Legal Bulletin No. 3
This bulletin was issued on 19 March 2021
Issued 19 March 2021
Welcome to the third edition of the Personal Injury Commission’s Legal Bulletin. We trust that you find this update useful. Please see here for details about the various legal citations used for the Commission’s decisions.
Workers Compensation non-Presidential Member Decisions
Undisputed injury to the lumbar spine; bariatric surgery sought on the basis that it would reduce the applicant’s pain; Held- bariatric surgery found to be reasonably necessary.
Decision date: 4 March 2021 | Member: Elizabeth Beilby
Psychological claim; worker claimed bullying and harassment from her boss; was then stood down in April 2020 due to Covid; Held- no evidence of bullying; meetings and discussions robust but appropriate in the context of the workers position; the injury was caused by reasonable action proposed to be taken by the employer with respect to retrenchment and the provision of employment benefits; award for the respondent.
Decision date: 4 March 2021 | Member: Deborah Moore
Substantial contributing factor; flight attendant suffered a broken tooth eating on a long haul flight; section 78 notice prepared on a narrow basis and no medical evidence sought until claim listed for hearing; Badawi v Nexon Asia Pacific Pty Limited considered; nature of the worker’s employment meant that she would be expected to eat during a long haul flight; Held- employment was a substantial contributing factor to the injury; award for the applicant.
Decision date: 4 March 2021 | Member: Catherine McDonald
Claim for weekly benefits and medical expenses as a result of injury to lumbar spine on 24 May 2018; 9 September 2018 (deemed) and 23 January 2019 (deemed); dispute as to injury; and whether notice of injury had been given and claim made in accordance with requirements of section 254 and section 261 of the 1998 Act; pre-existing lumbar spine injury; lack of contemporaneous report of injury and medical evidence; weight to be given to medical evidence; “Sense of actual persuasion”; Nguyen v Cosmopolitan Homes; Held- award for the respondent as the applicant had not discharged the onus of proving injury.
Decision date: 5 March 2021 | Member: Kerry Haddock
Claim for surgery to right shoulder from 2 injurious events; both events trivial; no allegation that first event connected with employment; workers condition deteriorated on return to work; no expert evidence as to substantial or main contributing factor; Held- award for the respondent.
Decision date: 5 March 2021 | Member: John Wynyard
Claim under 1987 Act for lump sum compensation; liability accepted for left ankle injury on 16 August 2017; applicant alleged left ankle injury resulted in development of altered gait and developing consequential conditions in low back and left knee; Held- applicant has sustained consequential conditions in his low back and left knee as a result of left ankle injury; lump sum claim remitted to President for referral to Medical Assessor.
Decision date: 5 March 2021 | Member: Michael Perry
Section 60 expenses for surgery for frozen shoulder as a result of an injury; no resolution in expected time frame and treating doctor recommended surgery; insurer declined payment because its independent medical examiner said that the condition should resolve; Held- surgery reasonably necessary; Diab v NRMA and Murphy v Allity management discussed; award for applicant for section 60 expenses of and incidental to surgery.
Decision date: 5 March 2021 | Member: Catherine McDonald
Application for incurred section 60 expenses and lump sum compensation pursuant to section 66 of the 1987 Act; accepted left hip injury; whether consequential right hip condition; applicant’s medicolegal expert initially recorded a history of “injury” to right hip; whether medicolegal experts asked correct question; whether applicant has exhausted his one claim pursuant to section 66(1A); legal professional privilege claimed over documents produced to Commission; Held –the applicant sustained a consequential condition at right hip as a result of left hip injury; original claim never resolved or determined; subsequent claim form constituted an amendment to the original claim; matter remitted to Medical Assessor to assess degree of permanent impairment.
Decision date: 5 March 2021 | Member: Rachel Homan
Claim for weekly benefits and medical expenses as a result of psychological injury; it was conceded that the applicant has no work capacity; section 289A(4) of the 1998 Act; respondent sought leave to rely on novus actus interveniens,including a straight litigation neurosis; Karathanos v Industrial Welding Co Ltd considered; Held- leave granted to the respondent to rely on novus actus interveniens; in light of Kooragang Cement Pty Ltd v Bates, it isdoubtful that Karathanos is still good law; the applicant’s incapacity for work was not the result of novus actus interveniens; Kooragang considered; the effects of the injury continued and the chain of causation was not cut; award for the applicant of weekly benefits and section 60 expenses.
Decision date: 8 March 2021 | Member: Kerry Haddock
Claim for section 60 expenses in relation to proposed cervical spine surgery; injury to cervical spine disputed; whether surgery proposed is reasonably necessary as a result of injury; Held– applicant sustained injury pursuant to section 4(b)(ii); the proposed surgery is reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.
Decision date: 8 March 2021 | Member: Rachel Homan
Section 60 of the 1987 Act; reasonable necessity of proposed L5/S1 laminectomy; discectomy; and posterior lumbar interbody fusion; Diab v NRMA Ltd considered; Held- the proposed surgery is reasonably necessary medical treatment as a result of the injury; award for the applicant.
Decision date: 9 March 2021 | Member: Kerry Haddock
Claim for cost associated with surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and fusion which the applicant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020; Held – the surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and fusion which the applicant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020 was reasonably necessary treatment as a result of work-related injury sustained by the applicant on 18 January 2018.
Decision date: 10 March 2021 | Member: Jacqueline Snell
Suspension of weekly compensation for failure to attend a medical examination; notice of examination confused power to arrange independent medical examination and to assess work capacity; notice did not comply with Part 7 of the Workers Compensation Guidelines; payments purportedly suspended for failure to attend work capacity assessment rather than independent medical examination; Held- that suspension was not warranted and order that payments be reinstated.
Decision date: 10 March 2021 | Member: Catherine McDonald
Workers Compensation Medical Appeal Panel Decisions
Appeal against MAC on grounds in section 327(3)(b),(c) & (d) of the 1998 Act; appellant suffered injury to lumbar spine, left lower extremity and a fractured pelvis when riding track working as a jockey and horse reared and fell on her; submission that AMS erred in failing to properly assess scarring resulting from surgery to treat fractured pelvis and failing to assess at all scarring resulting from the claimed requirement to give birth to a child by caesarean section surgery because of the fractured pelvis; submission that the AMS had not assessed the fractured pelvis correctly in accordance with Table 4.3 of NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. 4th edition – 1 April 2016 (the Guidelines); no concession by respondent employer or finding by the Commission that the necessity to undergo caesarean section surgery was a condition consequent upon the undisputed fracture of the pelvis; application to rely upon additional relevant information rejected as not complying with subsection 327(3)(b) and 328(4) of the 1998 Act; Held- finding that, having regard to the terms of referral of the matter to him, the AMS had not erred in failing to assess scarring from the caesarean section surgery, and had properly assessed the scarring resulting from repair of the fractured pelvis according to the TEMSKI scale; finding that the AMS had properly assessed WPI resulting from the fractured pelvis in accordance with Table 4.3 of the Guidelines; MAC dated 10 November 2020 confirmed.
Decision date: 4 March 2021 | Panel Members: Member Brett Batchelor, Dr Philippa Harvey-Sutton and Dr Drew Dixon | Body system: Pelvis, lumber spine, left lower extremity and scarring-TEMSKI
Worker suffered a shoulder injury washing a truck; accepted consequential condition in cervical spine; worker accepted AMS finding of 10% WPI re left shoulder but disputed assessment in DRE Cervical Category I; application of AMA5 and Guidelines; Held- no error in assessment in DRE Cervical Category I; MAC confirmed.
Decision date: 4 March 2021 | Panel Members: Member Catherine McDonald, Dr John Ashwell and Dr Philippa Harvey- Sutton | Body system: Left upper extremity (shoulder) and cervical spine
Respondent worker suffered an injury of aggravation etc of bilateral cubital tunnel syndrome; AMS said when providing summary of injury that respondent suffered aggravation etc of bilateral carpal tunnel syndrome and overuse syndrome; AMS assessed impairment based on ROM of wrist and sensory and motor deficits of ulnar nerve; appellant submitted that AMS erred by not assessing the condition that had been referred for assessment and by not making deduction under section 323; Held- Appeal Panel found that when MAC considered as a whole, AMS reference in summary of injury to carpal was typographical error, and AMS meant to say cubital; Appeal Panel found no evidence that respondent had pre-existing condition and AMS did not make error by not making a deduction; Appeal Panel found that AMS erred by assessing overused syndrome as that was not a matter referred for assessment; Appeal Panel found that the respondent’s ROM of wrist is not related to bilateral cubital tunnel syndrome; MAC revoked.
Decision date: 4 March 2021 | Panel Members: Member Marshal Douglas, Dr Mark Burns and Dr John Ashwell | Body system: Left upper extremity, right upper extremity and scarring
Worker suffered a lumbar spine injury on a background of developmental conditions; AMS relied on imaging reports but worker said it was a demonstrable error not to look at the films when assessing whether radiculopathy was present; not necessary for AMS to review films but Guidelines required to say whether he did or not; AMS relied on reports of specialist radiologists; Held- criteria for radiculopathy not met; MAC confirmed.
Decision date: 5 March 2021 | Panel Members: Member Catherine Mcdonald, Dr John Ashwell and Dr Gregory McGroder | Body system: Lumbar spine
Respondent worker had been exposed to hazardous occupational noise in employment for around 50 years including 20 years in employment in NZ before being commencing employment in NSW; AMS did not make any deduction under section 323 for previous injury or pre-existing condition or abnormality; appellant submitted AMS erred by not doing so; Held- Appeal Panel agreed finding the evidence with respect to the nature and duration of the occupational noise to which the respondent was exposed in NZ established that the respondent had a damaged and therefore abnormal cochlea at the time he commenced NSW employment that would have caused him hearing loss at that time that contributes to his present hearing loss; AMS erred by not making a deduction under section 323; Appeal Panel revoked MAC and reassessed medical dispute, but used the AMS’s audiometric measurements for the air conduction, rather than his measurements for bone conduction, which the AMS had used to assess respondent’s hearing impairment; Appeal Panel considered air conduction measurements more reliable.
Decision date: 5 March 2021 | Panel Members: Member Marshal Douglas, Dr Brian Williams and Dr Robert Payten | Body system: Hearing
AMS found symptoms and signs for CRPS not present, but assessed WPI on the basis of range of motion restriction, contrary to the terms of the referral; worker re-examined and symptoms and signs found; consideration of the terms of Table 17.1 of the Guidelines; Held- “symptoms” not necessary to be present at examination; Guidelines require a “history”; MAC revoked and 53% WPI substituted for 46% WPI.
Decision date: 5 March 2021 | Panel Members: Member John Wynyard, Dr Philippa Harvey- Sutton and Dr David Crocker | Body system: Right upper extremity and scarring- TEMSKI
Appellant suffered binaural hearing loss where recent employment in New South Wales restricted to one-year noisy employment and prior noisy employment in Queensland extended over 22 years; appellant complained of hearing loss over seven years with a five-year history of tinnitus; AMS applied a deduction pursuant to section 323 of 22/29th based on a linear method of exposure to noisy employment in Queensland as opposed to employment in New South Wales; Held- section 323 applies to hearing loss deemed to have occurred pursuant to section 17; reference made to section 68B(4) of the 1987 Act and observations in Pereira v Siemens Ltd; appellant’s evidence that he had a seven year history of hearing loss was compelling evidence that there was a pre-existing injury prior to the employment in New South Wales; AMS and Appeal Panel satisfied that there was pre-existing injury which contributed employment despite absence of any prior audiogram; the facts of the case warranted a substantial section 323 deduction; Appeal Panel declined to intervene with the deduction made by the AMS as it was within the range of permissible outcomes; Vannini v Worldwide Demolitions Pty Ltd applied; appeal dismissed.
Decision date: 8 March 2021 | Panel Members: Principal Member John Harris, Dr Robert Payten and Dr Joseph Scoppa | Body system: Hearing
Chronic Regional Pain Syndrome (CRPS); appellant complained about the Medical Assessor’s (MA) failure to assess impairment from CRPS and adequacy of reasons; Held- MA provided sufficient and clear reasons why CRPS was not assessed because on his clinical findings on the day of examination there was no rateable impairment; MAC upheld.
Decision date: 8 March 2021 | Panel Members: Member Jane Peacock, Dr James Bodel and Dr Brian Stephenson | Body system: Right upper extremity and left upper extremity
Worker suffered a right inguinal hernia and during surgery the right ilioinguinal nerve was excised; worker developed genitofemoral and ilioinguinal neuralgia; one independent medical examiner also diagnosed iliohypogastric neuralgia though the treating pain specialist and two other IMEs did not; AMS assessed genitofemoral, ilioinguinal and iliohypogastric neuralgia but did not provide reasons for including the latter and provided only generalised examination findings; Held- no evidence of dysaesthesia in iliohypogastric nerve distribution; no error by AMS in assessment in assessing worker in highest class of relevant table; MAC revoked.
Decision date: 8 March 2021 | Panel Members: Member Catherine McDonald, Dr Richard Crane and Dr John Dixon-Hughes | Body system: Right lower extremity, nervous system and scarring
Appellant worker suffered psychiatric injury; submitted AMS’s assessment of his impairment for several of the PIRS categories did not accord with evidence and was contrary to assessment of his IME; Held- Appeal Panel held that AMS was entitled to give pre-eminence to his clinical observations of the appellant and the history he obtained at the time he assessed the appellant; AMS’s classifications of appellant’s impairment in the various PIRS categories was justified by AMS’s findings and history; MAC upheld.
Decision date: 8 March 2021 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychiatric/ psychological disorder
Primary psychological injury; appellant alleged error because the Medical Assessor (MA) excluded impairment from what he assessed as a secondary psychological injury as a result of physical injury being an exacerbation of eczema; Held- Panel found MA erred; the appellant suffered a primary psychological injury as a result of the behaviour of his supervisor; the exacerbation of eczema that he suffered is not a primary physical injury from which a secondary psychological injury has resulted but is a result of his primary psychological injury and any impairment that results from his psychological injury and its sequelae is indivisible; MAC revoked.
Decision date: 8 March 2021 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Julian Parmegiani | Body system: Psychiatric/ psychological disorder
Challenge to the assessments in a number of PIRS categories; Panel accepted the evidence supported the AMS’ assessments for all categories except self-care and personal hygiene; Held- AMS failed to provide adequate reasons and did not appear to have assessed current impairment, rather based his assessment on the appellant’s past situation; MAC revoked.
Decision date: 9 March 2021 | Panel Members: Member Deborah Moore, Dr Patrick Morris and Dr Michael Hong | Body system: Psychiatric/ psychological disorder
Whether AMS misinterpreted the terms of the referral; intention of parties; Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd considered; Held- terms of referral deficient; agreed intention not addressed by appellant; Skates v Hills Industries Ltd considered; parties to issue an amended referral to rectify deficiency after which, MAC confirmed.
Decision date: 10 March 2021 | Panel Members: Member John Wynyard, Dr Roger Pillemer and Dr David Crocker | Body system: Right upper extremity
This publication is for informational purposes only. It should not be relied upon as legal advice and it is not a substitute for a full reading of the decisions. The Commission does not accept liability for the information or use of the information that is provided in this publication.
Subscribeto receive legal bulletins to your inbox.