Legal Bulletin No. 42
This bulletin was issued on 17 December 2021
Issued 17 December 2021
Welcome to the forty-second 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.
The forty-second edition of the Legal Bulletin will be the final edition for 2021. The Commission will resume publication of the Legal Bulletin in January 2022.
Court of Appeal Decision
ADMINISTRATIVE LAW – judicial review; jurisdictional error; extent of functions and powers of tribunal; Workers Compensation Commission medical appeal panel; procedural unfairness; scope of procedural fairness determined by reference to statutory scheme; no opportunity given to address panel on definition of medical condition; medical experts’ function is to form opinion as to medical condition.
Decision date:10 December 2021 | Before: Basten JA, Leeming JA and McCallum JA
Motor Accidents non-Presidential Member Decisions
Assessment of damages and liability under Part 4 of the Motor Accident Injuries Act 2017 (MAI Act); claimant a bicycle rider involved in a collision with insured driver at a “T” intersection in Iluka; whether the claimant had right of way; whether the insured driver was keeping a proper lookout; Held - found that insured driver breached duty of care and no finding of contributory negligence; damages awarded in the amount of $515,416 plus costs; application made for costs penalty under section 6.21 of the MAI Act due to unreasonable denial of liability; costs penalty of 25% applied.
Decision date: 25 November 2021| Member: Elizabeth Medland
Claims assessment matter; claim for damages submitted to insurer on the same day the claim was referred to the Personal Injury Commission under Division 7.6 of the Motor Accident Injuries Act 2017 (MAI Act)for assessment; no particulars or evidence provided when claim was lodged; no offer of settlement made or invitation to engage in settlement discussions; whether the claimant had complied with section 7.32(3) of the MAI Act; meaning of “best endeavours”; whether proceedings should be dismissed; Held - for the purposes of section 7.32(3) of the MAI Act the claimant failed to use her best endeavours to settle the claim before referring it for assessment under Division 7.6 of the MAI Act; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020.
Decision date: 6 December 2021| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Self-represented applicant seeking lump sum compensation when he had already been assessed for the same 2017 injury in 2020; applicant subsequently came to surgery; discussion as to applicant’s remaining options and need for legal advice; Held - matter misconceived and dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.
Decision date: 19 November 2021| Member: John Wynyard
The applicant worker fell on a large concrete apron while in the course of his employment as a stevedore at the respondent’s container terminal at Port Botany; he suffered a serious injury to his right shoulder; the respondent denied liability on the basis that the applicant’s injury was not a substantial contributing factor to the injury sustained; in respect of the examples of matters to be taken into account for the purpose of determining whether the applicant’s employment with the respondent was a substantial contributing factor to injury, the applicant relied in particular on the examples in section 9A(2)(b) and (d) of the Workers Compensation Act 1987 (1987 Act), and on the decision of Arbitrator Peacock in Martine v State of New South Wales (Healthshare NSW) and Marrickville RSL Club Ltd v Mukesh; the respondent relied on what the High court said in Smith v Australian Woollen Mills Ltd; Held - finding that the applicant’s employment was a substantial contributing factor to injury; awards in favour of the applicant for weekly benefits and section 60 of the 1987 Act expenses.
Decision date: 2 December 2021| Member: Brett Batchelor
Credibility of witness; capacity and economic loss; council worker alleging frank injury right hip and leg; respondent attacks absence of complaint and performance under cross examination and late reporting; Held - applicant’s history hampered by applicant’s understanding level; award in favour of the applicant.
Decision date: 2 December 2021| Member: Philip Young
Claim for lump sum compensation following primary psychiatric injury in the course of employment with the respondent from August 2015 to 12 June 2018; liability disputed by respondent on grounds the accepted injury was wholly or predominantly caused by its reasonable actions with respect to performance appraisal in 2018; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal in 2018; matter remitted to President for referral to Medical Assessor to determine whole person impairment.
Decision date: 2 December 2021| Member: Carolyn Rimmer
Claim for the cost of trial of medicinal cannabis; accepted injury to lumbar spine in 2006; applicant had undergone four operations to his lumbar spine; applicant has been treated with multiple forms of surgical and nonsurgical treatment; no dispute that applicant has chronic pain as a result of his injury; whether proposed trial of medicinal cannabis reasonably necessary as a result of his injury; diagnoses of substance use disorder, in remission and active; whether medicinal cannabis effective for chronic pain; Therapeutic Goods Administration approval given or treatment for applicant’s chronic pain; consideration of factors in Diab v NRMA Ltd; Held – finding that proposed trial of conditional cannabis is reasonably necessary treatment as a result of the injury to the applicant’s injury.
Decision date: 2 December 2021| Member: Jill Toohey
Claim for weekly payments of compensation for partial incapacity for injury to the neck and left upper limb for a five-month period in 2019 and the payment of medical expenses; determination of suitable employment and relevant rates of pay for that employment; reference to Wollongong Nursing Home v Dewar; Held – order for weekly payments of compensation for partial incapacity for that five-month period and payment of reasonably necessary medical expenses.
Decision date: 3 December 2021| Member: John Isaksen
Neck injury in 2010; whether surgery recommended in 2021 was reasonably necessary as a result of the injury; adequacy of section 78 of the Workplace Injury Management and Workers Compensation Act 1998 notice; Cannon v The Healthy Snack People discussed; reasonably necessary; Diab v NRMA Limited discussed; Held – award for the applicant for section 60 expenses.
Decision date: 7 December 2021| Member: Catherine McDonald
Claim for weekly benefits; applicant alleges injury by way of bilateral hernias; respondent alleges hernias are not work-related; no issue as to pre-injury earnings or total incapacity for period claimed; Held - on a common-sense evaluation of the causal chain, the hernias are work-related; the applicant made complaints consistent with hernias less than a week after the index incident, and his treating practitioners were, whilst uncertain of the presence of the hernias, concerned they may be present; moreover, there is no evidence to contradict the applicant’s claims as to the nature and conditions of employment which were repetitive and heavy, nor as to his complaints of pain and restriction post-injury; on balance, injury by way of bilateral hernias (together with accepted lumbar spine injury) is established and was causative of the applicant’s incapacity; respondent ordered to pay weekly compensation for the period claimed (24 August 2020 to 6 November 2020).
Decision date: 7 December 2021| Member: Cameron Burge
Worker a bus driver injured during an altercation with a passenger; passenger initiated the incident assaulting the driver on the bus; applicant said fear and anxiety caused him to leave the bus where a further altercation took place on the footpath; liability denied on the basis of sections 4 and 14(2) of the Workers Compensation Act 1987 (1987 Act), and CCTV footage; Held - the applicant remained in the course of his employment during the whole period from the initial assault to the further altercation on the pavement; the applicant’s actions did not amount to serious and wilful misconduct within the meaning of section 14(2) of the 1987 Act; JR and DI Dunn Transport Pty Ltd, Sawle v Macadamia Processing Co Pty Ltd and Whittingham v Ascott Air Conditioning Pty Ltd applied; award for the applicant for weekly benefits and section 60 expenses.
Decision date: 7 December 2021| Member: Deborah Moore
Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to left reverse total shoulder replacement surgery; injury in the nature of aggravation of pre-existing osteoarthritis accepted; whether effects of aggravation ceased in dispute; Murphy v Allity Management Services Pty Ltd applied; Held - proposed surgery is reasonably necessary as a result of injury; award for the applicant.
Decision date: 8 December 2021| Member: Rachel Homan
Claim for cost of future total left knee replacement; both respondents deny liability for surgery, which it is agreed is a medical necessity; Held - on an examination of the evidence on a common-sense basis, the requirement for the surgery is a result of the injury suffered in the course of the applicant’s employment with the first respondent; Kooragang Cement Pty Ltd v Bates followed; any injury suffered by the applicant in the course of his employment with the second respondent did not give rise to a need for the surgery; award for the second respondent against the applicant; first respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 8 December 2021| Member: Cameron Burge
Consideration of whether psychological injury was a primary or secondary injury; Held - finding that the applicant sustained a primary psychological injury and is entitled to be assessed for lump sum compensation (section 65A of the Workers Compensation Act 1987).
Decision date: 8 December 2021| Member: Elizabeth Beilby
Claim for weekly benefits compensation; accepted injuries to the left shoulder, left elbow and left knee; whether the applicant suffered frank injuries to her left wrist, left hand and cervical spine and a consequential condition to her right wrist and right hand; the value of contemporaneous evidence; absence of contemporaneous complaints of left wrist, left hand, right wrist, right hand and cervical spine; the weight given to expert reports; Onassis and Calogeropoulos v Vergottis, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles and Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - award for the respondent in respect of the applicant’s claimed injury to the left wrist and left hand on 10 July 2019; award for the respondent in respect of the applicant’s claimed consequential condition to the right wrist and right hand; award for the respondent in respect of the applicant’s claimed injury to the cervical spine on 10 July 2019; in respect of the accepted injuries to the applicant’s left shoulder, left elbow and left knee, the applicant was fit to return to her pre-injury employment as a claims assessor; award for the respondent in respect of the applicant’s claimed entitlement to weekly benefits compensation under section 37 of the Workers Compensation Act 1987.
Decision date: 8 December 2021| Member: Anthony Scarcella
Accepted left shoulder injury but applicant claims additional lumbar spine and left knee injuries; latter two injuries the subject of previous proceedings with same date and mechanism of injury resulting in consent awards for the respondent concerning injury to the lumbar spine and left knee; issue estoppel discussed; Tomlinson v Ramsey Food Processing Pty Limited, Blair v Curran, Lambidis v Commissioner of Police, Ramsay v Pigram and Port of Melbourne Authority v Anshun Pty Limited discussed; Thompson v George Weston Foods Limited, Geary v UPS Pty Limited and Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; Held - award in favour of the respondent regarding lumbar spine and left knee alleged injuries; award in favour of the applicant in respect of left shoulder injury and matter remitted to the President accordingly.
Decision date: 9 December 2021| Member: Philip Young
Motor Accidents Medical Review Panel Decisions
This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of lumbar spine pain and left arm pain following the motor accident and submitted that he suffered from radiculopathy and/or sustained an annular tear or fissure in the motor accident which meant the injuries were classified as non-minor injuries; subsequent scan evidence otherwise showed a tear of the triangular fibrocartilage in the left wrist; Held- the Panel were not satisfied that the claimant suffered an annular tear or fissure in the motor accident as it was more likely that the pathology was degenerative and generally pre-existing and asymptomatic; the Panel were not satisfied that the claimant had two objective signs of radiculopathy at any time following the motor accident; observations that radiculopathy was established if it occurred at any time and not only during an examination by a Medical Assessor; the tear of the triangular fibrocartilage was caused by the motor accident and was a non-minor injury as defined by section 1.6 of the Motor Accident Injuries Act 2017; this finding was based on the complaint of pain in the left forearm at hospital, the fact that the claimant had a wrist x-ray at hospital, the subsequent MRI scan, the absence of prior wrist symptoms, the claimant’s history and the nature of the injury due to steering wheel kick back; finding made that the claimant suffered a non-minor injury to the left wrist.
Decision date: 25 November 2021 | Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine
The claimant suffered injuries in a motor vehicle accident including an accepted non-minor psychological injury; the dispute related to whether the physical injuries were minor and various treatment; Held -the Panel did not accept that the claimant injured his cervical spine; inconsistent accounts provided as to the onset of cervical spine symptoms, lack of contemporaneous account, clinical note at time of motor accident recorded no neurological symptoms and pre-existing degenerative symptoms considered in forming this view; surgery for cervical spine rejected due to absence of any injury; medical opinions supporting the claim rejected as they were premised on an acceptance of history and complaints; Whisprun Pty v Dixon and Boaten v Dharamdas applied; claimant entitled to referral to pain specialist as chronic back pain caused by motor accident; sufficient that motor accident was a material cause for the need for treatment; AAI Ltd v Phillips discussed; claimant’s physical injuries held to be minor; observation that insurer’s application was misconceived as it had been held that the psychological injury was non-minor and that section 3.28 and section 4.4 of the Motor Accident Injuries Act 2017 only applied if all injuries were minor injuries; original medical assessment revoked.
Decision date: 3 December 2021 | Panel Members: Principal Member John Harris, Dr David McGrath and Dr Alan Home | Injury module: Upper limb, lower limb and spine
Workers Compensation Medical Appeal Panel Decisions
Appeal against 1% award pursuant to Chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 (the Guides) for treatment; Held – Medical Assessor did not refer to the guideline and his uplift where there had only been a mild improvement in the worker’s psychiatric condition clearly mistaken; the wording of Chapter 1.32 of the Guide to be read ejusdem generis; Medical Assessment Certificate revoked.
Decision date: 2 December 2021 | Panel Members: Member John Wynyard, Dr Michael Hong and Professor Nicholas Glozier | Body system: Psychological/psychiatric
Complex regional pain syndrome; remittal from Supreme Court in Windley v Workers Compensation Nominal Insurer; failure to consider Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 was a failure to provide sufficient reasons; Held - Approved Medical Specialist erred in failing to explain in detail why he differed from other reports when his opinion was so different; re-examination; Medical Assessment Certificate revoked.
Decision date: 2 December 2021 | Panel Members: Member Catherine McDonald, Dr David Crocker and Dr Drew Dixon | Body system: Right upper extremity
Medical Assessor (MA) found the appellant was not at maximum medical improvement (MMI); appellant submitted that the determination was not in accordance with 1.15 and 1.16 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 reissued 1 March 2021 and there was a demonstrable error in that there was no evidence to suggest that the appellant had not reached MMI; Held – Panel found no error in the Medical Assessment Certificate nor any application of incorrect criteria.
Decision date: 6 December 2021 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/psychiatric
Worker appeals from determination of Medical Assessor that he did not have Complex Regional Pain Syndrome (CRPS) in accordance with Table 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; fresh evidence received from Dr Lai, a hand surgeon, who assessed whole person impairment on the basis of CRPS; Held - after further medical examination, the panel determined that the appellant did not have clinical signs in all of the categories required for CPRS; only Dr Lai had recorded the presence of the signs in each of the categories in his examination; Medical Assessment Certificate confirmed.
Decision date: 6 December 2021 | Panel Members: Member Paul Sweeney, Dr Roger Pillemer and Dr John Ashwell | Body system: Right upper extremity and left upper extremity
Allegation of demonstrable error and application of incorrect criteria with respect to method of assessment adopted by the Medical Assessor (MA); the appellant worker suffered admitted psychological injury in 2013; she was carrying out suitable duties in 2014 when she had a stroke and then ceased work; the appellant had a heart attack in 2015 and a further stroke in 2019; the strokes resulted in partial aphasia and other physical symptoms; the MA noted difficulties in assessing the appellant as she presented upon examination due to the effects of the strokes; the MA assessed whole person impairment (WPI) by considering evidence of the appellant’s functioning in each of the Psychiatric Impairment Rating Scale areas prior to the first stroke and adopted this as the level of impairment; Held - the ground of appeal, that the MA had failed to assess WPI as at the date of examination, was established; upon reassessment the Panel accepted that evaluation of each of the areas of function prior to the first stroke was appropriate as a first step with consideration then given to whether each of those areas assessed was likely to have continued to the date of examination and by then assessing impairment in the light of State Government Insurance Commission v Oakleyand Secretary, New South Wales Department of Education v Johnson.
Decision date: 7 December 2021 | Panel Members: Member William Dalley, Dr Michael Hong and Professor Nicholas Glozier | 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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