Legal Bulletin No. 4
This bulletin was issued on 26 March 2021
Issued 26 March 2021
Welcome to the fourth 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: principles applicable to the acceptance or rejection of expert evidence that is not rebutted by contrary expert opinion; Strinic v Singh and Wiki v Atlantis Relocations (NSW) Pty Ltd considered and applied.
Decision date: 18 March 2021 | Before: Deputy President Elizabeth Wood
Workers Compensation non-Presidential Member Decisions
Preliminary point; meaning of “employment” in Schedule 3 to the 1987 Act; worker employed by the respondent but also deriving income from her own business as a clinician one day per week; insurer asserts that income from the worker’s business should not be included in calculation of the PIAWE; insurer submits “employment” in Schedule 3 is limited to contract of service/master and servant relationship; Held- dictionary definitions of “employment” include business or occupation; the term potentially therefore includes income from self-employment; context demonstrates that there is a mathematical relationship between weekly payments following injury and PIAWE; weekly payments are subject to reduction from earnings from all forms of personal exertion therefore inconsistent to calculate the PIAWE without inclusion of such earnings; conclusion is that “employment” in Schedule 3 includes self-employment for the purposes of calculation of the PIAWE; leave to apply with respect to outstanding issue of quantum.
Decision date: 11 March 2021 | Member: William Dalley
Accepted left shoulder injury; neck injury disputed due to lack of objective evidence of radiculopathy; Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd and Davis v Council of the City of Wagga Wagga discussed and applied; Held- award for applicant in respect of the injury to her neck; claim remitted for assessment of whole person impairment.
Decision date: 11 March 2021 | Member: Glenn Capel
Entitlement to lump sum death claim compensation under section 25(1)(a) of the 1987 Act; dependency;TNT Group 4 Pty Ltd v Halioris and Kaur v Thales Underwater Systems Pty Ltd considered and applied; Held- the deceased worker died on 13 October 2020 as a result of injuries arising out of or in the course of his employment with the applicant/employer on 13 October 2020; the first respondent was partly dependent for support on the deceased worker at the date of his death; there were no other persons dependent for support on the deceased worker; the applicant/employer is liable for the payment of lump sum compensation under section 25(1)(a) of the 1987 Act and the payment of interest under section 109 of the 1998 Act.
Decision date: 12 March 2021 | Member: Anthony Scarcella
Claim for section 60 expenses for right total knee replacement; injury to left knee in 2010 accepted; consequential right knee condition disputed; where medicolegal experts not given history recorded in clinical records of an acute onset of symptoms at right knee on a plane; where documented history of poorly controlled neuropathic pain in left knee but no direct reference to altered gait in treating medical evidence; Held – applicant sustained consequential condition at right knee; the surgery was reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.
Decision date: 12 March 2021 | Member: Rachel Homan
Claim for weekly benefits compensation; accepted injury to left hip, left knee, lumbar spine in May 2012; consequential conditions in right knee and right hip; accepted secondary psychological injury due to chronic pain; worker certified fit for pre-injury hours and duties with some modifications from April 2020; meeting in August 2020 to discuss duties; whether worker suffered new psychological injury; if so, whether any injury was result of reasonable action in respect of employment; Held- finding that worker continued to suffer psychological condition as a result of the original injury; incapacity following the meeting was as a result of the original injury; award for the applicant.
Decision date: 12 March 2021 | Member: Jill Toohey
Psychological injury; several hostile events some in course of employment; perception of real events some episodes of exposure; Attorney General’s Department v K applied; predominate cause of injury given several episodes of exposure; Held- promotion issue but respondent’s section 11A case not established; award in favour of the applicant.
Decision date: 12 March 2021 | Member: Philip Young
The applicant sought review of Notice to Reimburse issued under section 145(1) of the 1987 Act; the applicant sought orders that (a) the injured worker was not employed by the applicant at the relevant time or at all and (b) the applicant is not liable for the amount in the Notice to Reimburse; Held – the orders sought by the applicant are refused.
Decision date: 15 March 2021 | Member: Jacqueline Snell
Claim for the cost of medical treatment for injury sustained on a journey, pursuant to section 10(3)(c) of the 1987 Act, after the applicant had undergone treatment for an accepted work injury; application of section 10(3A) of the 1987 Act; Australia and New Zealand Banking Group v Khullar and Mission Australia v Eves considered; Held- there was a real and substantial connection between the applicant’s employment and the accident out of which the injury arose; award for the applicant for the cost of C5/6 anterior cervical discectomy and fusion and incidental costs; no order made for payment of Medicare as Notice has expired.
Decision date: 15 March 2021 | Member: Kerry Haddock
Psychological injury; claim for weekly benefits; whether applicant suffered injury; whether injury caused by reasonable actions of respondent with respect to discipline, performance appraisal and/ or redundancy; capacity – whether worker had capacity, and if so to what extent; Held- the applicant suffered a psychological injury in the course of his employment, to which his employment was the main contributing factor; Thazin-Aye v WorkCover Authority (NSW) and Attorney-General’s Department v K followed; corroboration in contemporaneous medical records is not necessary to establish injury, particularly in the context of a psychological injury: Baker v Southern Metropolitan Cemeteries Trust followed; the applicant’s injury was not wholly or predominantly brought about by the reasonable actions of the respondent; Smith v Roads and Traffic Authority of New South Wales discussed; the absence of medical evidence as to the cause of the applicant’s injury was a factor in determining whether a defence under section 11A was available; Hamad v Q Catering Ltd followed; the applicant was partially incapacitated as a result of his injury during the period claimed; respondent ordered to pay weekly benefits from 5 January 2018 to 2 January 2019.
Decision date: 15 March 2021 | Member: Cameron Burge
Weekly benefits beyond second entitlement period; whether respondent is required to pay benefits between cessation of second entitlement period on 26 December 2017 and the issuing of a Medical Assessment Certificate certifying the degree of whole person impairment is not yet ascertainable; operation of section 39 of the 1987 Act and Clause 28C of the Workers Compensation Regulations 2016; Held- the respondent is not required to pay weekly benefits between the expiration of the second entitlement period and the issuing of the Medical Assessment Certificate; there is a temporal element in Clause 28C which must be satisfied before the Regulation operated to vitiate the operation of section 39 of the 1987 Act; Hochbaum v RSM Building Services Pty Ltd distinguished, Strooisma v Coastwide Fabrication and Erections Pty Ltd followed; award for the respondent.
Decision date: 15 March 2021 | Member: Cameron Burge
Claim for cost of future surgery; no issue applicant suffered work-related aggravation of pre-existing lumbar spine condition; question is whether effects of that aggravation have passed and the requirement for the medically necessary surgery has been brought about by the accepted aggravation or by the underlying, non-work related condition; Held- the requirement for surgery was brought about by the work-related aggravation, the effects of which are ongoing; the respondent is ordered to pay the costs of and incidental to the proposed surgery; Federal Broom Co Pty Ltd v Semlitch discussed.
Decision date: 15 March 2021 | Member: Cameron Burge
Section 66 and 67 claim; psychiatric injury with Police exacerbated by minor event with a later employer; Johnson considered; legal principles advanced to respondent’s medico-legal expert untenable; whether medical dispute existed to refer to AMS; whether reduction to be made for pre-2002 impairment; Held- no medical dispute as applicant accepted respondent’s assessment; attempt to ‘clarify’ respondent expert’s view rejected; 25% WPI assessment for section 66, applicant 45% most extreme case; totals reduced by 10% for pre-2002.
Decision date: 16 March 2021 | Member: John Wynyard
Claim for weekly compensation for alleged back injury caused by nature of the worker’s employment; where worker did not report injury, seek medical treatment, or lose time prior to cessation of his employment for intercurrent medical condition; where respondent’s witnesses corroborate complaints of back pain by the worker while performing heavy work; where near unanimous medical evidence that worker suffered injury; Held- finding of exacerbation of pre-existing degenerative disease; award for worker on the basis of partial incapacity.
Decision date: 16 March 2021 | Member: Paul Sweeney
Worker suffered an injury lifting tables and claimed a short closed period of compensation; claim denied on the basis that she did not suffer injury, relying on CCTV footage and statements which were not relied on; consistent complaints from date of injury and agreement between treating doctors of location of injury; Held- award for weekly compensation and section 60 expenses.
Decision date: 17 March 2021 | Member: Catherine McDonald
Claim for lump sum compensation; accepted right hip injury and consequential left hip condition; disputed consequential right knee condition; where unrelated left knee injury required total knee replacement shortly before first reports of increased right knee symptoms; Murphy v Allity Management Services Pty Ltd considered; Held- applicant sustained consequential right knee condition; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment.
Decision date: 17 March 2021 | Member: Rachel Homan
Workers Compensation Medical Appeal Panel Decisions
Appellant worker alleges AMS should have assessed 1% WPI in respect of scarring; no assessment of scarring in the MAC although appearance of scar commented upon; Held- AMS was correct not to assess scarring as neither “skin” nor “scarring” had been referred to the AMS; referral limited to left upper extremity; reasoning of the Panel in Inghams Enterprises Pty Ltd v Lorraine Hickey discussed and applied; MAC confirmed.
Decision date: 11 March 2021 | Panel Members: Member William Dalley, Dr Brian Noll and Dr Michael McGlynn| Body system: Left upper extremity
Industrial deafness; worker had worked as a boilermaker for nearly 40 years; AMS said that the noise to which he was exposed was neither suitable nor sufficient to include the loss at low frequencies in the assessment – which is an error in the context of the history; Held- AMS made deduction for asymmetrical hearing loss which was less than would require investigation; MAC revoked.
Decision date: 11 March 2021 | Panel Members: Member Catherine McDonald, Dr Henley Harrison and Dr Paul Niall | Body system: Hearing
appellant worker referred for assessment of WPI with respect to “body parts” described in referral as “left upper extremity (left shoulder, carpal tunnel syndrome and trigger finger left 4th and 5th fingers and left wrist)”; appellant’s appeal confined to AMS’s assessment of impairment of left 4th and 5th fingers; AMS did not observe evidence of trigger finger during examination; appellant submitted that AMS was not limited to the pathology described, namely trigger finger and AMS had fallen into error “by reading too narrowly the matters referred for assessment”; Held- Appeal Panel held that AMS was required to give MAC that responded to the matters referred for assessment; MAC upheld.
Decision date: 12 March 2021 | Panel Members: Member Marshal Douglas, Dr Rodger Pillemer and Dr Margaret Gibson | Body system: Left upper extremity
Industrial deafness; the fact that the Medical Assessor’s (MA) approach differs from that of both other experts does not mean he has erred; The MA is required to approach his assessment on an independent basis; Held- the MA clearly explained why his opinion differed; his reasons were not insufficient; considering the nature and duration of the appellant’s occupational noise exposure and the nature and extent of all the hearing losses at 0.5 – 4 kHz, it was open to the MA to find that the losses at 2000 Hz are incompatible with noise induced hearing loss; this is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 Hz; thus in industrial deafness the hearing loss at 2000 Hz would be expected to be significantly less severe than the losses at 3000 Hz and 4000 Hz, and this is not the case in the MA’s audiogram, or in the other prior audiograms dating back to 2014 at which time he had 25 years of occupational noise exposure; MAC upheld.
Decision date: 12 March 2021 | Panel Members: Member Jane Peacock, Dr Brian Williams and Dr Joseph Scoppa | Body system: Hearing
Worker suffered an injury to his cervical spine and left shoulder; AMS determined, based on his observations during the examination, that worker’s difficulty in self-care and activities are a result of the shoulder injury and did not include a component for the impact of the injury on activities of daily living in the assessment of the cervical spine; Held- the AMS gave reasons for his assessment; MAC confirmed.
Decision date: 12 March 2021 | Panel Members: Member Catherine McDonald Dr David Crocker and Dr J Brian Stephenson| Body system: Left upper extremity (shoulder) and cervical spine
Accepted error in the manner in which the assessor calculated the final WPI%; the assessor calculated 15% WPI, deducted one-tenth which he rounded to 13% WPI instead of 14% WPI; appellant submitted no pre-existing condition to warrant a deduction; Held- Panel accepted ample evidence to support the deduction; Vitaz v Westform (NSW) cited; MAC revoked.
Decision date: 12 March 2021 | Panel Members: Member Deborah Moore, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychiatric/ psychological disorder
Industrial deafness; the Medical Assessor (MA) is required to approach his assessment on an independent basis; Held- the MA’s reasons were inadequate however his assessment was correct; although the worker has been exposed to occupational noise for 33 years, the audiogram conducted for the assessment did not support the frequencies below 2000 Hz being affected by loud noise; MAC upheld.
Decision date: 15 March 2021 | Panel Members: Member Jane Peacock, Dr Paul Niall and Dr Henley Harrison| Body system: Hearing
Challenge to the manner in which the Medical Assessor (MA) conducted his assessment; appellant presented in a guarded manner; MA unable to utilise ROM for assessment and used an analogous condition; Held- MA entitled to use analogous condition; no error in the assessment; MAC confirmed.
Decision date: 15 March 2021 | Panel Members: Member Deborah Moore, Dr David Crocker and Dr James Bodel| Body system: Hearing
The appellant submitted that the Medical Assessor (MA) erred in interpreting AMA 5 and the Guidelines as prohibiting the combination of impairment due to subluxation with impairment due to impaired range of motion in the shoulder; Held- the Panel agreed; the MA erred in using Table 16-22 in assessing impairment in the shoulder; Table 16-22 (on page 501) does not apply to the shoulders; MAC revoked.
Decision date: 16 March 2021 | Panel Members: Member Deborah Moore, Dr Brian Noll and Dr Mark Burns| Body system: Left upper extremity (shoulder)
Worker suffered a back injury and a knee injury; fresh evidence; application of the criteria for the assessment of radiculopathy; no major criterion in paragraph 4.27 of the Guidelines; method of assessment of knee injury following partial meniscectomy; re-examination sought to determine if was error; role of AMS in considering assessments by independent medical examiners; State of New South Wales v Kaur considered; Held- MAC confirmed.
Decision date: 17 March 2021 | Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Roger Pillemer| Body system: Left lower extremity, lumbar spine and scarring- TEMSKI
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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