reference to Rose v Health Commission (NSW) and Diab v NRMA Ltd; Held – surgery is reasonably necessary as a result of the worker’s injury; order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act.
Decision date: 2 June 2021 | Member: John Isaksen
Workers Compensation Medical Appeal Panel Decisions
Whether the Medical Assessor should have assessed the lower extremities (knees) under Table 17-31 of AMA5 which refers to arthritis impairments; Held- that there was no radiological support required to make such an assessment and the requisite radiology measuring cartilage intervals was not available; MAC confirmed.
Decision date: 28 May 2021 | Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr Mark Burns | Body system: Left lower extremity and right lower extremity
Appellant sought to include what was described as ‘fresh evidence’ but was no more than further evidence and was rejected; the Panel accepted some errors by the Medical Assessor (MA) with respect to several PIRS categories; re-examination was arranged; other than in the category of social and recreational activities, the assessment by the MA was confirmed; submitted that a section 323 deduction should have been made on the basis of both a pre-existing condition and surveillance material; Held- MAC revoked.
Decision date: 28 May 2021 | Panel Members: Member Deborah Moore, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychological/ Psychiatric disorder
Appellant employer submitted that the AMS assessed the respondent worker on the basis of incorrect criteria, and that the MAC contains a demonstrable error; five grounds of appeal were advanced by the appellant employer, two of which were put in issue by the respondent; these were the manner in which the AMS assessed the respondent’s range of motion of her right wrist and thumb, and the fact that the AMS made no deduction for pre-existing impairment pursuant to section 323 of the 1998 Act; the respondent nevertheless conceded that there were issues with the MAC and that the appeal should be allowed; she submitted that she should be re-assessed by a member of the Appeal Panel and a further MAC issued in accordance with the findings of that assessor; Held- the respondent was re-assessed by a member of the Appeal Panel, and a further MAC issued in accordance with the findings of that assessor.
Decision date: 1 June 2021| Panel Members: Member Brett Batchelor, Dr Drew Dixon and Dr Richard Crane | Body system: Right upper extremity and left upper extremity
Appellant referred to Medical Assessor (MA) for assessment of cervical spine and both upper extremities; appellant challenged the assessment by the MA of 0% WPI for the cervical spine on the basis that the MA failed to apply the correct criteria in respect of his assessment of the cervical spine; Panel agreed with the MA who found no clinical features to support an assessment of DRE Category II; he looked at the range of motion, and also said that there were no symptoms in the upper extremities that would emanate from the cervical spine; Held- MAC confirmed.
Decision date: 1 June 2021 | Panel Members: Member Deborah Moore, Dr Mark Burns and Dr J Brian Stephenson| Body system: Cervical spine, right upper extremity and left upper extremity
Application of TEMSKI; no dispute that worker suffered 10% WPI as a result of an injury to his shoulder and subsequent surgery; he argued that the AMS should also have allowed 1% under TEMSKI in respect of scars from arthroscopy ports; Held- no error in assessment of 0% for scarring; MAC confirmed.
Decision date: 1 June 2021 | Panel Members: Member Catherine McDonald, Dr David Crocker and Dr J Brian Stephenson| Body system: Left upper extremity and scarring (TEMSKI)
Appeal from assessment of permanent impairment of the right upper extremity; whether Approved Medical Specialist applied clinical judgment in assessing the degree of sensory deficit in the median and ulnar nerves; Held- MAC confirmed.
Decision date: 2 June 2021 | Panel Members: Member R J Perrignon, Dr Drew Dixon and Dr Gregory McGroder | Body system: Right upper extremity
Merit Review Decisions
Whether the treatment and care is reasonable and necessary or relates to the injury under section 3.24(2) of the Motor Accident Injuries Act 2017; dispute is about causation; treatment not causally related to injury sustained; Schedule 2 limits merit reviews to the cost of treatment and care; do not have jurisdiction; Held- make an application for a medical assessment; not a merit review matter; application dismissed as no jurisdiction.
Decision date: 26 May 2021 | Merit Reviewer: Katherine Ruschen
Weekly payment of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; workers compensation benefits ceased; PAWE was $608.37; earner; both employment and self-employment; self-employed martial arts trainer; employment with Sydney Fire Bricks (SFB); thumb injury; self-employed sole trader; Held- not satisfied that the Claimant had entered into an arrangement with SFB before the accident; martial arts business income of $850; reduced to account for the expenses; adopt a figure of 5%; PAWE is $807.50; decision is set aside.
Decision date: 28 May 2021 | Merit Reviewer: Brett Williams
Whether legal costs incurred by the claimant are reasonable and necessary under section 8.10 of the Motor Accident Injuries Act 2017; minor injury and treatment disputes; one application lodged; Assessor conducted two medical assessments; Held- entitled to the payment of his legal costs for each medical assessment matter; not satisfied of the maximum amount allowed; not satisfied of exceptional circumstances; decision set aside; $2000 inclusive of GST.
Decision date: 3 June 2021 | Merit Reviewer: Brett Williams
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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