Legal Bulletin No. 41
This bulletin was issued on 10 December 2021
Issued 10 December 2021
Welcome to the forty-first 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.
Motor Accidents non-Presidential Member Decisions
The reviewable decision is about whether for the purposes of section 6.13(2) of the Motor Accident Injuries Act 2017 (MAI Act) the Claimant’s weekly benefits can be backdated to the date of accident when the Application for Personal Injury Benefits was lodged more than 28 days after the date of accident, and is therefore a miscellaneous assessment matter under Schedule 2(3) (k) of the MAI Act; Held - section 6.13(2) the insurer may not pay weekly benefits prior to the claimant lodging the Application for Personal Injury Benefits on 30 July 2021; the amount of the claimant’s costs in the matter is $nil;Motor Accident Injuries Regulation 2017; Motor Accident Guidelines 2017; motor vehicle accident; statutory benefits; section 6.13(2) of the MAI Act; Personal Injury Commission Regulation 2020; on the papers; miscellaneous assessment; weekly benefits; application for personal injury benefits; claim form; time limit; limitation period 28 days; no exceptions; explanation not applicable.
Decision date: 24 November 2021| Member: Terence O’Riain
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant now 49 years of age; injured in a serious rear end collision; injury to back, neck, full thickness tear of the rotator cuff; right shoulder arthroscopy, surgery, namely rotator cuff repair and debridement of SLAP lesion; unfit for pre-accident work as manufacturing technician; unsuccessful attempt at employment as production operator; ongoing difficulty with overhead activity; shoulder pain; no entitlement to non-economic loss; whole person impairment assessed at 10%; allowance for past economic loss other than period of return to employment; allowance for past loss of superannuation; fit for full time work with restrictions; buffer $200,000 for future loss of earning capacity; allowance for future loss of superannuation benefits; Held – settlement in total sum of $389,724.90 just fair and reasonable and within the range of likely potential damages assessments; settlement approved.
Decision date: 26 November 2021| Member: Susan McTegg
Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act 2017; motorcycle accident with vehicle; contributory negligence; winding unmarked road; steep road and blind corner; learner driver; conflict in evidence; legal costs; exceptional circumstances; claim for fees of Senior Counsel; Held - driver of the vehicle likely more at fault than the claimant.
Decision date: 26 November 2021| Member: Terence Stern
Application for a late claim for an assessment; application made more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; whether a full and satisfactory explanation for delay in making the application; delay due to solicitors “fault”; delay due to COVID-19; solicitor’s office closed; Claimant’s explanation was his reliance upon his solicitor; Held - Claimant has a full and satisfactory explanation for the delay; late claim for assessment may be made more than three years after the date of the motor accident; the Claimant cannot solely rely upon a solicitors alleged negligence as a full and satisfactory explanation for delay; responsibility of a “reasonable person” in the Claimant position to supervise his solicitors conduct of the matter; claimant cannot abrogate all responsibility and rely on a solicitors alleged negligence or inaction as a satisfactory explanation for delay or failure to carry out a statutory duty; decision of Rahman v Al-Maharmeh followed; Smith v Grant distinguished; legal costs awarded, $NIL.
Decision date: 27 November 2021| Member: Ray Plibersek
Motor Accident Injuries Act 2017;claim for damages for motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitation period; damages; reasonable person in claimant’s circumstances; reliant on solicitor’s legal advice; Held – late claim can be made as claimant had a full and satisfactory explanation for delay.
Decision date: 1 December 2021| Member: Terence Stern
Miscellaneous claims assessment; wholly or mostly at fault; section 3.28 of the Motor Accident Injuries Act 2017; driver of motor vehicle in shopping centre car park collided with pole when blinded by sun; Held – not no-fault accident; claimant not wholly at fault; accident combination of sun shining into eyes and negligence of claimant; Podrebersek v Australian Iron and Steel applied; claimant failed to stop or slow her vehicle when knew vision impaired by sun and aware of presence of pole; claimant guilty of contributory negligence; contributory negligence greater than 61%; claimant mostly at fault.
Decision date: 1 December 2021| Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Lumbar spine injury; claim for further fusion surgery; no dispute about injury and prior fusion surgery was paid for by insurer; no dispute that proposed further surgery resulted from injury; dispute that surgery was reasonably necessary; Diab v NRMA applied; it is well settled that surgery does not have to guarantee success to be reasonably necessary; Held - proposed surgery held to be reasonably necessary; award for the worker.
Decision date: 25 November 2021| Member: Jane Peacock
Claim for the cost of surgery in the applicant’s left hip, in respect of a condition asserted by the applicant to be consequent upon undisputed injury to the lumbar spine; the respondent denies consequential condition in the hip; the applicant claims that such condition arose as a result of altered gait because of injury to lumbar spine; Held - finding that the condition in the left hip was consequent upon injury to the lumbar spine; determination that the surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of the condition in the left hip; the respondent ordered to pay for the costs of and incidental to the surgery on the left hip.
Decision date: 25 November 2021| Member: Brett Batchelor
The applicant suffered an accepted primary psychological injury; the issues were the causes of the psychological injury and whether the psychological injury was wholly or predominantly caused by the pleaded section 11A actions; Held - the consistent histories and balance of medical opinion ascribed an incident when the applicant was hit by a trolley and the sequalae as causative of psychological injury; the applicant also perceived this event as hostile; State Transit Authority of NSW v Fritzi Chemler applied; the respondent relied on a medical opinion supporting its section 11A defence; that medical opinion contradicted an earlier opinion by that doctor as to causes and was expressed in bare terms that section 11A actions wholly caused the psychological injury; section 11A defence not established; matter remitted to Medical Assessor.
Decision date: 29 November 2021| Principal Member: John Harris
Claim for lump sum and ongoing weekly compensation in respect of disputed psychological injury; unexplained failure of applicant to appear at teleconference; treating practitioners in respect of previous psychological condition unable to be identified for the purposes of an application for leave to serve Directions for Production; evidence suggesting employment in own business not fully disclosed to medicolegal experts and not addressed in applicant’s evidence; lack of recent medical evidence; Held - Notice to Produce financial records not complied with; matter not ready to proceed to conciliation and arbitration; proceedings dismissed for want of due despatch pursuant to rule 77(a) and section 54(c) of the Personal Injury Commission Act 2020.
Decision date: 29 November 2021| Member: Rachel Homan
Claim for weekly compensation and medical or related treatment expenses resulting from primary psychological injury sustained in the course of employment; defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) with respect to discipline; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; the applicant has an entitlement to weekly compensation payable under section 36 of the 1987 Act between 5 February 2021 and 30 March 2021; the applicant has no entitlement to weekly compensation payable under s 36 of the 1987 Act between 31 March 2021 and 13 April 2021; the applicant has an entitlement to medical and related expenses payable under section 60 of the 1987 Act, being past medical or related treatment particularised in these proceedings at $2,643.70.
Decision date: 29 November 2021| Member: Jacqueline Snell
Claim by worker for compensation pursuant to section 66 for loss of sight of both eyes and for referral of a threshold dispute as a result of injury on 5 April 2001; unanimous evidence of ophthalmic surgeons that worker’s visual system is normal; claim put on the basis that workers spatial difficulties are caused by a traumatic brain injury on 5 April 2001; by a Medical Assessment Certificate dated 18 August 2011 an Approved Medical Specialist had certified that the worker did not suffer a traumatic brain injury; Held – in view of the conflicting evidence, appropriate to refer the matter to a medical assessor for an opinion as to whether the worker’s visual difficulties result from injury.
Decision date: 30 November 2021| Member: Paul Sweeney
Claim for weekly compensation and permanent impairment compensation resulting from injury sustained to lumbar spine and cervical spine in the course of employment; alleged injury to the cervical spine placed in issue; by consent the applicant’s claim for weekly compensation was stood over pending determination of alleged injury of the cervical spine; Held – the applicant did not sustain injury to the cervical spine in the course of his employment as alleged; the applicant has no entitlement for remittal of his claim for assessment of permanent impairment as his claim for permanent impairment compensation does not reach the threshold prescribed by section 66(1) of the Workers Compensation Act 1987; the applicant’s claim for weekly compensation is to be listed for further teleconference in the Commission.
Decision date: 30 November 2021| Member: Jacqueline Snell
Workers Compensation President’s Delegate Decision
Applicant was a storeman who suffered accepted lower back injury and developed secondary psychological condition; work capacity decision issued by insurer identified suitable work as customer service management, catering manager and concierge; whether the applicant was able to work in suitable employment having regard to the section 32(A) of the Workers Compensation Act 1987; Held - weight of medical opinion supported that the applicant was not able to undertake the roles identified in work capacity decision; evidence supported the applicant had no current work capacity; work capacity decision set aside; award for the applicant in relation to payment of weekly benefits compensation.
Decision date: 1 December 2021| President’s Delegate: Belinda Gamble
Motor Accidents Medical Review Panel Decisions
The claimant suffered from widespread pain and an underlying depressive disorder which was aggravated by a motor vehicle accident; this was a claim for the cost of referral to a Cannabis clinic and for medical cannabis; Held – the proposed treatment was not reasonable and necessary; statements were provided to the parties by the Faculty of Pain Medicine and a clinical memorandum of the Royal Australian and New Zealand College of Psychiatrists which did not support medical cannabis as a form of treatment other than for the terminally ill or as part of a clinical trial; there was a lack of effectiveness of medical cannabis in reducing pain and adverse effects include habituation/addiction, sedation and dizziness; the use of medical cannabis often leads to the use of other more addictive cannabis products such containing THC; those products cause adverse event profiles in cannabis users incusing psychotic symptoms and cognitive impairment; original medical assessment confirmed.
Decision date: 1 December 2021 | Panel Members: Principal Member John Harris, Dr David Gorman and Dr Shane Moloney
Workers Compensation Medical Appeal Panel Decisions
The worker suffered an arm injury and claimed permanent impairment based on complex regional pain syndrome (CRPS); the assessment made by the original Medical Assessor (MA) determined that CRPS was not present based on application of Table 16-16 of the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5); Held – whilst there are some common criteria between Table 16.16 of AMA 5 and Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines), there are differences in the language used in the provisions; the MA addressed his examination comments in accordance with the language used in Table 16.16 of AMA 5 and not to the specific terms in Table 17.1 of the fourth edition guidelines; the respondent’s submission that the Wu Shan Liang principle be applied to the MA’s incorrect use of language was rejected; there was nothing akin to lose language in the Medical Assessment Certificate (MAC); the MA incorrectly referred to the criteria in Table 16-16 of AMA 5 and did not relevantly refer to the correct criteria that he was required to apply in Table 17-1 of the fourth edition guidelines; Ballas v Department of Education discussed; the worker was re-examined by a MA on the Appeal Panel and the examination findings satisfied CRPS; MAC revoked.
Decision date: 25 November 2021 | Panel Members: Principal Member John Harris, Dr David Crocker and Dr James Bodel | Body system: Right upper extremity
Q Fever; Medical Assessor (MA) assessed the impairment by reference to an analogous condition of Anaemia at Class 2; appellant submitted Class 3 should have been assessed; the MA is entitled to rely on his clinical findings on the day of examination and his clinical assessment of the available medical evidence that was before him; the MA’s assessment of Class 2 was properly explained and accorded with the criteria in that class; the MA had also made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held - the Appeal Panel considered that there has been an error in the making of this deduction; the MA was referred a physical injury to assess; it is incorrect and in error to make a deduction in respect of a psychological condition from an assessment of the impairment that results from a physical injury; moreover, even if it was permissible, which it is not, there was no available evidence that supported the view that there was any impairment in respect of any pre-existing psychological condition that has contributed to the level of permanent impairment assessed; Medical Assessment Certificate revoked.
Decision date: 30 November 2021 | Panel Members: Member Jane Peacock, Dr Julian Parmegiani and Dr Margaret Gibson | Body system: Haematopoietic system
Appellant challenged the Diagnostic Related Estimate assessment by the Medical Assessor; appellant wrongly applied chapter 4.7 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 when the correct approach was the application of chapter 4.32; Held – Medical Assessment Certificate confirmed.
Decision date: 1 December 2021 | Panel Members: Member Deborah Moore, Dr James Bodel and Dr Mark Burns | Body system: Lumbar spine
Appellant suffered psychiatric injury due to his exposure to numerous distressing and traumatic events in the course of his employment; appellant’s mother had recently died as a result of a homicide for which the appellant’s brother was convicted for manslaughter; Medical Assessor (MA) assessed appellant’s impairment was 9% whole person impairment (WPI); MA considered at last 1/10th of that was to be attributed to the death of appellant’s mother and MA certified appellant’s permanent impairment resulting from injury was 8% WPI; appellant contended MA erred with respect to his assessment of his impairment in self-care and personal hygiene and also erred by reducing assessment due to the effect of the circumstances relating to the death of his mother; Held - Appeal Panel found no error with respect to MA’s assessment of appellant’s impairment in self-care and personal hygiene but did make an error by reducing assessment on account of the effect of the circumstances relating to the death of the appellant’s mother; Medical Assessment Certificate revoked.
Decision date: 1 December 2021 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/psychiatric
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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