Legal Bulletin No. 38
This bulletin was issued on 19 November 2021
Issued 19 November 2021
Welcome to the thirty-eighth 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
JUDICIAL REVIEW – Assessment of whole body impairment; extension of time; UCPR 59.10; failure to respond to a substantial and clearly articulated argument; duty to provide reasons; jurisdictional error; error on the face of the record; denial of procedural fairness; decision of Review Panel set aside.
Decision date:15 November 2021 | Before: Harrison AsJ
WORKERS COMPENSATION – acceptance of evidence in the absence of cross-examination; Ali v Nationwide News Pty Ltd applied; alleged factual error; Minister for Immigration and Citizenship v SZMDS, Shellharbour City Council v Rigby, Fox v Percy, Whiteley Muir & Zwanenberg Ltd v Kerr, Northern NSW Local Health Network v Heggie applied.
Decision date: 8 November 2021 | Before: Deputy President Elizabeth Wood
WORKERS COMPENSATION – weekly compensation; work capacity; adequacy of reasons; whether Arbitrator failed to provide adequate reasons; Beale v Government Insurance Office applied; consideration of entirety of the Arbitrator’s reasons; held that the Arbitrator provided adequate reasons.
Decision date: 9 November 2021 | Before: Acting Deputy President Geoffrey Parker SC
WORKERS COMPENSATION – res judicata; Blair v Curran; Lambidis v Commissioner of Police applied.
Decision date: 9 November 2021 | Before: Deputy President Elizabeth Wood
WORKERS COMPENSATION – dismissal of proceedings; section 54 of the Personal Injury Commission Act 2020; rule 77(a) of the Personal Injury Commission Rules 2021; procedural requirements for an appeal pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998; deficient appeal application; non-compliance with delegate of the President’s direction; appellant not taking steps to prosecute its case; whether appeal should be dismissed.
Decision date: 10 November 2021 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Miscellaneous claim, which is a reviewable decision under Schedule 2, clause 3 (i) of the Motor Accident Injuries Act 2017 (the MAI Act) about whether for the purposes of section 6.9 (Compliance with verification requirements—claim for statutory benefits) the claimant has sufficient cause for not complying with the motor accident verification requirements; accident verification requirements; section 6.8 of the MAI Act; Motor Accident Guidelines Edition 5.1; explanation not considered full and satisfactory; full and satisfactory; sufficient cause for non-compliance; sufficient cause; anti-fraud measure; police; police cooperation; event number; police event number; incomplete claim form; decision on the papers; Personal Injury Commission; statutory declaration; Held – the claimant has complied with the accident verification requirements under section 6.9 of the MAI Act.
Decision date: 3 November 2021| Member: Terence O'Riain
Settlement approval; 71 year old female pedestrian travelling against pedestrian don’t walk sign injured in a collision with a car; periprosthetic fracture of left femur and left ankle fracture; admitted to hospital for 28 days; Claimant had significant pre-accident medical history; 20% whole person impairment assessment; liability admitted but 20% contributory negligence agreed and Cheetham v Bau discussed; RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece considered regarding assessment of non-economic loss and claimant’s age; Held - proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 5 November 2021| Member: Alexander Bolton
Workers Compensation non-Presidential Member Decisions
Claim for weekly payments of compensation and medical expenses for an injury to the lumbar spine, shoulders and a psychiatric injury which occurred in New South Wales; worker travelled to towns and cities on the eastern seaboard of Australia in her work for the first respondent; whether worker entitled to benefits under the Workers Compensation Act 1987 (1987 Act) while working and being injured in New South Wales; whether worker’s employment is connected to the state of New South Wales as required by section 9AA of the 1987 Act; reference to Martin v RJ Hibbens Pty Ltd and Workers Compensation Nominal Insurer v O’Donohue; Held – worker not entitled to benefits under 1987 Act merely by being injured while working in New South Wales; worker failed to establish that she usually works or is usually based in New South Wales in her employment with the first respondent; first respondent’s principal place of business in the state of Queensland; awards for the first respondent and second respondent.
Decision date: 4 November 2021| Member: John Isaksen
Claim for weekly compensation and medical treatment expenses 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 predominantly 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 the 1987 Act and the applicant has an entitlement to medical expenses payable under section 60 of the 1987 Act.
Decision date: 9 November 2021| Member: Jacqueline Snell
Psychological injury alleged when applicant transferred to her old post; no alteration in income; transfer necessity explained at meeting on basis that others in department let go, but employer desirous of keeping applicant’s services; applicant had been agitating for fresh contract including increased income, motor vehicle, computer and phone; psychological injury at her transfer admitted; whether applicant hired as a trial position; whether assumptions made by applicant’s medico-legal psychiatrist as to applicant’s past history established on the evidence; respondent eschewed reliance on its own medico-legal expert; section 11A of the Workers Compensation Act 1987 raised; whether injury caused by single event or whether respondent required expert evidence as to other alleged causes; whether procedure adopted by respondent reasonable in circumstances; Held - each case depends on its own facts; Hamad v Q Catering Limited, Shore v Tumbarumba Shire Council and BlueScope Steel Ltd v Markovski considered; applicant’s injury wholly and predominantly caused by transfer; applicant’s expert’s opinion not established as assumptions not proven; applicant’s credit in question; award respondent.
Decision date: 10 November 2021| Member: John Wynyard
Motor Accidents Medical Review Panel Decision
The Claimant was assessed by a medical assessor (MA) in March 2021 at greater than 10% permanent impairment under the Motor Accidents Compensation Act 1999 (MAC Act); the President’s delegate referred the medical assessment to a Review Panel; a preliminary issue arose concerning the admission of material on the Review that was not before the original MA; the documentation included surveillance material that had been served immediately prior to the medical examination and was then rejected; the matter was referred to the Review Panel in October 2021 when the Claimant objected to the material being admitted on the review; Held – the interests of justice favoured the admission of the material; despite the insurer’s delay in providing the material, the evidence was relevant and had been in the Claimant’s possession for eight months; discussion concerning the differences between reviews under the motor accidents legislation and medical appeals in the workers compensation legislation; Sleiman v Gadalla Pty Ltd applied; claimant’s submission that material be rejected because the insurer could file a further review considered to be inconsistent with the objects of the Commission and an inefficient waste of resources; the Claimant’s prejudice by the admission could be cured by allowing time to file evidence in reply.
Decision date: 2 November 2021 | Panel Members: Principal Member John Harris, Dr Rhys Gray and Dr Shane Moloney | Body system: Lumbar spine, cervical spine and right upper extremity
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of 11% whole person impairment (psychological); remitted by the Supreme Court, by agreement of the parties, for decision according to law; whether application of Psychiatric Impairment Rating Scale with respect to Social and recreational activities, Concentration persistence and pace, and Social functioning, was in error; whether lone attendances at a local hotel relevant to assessment of Social and recreational activities; whether pre-existing anxiety condition makes permanent impairment greater than it would otherwise be; whether deduction available from impairment resulting from only one of three diagnosed disorders; Held - Medical Assessment Certificate set aside and replaced.
Decision date: 4 November 2021 | Panel Members: Member R J Perrignon, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological/psychiatric
Appeal from assessment of whole person impairment (psychological); finding by arbitrator that worker had suffered both primary and secondary psychological injury; whether assessor erred in failing to identify permanent impairment resulting from secondary psychological injury and excluding it from assessment; whether a deduction was available for pre-existing Adjustment Disorder; Held – Medical Assessment Certificate set aside and replaced.
Decision date: 5 November 2021 | Panel Members: Member R J Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/psychiatric
Reconsideration; question of whether the Panel had jurisdiction to reconsider the Statement of Reasons dated 21 June 2021 under section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) or section 57 of the Personal Injury Commission Act 2020 in view of the repeal of section 378 of the 1998 Act from 1 March 2021; Panel concluded that proceedings were “pending proceedings” commenced before establishment day and not fully determined before that day; Panel concluded that the pre-establishment proceedings had not been “completed” prior to the establishment date on 1 March 2021 and the Panel had jurisdiction to reconsider any matter that has been dealt with by the Panel, and to rescind, alter or amend any decision previously made or given; Samuel v Sebel Furniture Limited and Martinovic v Workers Compensation Commission of NSW & Ors considered and applied; Held - Panel was satisfied on the basis of all the evidence that its original determination was correct and was made according to law; Panel declined to reconsider its decision.
Decision date: 5 November 2021 | Panel Members: Member Carolyn Rimmer, Dr John Dixon-Hughes and Dr John Garvey | Body system: Lumbar spine, right lower extremity and upper digestive tract
Psychological injury; respondent appealed in respect of the extent of the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; complaint that the Medical Assessor (MA) had not had regard to all of the available evidence; the MA has clearly been cognizant of the expert opinions that the worker had a pre-existing condition; the MA for clearly expressed reasons was not of the view that the condition was one of bipolar disorder; the MA has exercised his clinical judgment on the day of assessment taking into account his mental state examination and he has had due regard to the other evidence that was before him without needing to refer to every piece of evidence; Held - the clinical judgment exercised by the MA on the day of assessment was open to him on the evidence and his reasoning disclosed no error; he does not need to refer to every piece of evidence; his clinical assessment that any pre-existing disorder has not contributed to the level of permanent impairment assessed was open on a review of all of the evidence; Medical Assessment Certificate confirmed.
Decision date: 8 November 2021 | Panel Members: Member Jane Peacock, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological/psychiatric
Worker’s appeal against finding of Medical Assessor (MA) of 10% whole person impairment as a result of psychological injury; grounds relied upon was that there was a demonstrable error contained in the Medical Assessment Certificate (MAC), and that fresh evidence should be admitted; finding that the fresh evidence sought to be relied upon was in fact submissions only as to what the worker had told the MA on examination; Pitsonisv Registrar of the Workers Compensation Commissionrelied upon; the appellant worker took issue with the assessment of the MA in respect of the categories of self-care and personal hygiene,concentration, persistenceand pace, and employability; Held - finding that the MAC did not contain demonstrable error in respect if the assessments for self-care and personal hygiene, and concentration, persistence and pace;finding that the MA had fallen into error in respect of the assessment of employability; Ballas v Department of Education (State of NSW)relied upon;finding that the MA had used his findings in respect of concentration, persistence andpace to determine employability; MAC revoked and new MAC issued.
Decision date: 8 November 2021 | Panel Members: Member Brett Batchelor, Dr Michael Hong and Dr Julian Parmegiani | Body system: Psychological/psychiatric
Injury to left upper extremity, cervical spine and scarring; employer appealed; matter remitted to the Medical Assessor (MA) in accordance with orders made by an arbitrator after a contested hearing; the appellant submitted that the MA was only referred one date of injury namely 26 September 2016 and he has made an assessment across two dates of injury (26 September 2016 and 30 June 2018) in error; while a date of injury of 26 September 2016 was referred as the date on which the assessment of impairment should be based, the referral very clearly comprehended that the assessment of impairment should result from injury on 26 September 2016 and “consequential condition 30 June 2018 to the extent that there are identical pathologies in respect of that rotator cuff tear”; the MA did not expressly explain that he found the impairment to be indivisible between the impairment which resulted from the injury to the rotator cuff on 26 September 2016 and 30 June 2018; however a reading of the Medical Assessment Certificate (MAC) as a whole makes this clear; after having reviewed the evidence the Appeal Panel could discern no error in the approach of the MA; the impairment that has been assessed results from what has been referred to the MA for assessment; the failure to exclude the impairment that results from the pathology which the arbitrator has sought to have excluded, namely the fracture of the workers greater tuberosity, is of no moment because it is medically impossible to say what impairment, if any, would result from a fracture of the greater tuberosity in circumstances such as these where the rotator cuff was damaged to the extent it was and required surgery; any such impairment is subsumed in the overall impairment of the shoulder, such impairment having been assessed on the basis of Range of Motion, in accordance with the criteria in the Guides, after the shoulder surgery undertaken which has been held to result from the work injuries, and is indivisible such that no separate impairment is assessable from the fracture of the greater tuberosity; Held -the Appeal Panel could discern no error and MAC confirmed.
Decision date: 10 November 2021 | Panel Members: Member Jane Peacock, Dr James Bodel and Dr Margaret Gibson | Body system: Left upper extremity, cervical spine and scarring
Motor Accidents Merit Review Decision
The reviewable decision is about whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017 (MAI Act) the Claimant's legal costs and expenses are reasonable and necessary, and is therefore a merit review matter under Schedule 2(1) (aa) of the MAI Act; Motor Accident Injuries Act 2017 (MAI Act); Motor Accident Injuries Regulation 2017; Motor Accident Guidelines 2017; costs; reasonable and necessary costs; motor vehicle accident; statutory benefits; treatment dispute; medical assessment; section 3.27 of the MAI Act; unreasonable denial of liability; costs uplift; regulated costs; Personal Injury Commission Regulation 2020; on the papers; merit review; correct and preferable; Held – the reviewable decision is set aside; no award of costs under section 6.21 of the MAI Act; finding of exceptional circumstances in accordance with section 8.10(4)(b) of the MAI Act in respect of this application and awards $471 inclusive of GST to the claimant for this application.
Decision date: 5 November 2021 | Merit Reviewer: 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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