Legal Bulletin No. 6
This bulletin was issued on 9 April 2021
Issued 9 April 2021
Welcome to the sixth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.
Presidential Member Decisions
WORKERS COMPENSATION: section 11A(1) of the 1987 Act; procedural fairness; alleged factual error; application of Northern New South Wales Local Health Network v Heggie; ‘reasonable action.’
Decision date: 26 March 2021 | Before: Acting President Michael Snell
WORKERS COMPENSATION: section 119 of the 1998 Act; suspension of benefits due to alleged non-compliance; application of Workers Compensation Guidelines (Parts 7.1 and 7.7); alleged factual error; alleged procedural unfairness
Decision date: 29 March 2021 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Miscellaneous claim; dispute about whether the applicant is entitled to receive statutory benefits in accordance with Part 3 of the Motor Accident Injuries Act 2017; unregistered golf buggy; capable of registration; did accident occur on a road; make a claim against the Nominal Defendant; section 2.28 requires there to be an established liability on the part of the Nominal Defendant; unregistered vehicle permit; Held- applicant suffered an injury as a result of a motor accident; applicant entitled to receive statutory benefits in accordance with part 3 of the Motor Accident Injuries Act 2017; the nominal Defendant is the relevant insurer; amount of applicants costs assessed in accordance with the Motor Accidents Regulation 2017 is $1,660.16 plus GST; no costs penalty imposed on defendant.
Decision date: 22 March 2021 | Member: Brett Williams
Claims assessment; dispute about the amount of damages the applicant is entitled to; applicant claimed common law damages; agreed that applicant not entitled to compensatory damages for pain and suffering; applicant entitled to recover damages for past and future loss of earnings and impairment to earning capacity; Held- defendant owed a duty of care; defendant breached that duty of care; applicant suffered past loss of earnings and future loss of earnings; applicant at a disadvantage on the open labour market; damages assessed according to sub-section 7.36(1)(b) of the Motor Accident Injuries Act 2017.
Decision date: 23 March 2021 | Member: Margaret Holz
Miscellaneous claims assessment; dispute about whether under section 3.1 of the Motor Accident Injuries Act 2017, the applicant’s injuries are the result of a motor accident; insurer determined the applicant had not suffered injury in the motor accident; whether injuries to the sternum and ribs caused cardiac arrest, or whether cardiac arrest caused motor accident; rib fractures caused by administration of CPR at the accident scene; experienced cardiac episodes in the weeks preceding the motor accident; ambulance report; COPS report; medical evidence; applicant still conscious when assisted from vehicle and then went into cardiac arrest; Held- no close causal connection between the use of the applicant’s motor vehicle and the cardiac event; no evidence that the impact of the applicant’s vehicle caused the sternal haematoma and the rib fractures; payment of legal costs at the regulated maximum in the dispute.
Decision date: 25 March 2021 | Member: Anthony Scarcella
Workers Compensation non-Presidential Member Decisions
Claim for weekly compensation and section 60 expenses in respect of alleged psychological injury; inconsistencies between applicant’s evidence and the histories recorded by her doctors; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal pursuant to section 11A(1); Held- applicant sustained psychological injury as a result of multiple work stressors; defence under section 11A(1) not established; applicant’s PIAWE figure deemed admitted; respondent to pay weekly compensation and section 60 expenses.
Decision date: 25 March 2021 | Member: Rachel Homan
Death benefit compensation; accepted psychological injury resulted in attempted suicide; respondent disputed liability on the basis that the treatment provided to the deceased at hospital was so inexcusably bad as to break the chain of causation between the psychological injury and death, such as to amount to a novus actus interveniens; Mahony v J Kruschich (Demolitions) Pty Ltd and City of Sydney v Estate of Belinda Jane Griffey and Anor (No. 1) considered; Held- not satisfied on the evidence that the treatment at hospital was so inexcusably bad such as to break the chain of causation; award for the applicant.
Decision date: 26 March 2021 | Member: Jane Peacock
Claim for future hip replacement surgery; surgery agreed to be a medical necessity, however, the cause of the need for that surgery at issue; whether the surgery is reasonably necessary as a result of an aggravation to an asymptomatic underlying condition suffered in a fall at work which also caused an accepted lumbar spine injury; Held- the applicant suffered an ongoing aggravation to his right hip in the incident at issue; the effects of that aggravation are ongoing; the aggravation has given rise to the need for the proposed surgery; the proposed surgery is reasonably necessary as a result of the injury; the respondent is to pay the costs of and incidental to the proposed surgery.
Decision date: 26 March 2021 | Member: Cameron Burge
Claim for weekly payments of compensation and order for payment of surgery to left shoulder; notice of injury, delay in making claim for compensation, injury and capacity for work in issue; Nguyen v Cosmopolitan Homes considered; Held– worker sustained injury to his left shoulder in the course of his employment; reasonable cause established for failing to give notice of injury and make claim for compensation in time required by legislation; worker could earn more than his pre-injury average weekly earnings in suitable employment; proposed surgery results from injury and is reasonably necessary.
Decision date: 26 March 2021 | Member: John Isaksen
Applicant commenced proceedings in the Commission for an assessment of permanent impairment by a Medical Assessor for the purposes of a threshold dispute for an offender in custody damages claim pursuant to section 26D of the Civil Liability Act 2002;application by the applicant to admit CCTV footage into evidence for review by the Medical Assessor when there was no dispute as to injury; relevant provisions in the 1998 Act, Personal Injury Commission Rules, SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines, SIRA NSW Guidelines for the Evaluation of Permanent Impairment, and Procedural Direction PIC3 discussed and applied. Held- applicant’s application to admit CCTV footage declined.
Decision date: 26 March 2021 | Member: Glenn Capel
Claim for weekly benefits and medical and related treatment expenses resulting from multiple injuries sustained on 24 March 2018; the respondent placed injury in issue (save for injury to the cervical spine), and incapacity and treatment in issue; Held– the applicant sustained injury to his head (in the nature of a contusion), cervical spine, right shoulder on 24 March 2018 during the course of his employment with the respondent, with the applicant’s employment with the respondent being a substantial contributing factor to injury; as a consequence of these injuries the applicant’s pre-existing psychological injury deteriorated; the applicant had no current capacity for work since 24 March 2018 and the respondent is to make payments of weekly compensation under sections 36 and 47 of the 1987 Act accordingly; the applicant’s PIAWE is to be adjusted in accordance with section 82A of the 1987 Act; the respondent is to receive credit for payments made during the period of the applicant’s entitlement to weekly compensation; the applicant required medical treatment and services as a consequence of the injuries he sustained and the respondent is to pay the applicant’s medical and related treatment in accordance with sections 59 and 60 of the 1987 Act.
Decision date: 29 March 2021 | Member: Jacqueline Snell
Injury to left heel and ankle (plantar fasciitis); consequential condition of lumbar spine; and secondary psychiatric/psychological condition; liability for injuries accepted; claim for weekly benefits from 16 May 2020; applicant claimed to have no work capacity since payments of weekly benefits ceased; Held- the applicant has since 16 May 2020 had no work capacity; he is fit for only sedentary work, as a result of his physical injuries, but his psychiatric/ psychological condition incapacitates him for the type of sedentary work of which he would otherwise be capable.
Decision date: 30 March 2021 | Member: Kerry Haddock
Death benefit; suicide; left and right knee injury led to aggravation of psychological condition; State Transit Authority of New South Wales v Chemler; Koorangang Cement v Bates considered on causation; section 14(3) of 1987 Act; Holdlen Pty Limited v Walsh, Fire & Rescue NSW v Hayman discussed; Held- award for the applicant for death benefit and funeral expenses
Decision date: 31 March 2021 | Member: Catherine McDonald
Mixed psychological and arguably unrelated frontal lobe pathology; parties agree on referral to Medical Assessor but do not agree on referral specialty; consideration of power of a member to refer to medical assessor; Held- the effect of the 1998 Act and Procedural Direction PIC 6 as well as SIRA Guidelines is that a Member has power to remit a matter to the President for referral to a Medical Assessor but where the parties cannot agree on the appropriate assessor or his/her specialty it is the President (not the member) who chooses the assessor.
Decision date: 31 March 2021 | Member: Philip Young
Claim for reimbursement of medical expenses under section 60 of the 1987 Act for purchase of hearing aids in 2009 based on industrial deafness injury of 30 June 2000; claim made in 2019; history of substantial non -1987 Act employment and self-employment before and after 1987 Act employment; Murphy v Allity and Kooragang v Bates discussed; Held- the 2009 hearing aids were reasonably necessary as a result of the 1987 Act noise exposure; respondent ordered to pay the applicant $5000 in reimbursement for his purchase of those hearing aids.
Decision date: 31 March 2021 | Member: Michael Perry
Workers Compensation Medical Appeal Panel Decisions
Skin cancer as a result of sun exposure during employment as a truck driver; no issue with assessments of facial disfigurement and skin; deemed date of injury where claims for further WPI; AMS sought to assess WPI since deemed date of injury with section 323 deduction; Cole v Wenaline Pty Ltd and NSW Fire and Rescue v Clinen discussed; Held- no evidence of impairment before commencement of employment so no section 323 deduction appropriate; MAC revoked.
Decision date: 25 March 2021 | Panel Members: Member Catherine McDonald, Dr John Giles and Dr Tommasino Mastroianni| Body system: Face and skin
Appellant sustained psychological injury in the course of his employment with the respondent as a school teacher; claim for permanent loss compensation pursuant to section 66 of the 1987 Act; Medical Assessor (then an AMS) found Class 2 for employability of the PIRS; total WPI assessed by him 7%; the only ground of appeal was against classification of the appellant worker in Class 2 for employability; appellant claims he should have been placed in Class 3; examination of the evidence in respect of the appellant’s employment since date of injury and current employment with the respondent; Held- the Appeal Panel found that the Medical Assessor made no error in determining Class 2 for employability; MAC issued 17 August 2020 confirmed.
Decision date: 31 March 2021 | Panel Members: Member Brett Batchelor, Dr Nicholas Glozier and Dr Patrick Morris| Body system: Psychiatric/ psychological disorder
Assessment of industrial deafness claim; appellant worker alleged assessment made on basis of incorrect criteria and demonstrable error in respect of the exclusion of hearing loss below 1.5 kHz and the assessment of tinnitus of 2%; Held- appellant worker was exposed to loud noise over a period of 37 years but the severity and duration of exposure would have varied in the different positions; it was open to the AMS, taking into account the audiogram, history of exposure including duration and severity, and the other medical opinions, not to include the losses at 0.5 and 1.0 kHz in his assessment of noise induced hearing loss; agreed that the loading for tinnitus of 2% was appropriate; MAC confirmed.
Decision date: 31 March 2021 | Panel Members: Member Carolyn Rimmer, Dr Paul Niall and Dr Robert Payten| Body system: Hearing
Merit Review Decisions
Dispute about whether for the purposes of section 3.21 of the Motor Accident Injuries Act 2017, the applicant is or has been residing outside Australia; and whether they have suffered a loss of earnings that is likely to be of a permanent nature; serious physical and psychological injuries; interim participant in the Lifetime Care and Support Scheme; Held- applicant has suffered loss of capacity and loss of earnings that is likely to be of a permanent nature; applicant prima facie entitled to weekly payments of statutory benefits provided he meets all statutory requirements; insurer to make decision about applicant’s post- accident earning capacity.
Decision date: 21 March 2021 | Merit Reviewer: Katherine Ruschen
Dispute about the amount of weekly payments of statutory benefits under Schedule 2(1)(a) of the Motor Accident Injuries Act 2017; applicant suffered multiple injuries; liability accepted for the first 26 weeks from the date of accident; applicant disputes the basis upon which the defendant has calculated weekly payments; Held- PAWE should be calculated on gross earnings during the 12 months immediately before the day of the motor accident; termination payments not earnings for PAWE; Job Seeker payments not included; reviewable decision set aside; defendant to make weekly payments at new PAWE rate determined.
Decision date: 21 March 2021 | Merit Reviewer: Brett Williams
Merit Review Panel Decisions
Review panel to consider whether Merit Reviewer erred by not including the sum of approximately $8,000 said to represent non-cash payments for services rendered by the applicant for the purpose of calculating PAWE; Held- merit review decision set aside; directions made; further information is required including accountant’s records; insurer is to recalculate the claimant’s PAWE.
Decision date: 26 March 2021 | Panel Members: Katherine Ruschen, Kriesen Seeneevassen and Elyse White
This publication is for informational purposes only. It should not be relied upon as legal advice and it is not a substitute for a full reading of the decisions. The Commission does not accept liability for the information or use of the information that is provided in this publication.
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