Legal Bulletin No. 33
This bulletin was issued on 15 October 2021
Issued 15 October 2021
Welcome to the thirty-third 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.
Appeal Case Summaries
WORKERS COMPENSATION – Whether the decision is interlocutory; subsection 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Licul v Corney, P & O Ports Limited v Hawkins , Maricic v Medina Serviced Apartments Pty Limited and Edmund Diab v Salem Naji applied; submissions filed out of time; Bale v Mills applied; admission of fresh evidence on appeal; subsection 352(6) of the 1998 Act; Northern New South Wales Local Health Network v Heggie, CHEP Australia Ltd v Strickland and D’Orta-Ekenaike v Victoria Legal Aid applied; alleged errors of fact; Whiteley Muir & Zwanenberg Ltd v Kerr, Raulston v Toll Pty Ltd and Workers Compensation Nominal Insurer v Hill discussed and applied.
Decision date: 5 October 2021 | Before: Acting Deputy President Elizabeth Wood
WORKERS COMPENSATION – Pre-injury average weekly earnings (PIAWE); section 44C and section 44E of the Workers Compensation Act 1987; calculation of PIAWE in accordance with Enterprise Agreement; whether or not earnings calculated on the basis of ordinary hours worked; calculation of PIAWE for first 52 weeks and calculation of PIAWE after the first 52 weeks.
Decision date: 6 October 2021 | Before: Acting Deputy President Geoffrey Parker SC
WORKERS COMPENSATION – Monetary threshold; section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; pleadings on ‘injury’; section 42(3) of the Personal Injury Commission Act 2020; dealing with disputed expert evidence; Hume v Walton; duty to give reasons.
Decision date: 7 October 2021 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement pursuant to section 6.23 of the MAI Act; claimant self-represented; contributory negligence of 35% assessed by Insurer; no prospects of non-economic loss; settlement of $13,974 for past loss of earnings and small amount for future loss of earnings with remote chance of future surgery causing loss of income for 2 weeks; Held - settlement approved.
Decision date: 31 March 2021| Member: Terrence Broomfield
Approval of settlement; 71 year-old pedestrian at date of accident; left tibial plateau fracture and medial malleolar fracture; significant pre-existing osteoarthritis at date of accident; accident created need for knee replacement surgery; loss of mobility; constant pain and swelling of left leg; difficulty standing, walking and negotiating steps; likely development of post traumatic arthritis; difficulty with domestic tasks; fear of driving; damages limited to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 8 September 2021| Member: Susan McTegg
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; cessation of statutory benefits after 26 weeks as claimant at fault; pedestrian accident on four lane roadway; claimant had crossed three lanes during heavy traffic and stepped into path of insured vehicle; Held – determined that the claimant was at fault and insurer entitled to cease statutory benefits after 26 weeks.
Decision date: 13 September 2021| Member: Elizabeth Medland
Claim for damages under Motor Accident Injuries Act 2017; significant physical injuries following head on collision; liability admitted; multiple surgical procedures to right lower limb; 28% whole person impairment; claimant a contractor painter due to start new project the day after the accident; issues surrounding legitimacy of documents surrounding the project and the disparity between projected earnings and past earnings; Held - claimant and “employer” oral evidence accepted; damages assessed at $962,376.00 plus costs.
Decision date: 20 September 2021| Member: Elizabeth Medland
Workers Compensation non-Presidential Member Decisions
Claim for weekly compensation in respect of disputed psychological injury; whether proper factual foundation for the acceptance of the expert opinions on causation; significant intercurrent personal stressors; factual dispute regarding the nature of relevant workplace interaction; extent of incapacity; Held - the applicant sustained a psychological injury pursuant to section 4(b)(i) of the Workers Compensation Act 1987 (1987 Act); award for weekly compensation pursuant to section 37(1) of the 1987 Act.
Decision date: 1 October 2021| Member: Rachel Homan
Claim for weekly payments and medical expenses for psychological injury; worker claims that he was pressured into taking annual leave, along with other alleged incidents of harassment; reference to Attorney General’s Department v K; whether the worker perceived he was working in an offensive or hostile environment; section 11A defence relied upon by respondent for action taken with respect to provision of employment benefits; Held – worker perceived he was working in an offensive or hostile environment and as a result sustained psychological injury; annual leave is an entitlement and not a benefit, so that section 11A defence not established; award of weekly payments of compensation for no current work capacity for two months and then varying rates of weekly payments of compensation for partial incapacity, as well as award for reasonably necessary medical expenses.
Decision date: 1 October 2021| Member: John Isaksen
Claim for permanent impairment compensation as a result of injury to left ankle, left foot and left knee, and TEMSKI scarring; respondent disputed injury to left knee; lack of contemporaneous medical evidence; applicant relied on independent medical examiner evidence that appears to accept injury to left knee evidenced by fracture of fibula; consideration of Haroun v Rail Corporation New South Wales, Greater Taree City Council v Moore, Jaffarie v Quality Castings Pty Ltd, Castro v State Transit Authority (NSW) and North Coast Area Health Service v Felstead; Held – the applicant sustained an injury to his left knee; assessment of permanent impairment is a matter for Medical Assessor (MA); matter remitted to President for referral to MA for assessment of permanent impairment as a result of injury to left lower extremity (left ankle, left foot and left knee) and TEMSKI scarring.
Decision date: 1 October 2021| Member: Kerry Haddock
Claim for weekly compensation, medical treatment expenses and permanent impairment compensation resulting from primary psychological injury sustained in the course of employment with the respondent; defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline, transfer and/or performance appraisal; Held – the applicant’s psychological injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline, transfer and/or performance appraisal; the applicant has an entitlement to weekly compensation payable under section 36 and section 37 of 1987 Act; the applicant has an entitlement to medical expenses payable under section 60 of the 1987 Act, and the applicant has an entitlement to permanent impairment compensation for 22% whole person impairment payable under section 66 of the 1987 Act.
Decision date: 5 October 2021| Member: Jacqueline Snell
Claim for permanent impairment compensation as result of accepted frank injury to right knee, and as a result of nature and conditions of employment from date of injury to 18 December 2017; claim for nature and conditions disputed; applicant’s independent medical examiner opined that his condition was not a disease; consideration of Guthrie v Spence, Fletcher International Exports Pty Limited v Barrow, Mannie v Bauer Media Pty Ltd and AV v AW; Held - award for the respondent in respect of the claim for nature and conditions of employment; medical dispute remitted to the President for referral to a Medical Assessor.
Decision date: 6 October 2021| Member: Kerry Haddock
Interest on the death benefit payable under section 25 of the Workers Compensation Act 1987; apportionment between surviving spouse and young children agreed; period for which interest is payable; Haidary v Wandella Pet Food and Kaur v Underwater Systems considered; interest ordered from the time the claim was “duly made” being when the insurer had all relevant information; whether interest should be awarded at court rates; Ruby v Marsh considered; Held - interest awarded at 2.1% from date claim “duly made” to date of agreement as to apportionment.
Decision date: 6 October 2021| Member: Catherine McDonald
Workers Compensation Medical Appeal Panel Decisions
The appellant submitted that the Medical Assessor (MA) erred in the manner in which he assessed whole person impairment (WPI) in respect of the right upper extremity; appellant’s submissions no more than mere disagreement with the MA’s assessment which was conducted well over one year after the other medical opinions relied on by both parties; Held - nothing in all the evidence disclosed any error by the MA; Glenn William Parker v Select Civil Pty Limited applied; Medical Assessment Certificate confirmed.
Decision date: 30 September 2021 | Panel Members: Member Deborah Moore, Dr Gregory McGroder and Dr Drew Dixon | Body system: Right upper extremity
The appellant submitted that the Medical Assessor (MA) erred in the manner in his assessment of the visual system; that system must be assessed under AMA 4 which does not allow for any impact on activities of daily living; other submissions regarding errors were either incorrect or not supported by the evidence; Held - the Panel however found that the MA (and both the specialists relied on by the parties) had incorrectly calculated the impairment; when properly calculated, all doctors actually assessed 7% whole person impairment; Medical Assessment Certificate revoked.
Decision date: 1 October 2021 | Panel Members: Member Deborah Moore, Dr Harry Stern and Dr Ian Weschler | Body system: Visual system
Motor Accidents Merit Review Decision
Statutory benefits claim; claim for medical expenses; reasonable and necessary treatment costs; dispute over cost of MRI scan; AMA Fee Lists; State Insurance Regulatory Authority Workers Compensation (Medical Practitioner Fees) Order 2020; expenses for treatment and care; verification of expenses; maximum fees payable by insurers for treatment and care; payment by an insurer of statutory benefits for treatment and care; sections 3.27, 3.30 and 8.9 of the Motor Accident Injuries Act 2017; clause 34 of the Motor Accident Injuries Regulation 2017; Held - the MRI provider has approval from the Insurer to claim the AMA Fee List amount to a maximum of $1,705 for fees payable for treatment and care.
Decision date: 24 September 2021| Merit Reviewer: Ray Plibersek
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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