Legal Bulletin No. 8
This bulletin was issued on 23 April 2021
Issued 23 April 2021
Welcome to the 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.
Presidential Member Decision
WORKERS COMPENSATION: finding of ‘injury’ pursuant to section 4(b)(ii) of the 1987 Act; requirement of ‘main contributing factor.’
Decision date: 8 April 2021 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Claims assessment as to a proposed settlement approval under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; liability accepted; non-minor injuries; entitled to treatment and care; claim for lump sum compensation; non-economic loss; whole person impairment of 5%; some limitation of movement; returned to full time work; future loss of earning capacity; ongoing gym-based exercises; top up of his statutory benefits; buffer; Held- proposed settlement approved.
Decision date: 7 April 2021 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Applicant suffered undisputed psychological injury in course of his employment; dispute was whether applicant precluded from the recovery of compensation by reason of section 11A of the 1998 Act; dispute was whether the respondent’s actions in relation to performance appraisal or discipline or dismissal were reasonable; Held- actions of respondent were found to be reasonable; applicant precluded from the recovery of compensation; award for the respondent.
Decision date: 8 April 2021 | Member: Jane Peacock
Death benefit; deceased injured at premises owned by a company of which he was a director when he fell whilst assisting in the installation of replacement equipment; Held- deceased was a volunteer rather than a working director under a contract of service; Riverwood Legion and Community Club v Morse discussed; deceased was not a worker employed by the company which ran the business nor a deemed worker of that company; Malivanek v Ring Group discussed; award for the respondents.
Decision date: 9 April 2021 | Member: Catherine McDonald
Claim under section 60 of the 1987 Act for proposed right knee replacement and associated treatment costs and claim for proposed podiatry services; respondent accepted work related right knee injury and had paid for two prior arthroscopic procedures but disputed these claims; Kooragang Cement Pty Ltd v Bates and Murphy v Allity Management Services Pty Ltd applied; Held- award for the applicant in relation to the claim for right knee replacement as reasonably necessary treatment as a result of the work injury; award for the respondent in relation to the claim for podiatry services.
Decision date: 9 April 2021 | Principal Member: Josephine Bamber
Claim for costs of proposed surgery to flexor carpi radialis (FCR) tendon under section 60 of the 1987 Act; medical issue as to diagnosis of FCR tendinitis or underlying osteoarthritic condition; issue also as to whether proposed surgery was reasonably necessary; Held- proposed surgery was reasonably necessary and as a result of work-related injury; respondent ordered to pay applicants claimed costs of the proposed surgery pursuant to section 60(5) of the 1987 Act.
Decision date: 12 April 2021 | Member: Michael Perry
Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act, including disputed consequential condition of digestive system as a result of ingestion of medication for accepted injuries to left lower extremity; right lower extremity; and right upper extremity; Kumar v Royal Comfort Bedding Pty Ltd and Kooragang Cement Ltd v Bates considered; Held- award for the applicant in respect of consequential condition of the digestive system as a result of injuries to the left lower extremity; right lower extremity; and right upper extremity; matter remitted to the President for referral to Medical Assessor for assessment of permanent impairment.
Decision date: 12 April 2021 | Member: Kerry Haddock
Section 145 recovery; worker, injury, capacity, and liability for medical expenses disputed by the uninsured applicant; Hollis v Vabu Pty Ltd,On Call Interpreters and Translators Agency Pty Ltd v Commissioner for Taxation (No 3),Drive Recruit Pty Ltd v Back, Secretary, Department of Family and Community Services v Bee, Malivanek v Ring Group Pty Ltd, Zuijs v Wirth Bros Pty Ltd, Kooragang Cement Pty Ltd v Bates and Department of Education & Training v Ireland discussed and applied; Held- second respondent was a worker, who sustained a back injury during the course of his employment; medial evidence of the worker’s doctor and a vocational assessment supported an ability to earn in suitable employment; first respondent paid weekly compensation in excess of worker’s entitlements; applicant ordered to reimburse first respondent part of the weekly compensation paid, plus medical expenses.
Decision date: 13 April 2021 | Member: Glenn Capel
Claim for weekly benefits; whether the additional $500 provided to the applicant was a monetary allowance for the purpose of covering the expense of ingredients in the program; even if the date of injury is taken instead as being January 2019, this makes no difference to the result as the provisions of the 1987 Act as to PIAWE apply, and not the provisions of the 2018 Amendment Act; Held- this was a monetary allowance covering the expense of ingredients, and specifically excluded from the calculation of PIAWE under the former section 44G (1) of the 1987 Act.
Decision date: 13 April 2021 | Member: Carolyn Rimmer
Claim for weekly benefits; whether accepted psychological injury was predominantly caused by the reasonable actions of the respondent with respect to performance appraisal and/or discipline; no issue as to capacity or the applicant’s preinjury earnings; section 11A of the 1987 Act discussed; meaning of “wholly or predominantly” discussed; relevant test of causation is a common-sense evaluation of the evidence; Kooragang Cement Pty Ltd v Bates followed; Meaning of “reasonable” discussed; Irwin v The Director-General of Education, Commissioner of Police v Minahan and Melda v Ausbowl Pty Ltd followed; Held- the cause of the applicant’s injury was multi-factorial, and the respondent had not discharged its onus of proof in establishing its actions with respect to discipline and performance appraisal were the predominant cause of it; in any event, the actions relied upon by the respondent were not reasonable in the circumstances; respondent ordered to pay the applicant weekly compensation from 28 July 2020 to date and continuing.
Decision date: 13 April 2021 | Member: Cameron Burge
Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act as a result of undisputed injury to the left upper extremity (shoulder), disputed injury to the cervical spine on the date of injury to the left shoulder, and disputed condition in the cervical spine consequent upon injury to the left shoulder and subsequent surgery thereon; examination of the evidence of post shoulder injury complaint in respect of the cervical spine in the clinical notes of the treating practitioners; Held- finding in accordance with the principles of causation referred to in Kooragang Cement Pty Ltd v Bates and Murray v Shillingsworth that the applicant had suffered injury to the cervical spine on the date of the undisputed injury to the left shoulder, and also a condition in the cervical spine consequent upon injury to the left shoulder and the subsequent surgical treatment of that shoulder injury; matter referred to Medical Assessor for assessment of whole person impairment as a result of injury to the left upper extremity (shoulder) and to the cervical spine, and condition in the cervical spine consequent upon the left shoulder injury.
Decision date: 13 April 2021 | Member: Brett Batchelor
The applicant claims the cost associated with total left hip arthroplasty; the respondent disputes the applicant has sustained work-related left hip injury and the respondent disputes the surgical treatment is reasonably necessary treatment for the applicant’s left hip injury; Held – the applicant sustained injury to his left hip in the course of employment with the respondent; the applicant’s employment with the respondent is the main contributing factor to injury; the total left hip arthroplasty is reasonably necessary treatment for the injury the applicant has sustained to his left hip.
Decision date: 14 April 2021 | Member: Jacqueline Snell
Claim for compensation for medical treatment pursuant to section 60 of the 1987 Act; applicant had accepted work injury to right knee; whether proposed gastric bypass procedure was reasonably necessary as a result of the work injury; Held- the proposed surgery was reasonably necessary as a result of the work injury.
Decision date: 14 April 2021 | Member: Karen Garner
Applicant suffered agreed physical and psychological injuries when struck by car; applicant claimed compensation for permanent impairment; respondent disputed applicant had suffered primary psychological injury; Held- applicant’s psychological injury due to both accident and consequences of physical injury; matter remitted to President to be referred to Medical Assessor/s to assess applicant’s WPI from both physical and psychological injuries.
Decision date: 14 April 2021 | Member: Marshal Douglas
Workers Compensation Medical Appeal Panel Decisions
Claim for further lump sum compensation for injury sustained by the appellant in 1996 when employed by the first respondent as a shearer; the AMS was also asked to provide a total WPI assessment for threshold in respect of the body parts for which the appellant worker had received compensation under the Table of Disabilities; the AMS issued a MAC containing assessments of permanent impairment/loss of use for the body parts in respect of which compensation pursuant to section 66 of the 1987 Act had been previously awarded, and also issued a MAC containing an assessment of WPI in respect of injury to those body parts; In each case, he deducted ¾ of the assessments for impairment resulting from an earlier period of employment of the applicant as a shearer, and 1/8th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996; the appellant’s injury was one in accordance with section 4(b)(ii) of the 1987 Act, the date of which was determined in accordance with section 16 of that Act; Held- the deduction of both the ¾ of the assessments for impairment/loss of use and WPI resulting from the earlier period of employment as a shearer, and the 1/8th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996, was an error on the part of the AMS (now a Medical Assessor); Ozcan v Macarthur Disability Services Ltd and Secretary, New South Department of Education v Johnson relied upon; the Appeal Panel revoked the two MACs issued by the AMS and issued new certificates containing the assessments made by the AMS without the ¾ and 1/8th (total 7/8th) deductions made by him from those assessments.
Decision date: 8 April 2021 | Panel Members: Member Brett Batchelor, Dr Philippa Harvey-Sutton and Dr Brian Noll| Body system: Cervical spine, lumbar spine, right upper extremity, left upper extremity, right lower extremity and left lower extremity
Assessment of whole person impairment (WPI) of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee) as a result of the injury deemed to have occurred on 26 February 2016; Held- Panel concluded that AMS erred by assessing additional body parts which did not form part of the AMS referral; Panel considered it was open to the AMS to reach the view that no deduction should be made pursuant to section 323 in respect of the cervical spine, thoracic spine, lumbar spine and left shoulder; MAC revoked.
Decision date: 9 April 2021 | Panel Members: Member Carolyn Rimmer, Dr John Brian Stephenson and Dr Gregory McGroder| Body system: Cervical spine, thoracic spine, lumbar spine, left upper extremity, right upper extremity, right lower extremity and left lower extremity
The appellant submitted that the Medical Assessor (MA) erred in his manner of assessment of the right foot and ankle; Held- the Panel agreed, but the ultimate WPI % remained the same; error by the MA in neglecting to assess scarring, but parties agreed on 3% WPI prior to the Panel’s assessment; MAC revoked.
Decision date: 13 April 2021 | Panel Members: Member Deborah Moore, Dr James Bodel and Dr David Crocker| Body system: Right lower extremity and scarring
Appeal against finding of 11% WPI urinary and reproductive system by non-lead assessor; 26% WPI found for injury, but 15% (58%) deducted pursuant to section 323; Held- methodology used by Medical Assessor (MA) of assessing pre-injury condition by reference to Table 7.1 of the Guides inappropriate; MA failed to give adequate explanation as to why evidence referred to justified maximum discretionary assessment for class 1 of the Table; evidence relied on did not support conclusions reached; deduction too difficult to determine; section 323(2) applied; MAC revoked and 23% WPI MAC issued.
Decision date: 13 April 2021 | Panel Members: Member John Wynyard, Dr John Dixon-Hughes and Dr Philippa Harvey-Sutton| Body system: Thoracic spine, lumbar spine and urinary and reproductive system
Appeal alleging error in three respects; first, the AMS had confused the mechanism of injury with that of an earlier injury; second, the AMS had failed to assess scarring in accordance with the terms of the referral and third, the AMS had suggested that the report of the independent medical expert (IME) relied upon by the appellant worker was of less weight because the AMS had concluded that the IME was ‘unlikely to be aware of the entire past history’ which was not supported by the facts in evidence; Held- the Panel accepted the first and third allegations of error, but was satisfied those errors had not affected the assessment of impairment by the AMS; the second allegation of error was clearly made out and the Panel determined an additional 1% WPI in respect of scarring, following examination by a medical assessor member of the Panel.
Decision date: 13 April 2021 | Panel Members: Member William Dalley, Dr Gregory McGroder and Dr James Bodel| Body system: Left upper extremity and scarring (TEMSKI)
AMS made an assessment of 21% WPI of the left lower extremity and 1% for scarring under TEMSKI; AMS assessed sensory deficit using figure 17.08 at page 551 of AMA 5 in combination with Table 17.37 at page 552 of AMA 5 and thereafter applying by analogy for the remaining nerves; Held- this methodology was not in accordance with the Guidelines which provided that the lower extremity impairment resulting from sensory deficits and pain should have been assessed using Table 16.10a (page 482) of AMA 5; re-examination and assessment of 36% WPI for the left lower extremity and 1% WPI for scarring; MAC revoked.
Decision date: 14 April 2021 | Panel Members: Member Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon| Body system: Left lower extremity 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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