Legal Bulletin No. 25
This bulletin was issued on 20 August 2021
Issued 20 August 2021
Welcome to the twenty-fifth 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. Any legislative updates are provided at the base of the Bulletin.
Supreme Court Decision
ADMINISTRATIVE LAW; Judicial review; Jurisdictional error; Error of law on the face of the record; Remedies; Certiorari; Mandamus.
Decision date: 30 July 2021 | Before: Harrison AsJ
WORKERS COMPENSATION- weight of evidence in the Commission; application of Onesteel Reinforcing Pty Ltd v Sutton; failure to examine all of the material relevant to the particular issue; application of Waterways Authority v Fitzgibbon.
Decision date: 10 August 2021 | Before: Deputy President Michael Snell
Workers Compensation non-Presidential Member Decisions
Psychological injury; claim for weekly compensation; causation; whether applicant suffered a workplace psychological injury, or whether his condition was caused by a pre-existing condition; capacity; the extent of the applicant’s incapacity for employment; Held- the applicant suffered a workplace injury, and had recovered from his previous psychological condition before commencing employment with the respondent; Kooragang Cement Pty Ltd v Bates, Attorney General’s Department v K and State Transit Authority of NSW v Chemler referred to; section 11A; whether the applicant’s injury was caused by the respondent’s reasonable actions with respect to performance appraisal and/ or discipline; held that the applicant’s injury was not so caused, and predated the actions taken by the respondent upon which it relies to base its defence; Smith v Roads and Traffic Authority of NSW discussed; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37.
Decision date: 6 August 2021| Member: Cameron Burge
Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted injury to right knee; whether the applicant sustained consequential condition to his left knee; Held – the applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee).
Decision date: 6 August 2021| Member: Karen Garner
Death claim; determination of dependency and payment of death benefit; Held- no dependants; order for payment of the death benefit and funeral expenses to the estate of the deceased.
Decision date: 6 August 2021| Senior Member: Glenn Capel
Claim for consequential condition; cervical spine; Kooragang Cement Pty Ltd v Bates and Nguyen v Cosmopolitan Homes considered; Held- burden of proof not discharged; award for the respondent.
Decision date: 9 August 2021 | Member: Elizabeth Beilby
Claim for declaration that proposed surgery reasonably necessary and for the cost of a bed and mattress; applicant based claim on failure of alternative treatment but lodged no supporting documents as to that treatment; Held- Applicant failed to satisfy his onus; required to prove reasons for failure of alternative treatment and its potential effectiveness beyond subjective statement; Diab v NRMA applied; mattress and bed not curative apparatus; applicant sleeping in a child’s bed; cost of mattress commonly used by members of the public not compensable; award respondent.
Decision date: 9 August 2021| Member: John Wynyard
Claim for ongoing weekly benefits and compensation pursuant to section 60 of the 1987 Act for the costs of and incidental to thoracic and cervical spine surgeries; nature and conditions of employment; causation; nature of work duties in dispute; different expert opinion as to whether duties capable of causing pathology in the applicant’s spine; Held- the applicant sustained an injury pursuant to section 4(b)(ii) of the 1987 Act; orders made for ongoing weekly compensation and incurred section 60 expenses.
Decision date: 9 August 2021| Member: Rachel Homan
Permanent impairment compensation; terms of referral for medical assessment; applicant suffered accepted injuries to lumbar spine, cervical spine and right upper extremity owing to nature and conditions of employment and involving frank incidents at work; whether applicant’s injuries should be referred for a single assessment, or whether the assessments should be separate; Held- the applicant’s injuries fall within the second category of claim in State Government Insurance Office v Oakley (1990) Aust Torts Rep 81-003 and can therefore be referred for a single assessment, or whether the injuries should be referred for separate assessment, because although there were further injuries resulting from subsequent incidents, the damage sustained in them was greater because of aggravation of the earlier nature and conditions injury to the relevant body parts; Ozcan v Macarthur Disability Services Ltd referred to and followed; Department of Juvenile Justice v Edmed distinguished.
Decision date: 9 August 2021 | Member: Cameron Burge
Permanent impairment compensation; whether applicant suffered consequential condition to left knee as a result of accepted right knee injury; evidence; applicant cross-examined on credit and as to history of left knee issues relating to post-work injury motor accident; Held- applicant suffered a consequential condition to left knee as a result of right knee giving way and causing a fall at home; the applicant’s left knee may have been symptomatic after the unrelated, post-work injury motor accident, however, that knee was plainly functional before the right knee gave way, as evidenced by the applicant having returned to playing competitive sport before the right knee gave way; although it is not a requirement for an injured worker to demonstrate pathological change in an affected body part to establish a consequential condition, in this matter the changes in the applicant’s left knee after the fall caused by the right knee giving way are supportive of the presence of such a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed and followed; the applicant has established on a common-sense basis a causal link between the right knee injury and left knee condition; Kooragang Cement Pty Ltd v Bates; both the right lower extremity (knee) and left lower extremity (knee) are referred for medical assessment.
Decision date: 10 August 2021| Member: Cameron Burge
The worker contracted the COVID-19 virus and died whilst working in New York; the applicant was the widow of the worker; the respondent was part of a group of companies that provided dental technician products and services across the healthcare sector in Australia and the United States; the respondent paid the wages of the Australian employees and issued a monthly management to the company that operated the business and dealt with the public (Stoneglass Australia); A company incorporated in the United States (Stoneglass US) obtained work from universities and sent that work back to Australia for processing; fees were charged by Stoneglass Australia to Stoneglass US for the work performed; the respondent submitted that the virus was contracted in a social setting outside the course of employment and/or the work performed by the worker was for Stoneglass US and not covered by the 1987 Act; Held- the virus was probably contracted during the period of the travel to the US which included passing through customs at San Francisco; this finding was based on the onset of symptoms, the worker’s reluctance to wear masks, the likely exposure to many people during the period of travel and the medical evidence as to the likely incubation period; the company group organised its administration in a manner consistent with the respondent being the employer and there was no suggestion that this arrangement was a sham; Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd applied; the work performed in the United States was not exclusively for the US company because some of the work was in the name of Stoneglass Australia and that company otherwise received a direct benefit from Stoneglass US entering into contracts; there was no evidence that the workers employment was transferred to Stoneglass US and the payslips for the relevant period indicated that the worker was being paid his normal wage by the respondent during this period; the virus was contracted in the course of the employment; Comcare v PVYW applied; based on these findings, the applicant succeeded as the respondent did not contest the presumptions that arose under section 19B of the 1987 Act; applicant entitled to death benefit; quantum of section 60 expenses stood over.
Decision date: 10 August 2021| Principal Member: John Harris
Claim for weekly benefits and medical expenses against two respondents; accepted frank injury to lumbar spine in employ of second respondent; claim of injury to lumbar spine as a result of nature and conditions/aggravation, acceleration, exacerbation or deterioration of disease in employ of first respondent; application of section 4(b)(ii) and section 16 of the 1987 Act; Austin v Director General of Education, Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office and AV v AW applied.
Decision date: 10 August 2021| Member: Kerry Haddock
Workers Compensation Medical Appeal Panel Decisions
Appeal from finding of 22% for psychological injury; Medical Assessor (MA) had previously found no maximum medical improvement; whether deteriorated condition of worker being adequately treated by new psychiatrist; whether sufficient time elapsed for treatment since last MA assessment; possibility of improvement with treatment; Held- new guideline for Maximum Medical Improvement considered; thorough review of case by MA; worker significantly psychologically injured; MAC confirmed.
Decision date: 5 August 2021| Panel Members: Member John Wynyard, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological/ psychiatric disorder
Appeal from assessment of whole person impairment (right shoulder, cervical spine, lumbar spine) as a result of injury to the left shoulder; whether assessor erred in finding that the conditions of the body parts referred did not result from injury; to provide reasons for his assessment of the cervical spine; whether he erred in calculating a 3% whole person impairment (lumbar spine); whether he erred in deducting one half and three-quarters for pre-existing conditions of the lumbar spine and left knee respectively; whether he failed to take account of radiological evidence and range of motion in assessing the left ankle; appellant referred for examination of the cervical spine; Held- MAC revoked and replacement MAC issued.
Decision date: 6 August 2021 | Panel Members: Member Richard Perrignon, Dr Richard Crane and Dr Robin Fitzsimons| Body system: Left upper extremity, right upper extremity, cervical spine and lumbar spine
Assessment of Whole Person Impairment from psychiatric injury; appellant employer submitted that Medical Assessor made assessment based on incorrect criteria and MAC contained a demonstrable error with respect to the PIRS categories of social and recreational activities and social functioning; appellant submitted Medical Assessor failed to identify the reasons for the respondent’s reduced social activities and gave no consideration to whether the restricted social activity was due to COVID; Held- Appeal Panel considered that Medical Assessor sufficiently explained in the MAC his reasons for his assessment and that it was apparent from the MAC that the Medical Assessor considered the respondent’s impairment was due to the injury and no other cause; MAC confirmed.
Decision date: 9 August 2021 | Panel Members: Member Marshal Douglas, Dr Brian Parsonage and Dr Julian Parmegiani| Body system: Psychological/ psychiatric disorder
Injury to lumbar spine, right upper extremity and right lower extremity; employer appealed; no complaint on appeal about overall level of permanent impairment assessed for each body part; complaint on appeal was the Medical Assessor’s (MA) failure to make a deduction under section 323 to account for any pre-existing injury, abnormality or condition; a deduction under section 323 can only be made if the pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed; here the available evidence was that the pre-existing injury, abnormality or condition in respect of each body part contributed to the level of permanent impairment assessed and must be taken into account; Held- as the extent of the deduction was too difficult or costly to determine a one-tenth deduction was applied; MAC revoked.
Decision date: 9 August 2021 | Panel Members: Member Jane Peacock, Dr James Bodel and Dr Mark Burns| Body system: Right upper extremity, lumbar spine, right lower extremity
Appeal against assessment of 9% WPI for cervical spine (5%) and right upper extremity (4%); appeal confined to the back; whether failure by Medical Assessor (MA) to award any WPI for the worker’s restrictions in activities of daily living an error; whether a cervical DRE III rating should have been assessed; Held- appellant failed to address the criteria set out at 4.27 of the Guides; unable to satisfy radiculopathy test therein; DRE II rating confirmed; MA erred in diagnosis of ulnar nerve injury as being responsible for worker’s restriction in the activities of daily living; failed to adequately give reasons; differential diagnosis of C7/C8 involvement from the cervical injury as demonstrated on imaging (albeit of some vintage) preferred; discussion of discretionary nature of 4.33 – 4.35 of the Guides; additional 2% added to cervical spine rating of 5%; MAC revoked and 11% WPI substituted.
Decision date: 10 August 2021| Panel Members: Member John Wynyard, Dr James Bodel and Dr Philippa Harvey-Sutton| Body system: Cervical spine, thoracic spine and right upper extremity
Worker appeals from determination of Medical Assessor (MA) that she fell within class 2 for the PIRS categories of Social functioning and Employability; Held- the appellant had not established demonstrable error or incorrect criteria; ample evidence to support determination of MA; differing outcomes in the assignment of classes merely a difference of opinion.
Decision date: 11 August 2021 | Panel Members: Member Paul Sweeney, Dr Julian Parmegiani and Dr Douglas Andrews| Body system: Psychological/ psychiatric disorder
Motor Accidents Merit Review Decision
Merit Review; dispute about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accidents Injuries Act 2017; claimant is a self-employed owner operator of a taxi; PAWE calculated based on the claimant’s gross earnings being their income net of all business expenses but before tax; claimant lodged an internal review application requesting that their gross earnings be their total income without any adjustments made for business expenses; claimant self-represented; meaning of term ‘gross earnings’ discussed; Held- the reviewable decision is varied; insurer to pay the claimant statutory benefits based on PAWE derived from gross earnings.
Decision date: 13 August 2021| Merit Reviewer: Kriesen Seeneevassen
Motor Accidents Merit Review Panel Decision
Statutory benefits; pre-accident weekly earnings; earner; earnings; earnings as an earner; panel review; majority decision; minority reasons; Personal Injury Commission Rule 128(6); Covid 19; Transports Accident Act 1986 (Vic); Workers Compensation; Regulated Costs; Held- merit review decision is confirmed; claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017.
Decision date: 9 August 2021| Merit Review Panel: Katherine Ruschen, Brett Williams and Terence O’Riain
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 way the information is used.
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