Legal Bulletin No. 9
This bulletin was issued on 30 April 2021
Issued 30 April 2021
Welcome to the ninth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions.
Appeal Decision Summaries
Workers Compensation non-Presidential Member Decisions
Accepted two injuries to left knee; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes applied; the applicant has made only “one claim”, namely, a claim for permanent impairment, which impairment has resulted from the two events identified; issue in dispute a consequential injury to the right hip; notwithstanding some other medical issues, evidence supported a finding of a consequential injury to the right hip, due to the left knee injuries and subsequent knee replacement surgery; Held- permanent impairment dispute in respect of the left lower extremity (knee) and the right lower extremity (hip) remitted for referral to a Medical Assessor.
Decision date: 15 April 2021 | Member: Deborah Moore
Accepted claim for injury to right ankle and foot; claim to have also sustained injury to neck, back, right shoulder, right hand, left wrist and left hand; claim for permanent impairment compensation pursuant to section 66 of the 1987 Act in respect of 13% whole person impairment as a result of injury to cervical spine, right upper extremity and right lower extremity; claim for general order for medical expenses pursuant to section 60 of the 1987 Act; lack of contemporaneous medical evidence, claimed to be due to two general practitioners ignoring the applicant’s complaints; Davis v Council of the City of Wagga Wagga and Nguyen v Cosmopolitan Homes considered; Held- no sense of actual persuasion that the applicant sustained injuries other than to his right ankle and foot; award for the respondent with respect to the claim for injury to the neck, back, right shoulder, right hand, left wrist and left hand; award for applicant for medical expenses with respect to injury to right ankle and foot; assessment of whole person impairment with respect to injury to right lower extremity is not greater than 10%; Medical dispute may not be referred to Medical Assessor.
Decision date: 16 April 2021 | Member: Kerry Haddock
Lump sum claim; agreed right upper extremity injury; disputed claims in relation to Complex Regional Pain Syndrome and consequential condition in left upper extremity due to overuse; Held- applied Elsworthy v Forgacs Engineering Pty Ltd that whether there is a rateable diagnosis of Complex Regional Pain Syndrome is a matter for a Medical Assessor; right upper extremity injury and Complex Regional Pain Syndrome (affecting the right upper extremity) remitted to the President for referral to a Medical Assessor; award for the respondent in relation to alleged consequential condition in the left upper extremity on the basis that the onus of proof was not discharged; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd applied.
Decision date: 16 April 2021 | Principal Member: Josephine Bamber
Death claim; written submissions filed by parties; Warilla Timber and Hardware Pty Ltd v Newton, Albury Real Estate Pty Ltd v Rouse, TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held- determination of dependency, apportionment of death benefit amongst dependants and order for interest.
Decision date: 16 April 2021 | Member: Glenn Capel
Permanent impairment compensation; lumbar injury accepted, alleged consequential conditions to left hip and right shoulder disputed; causation; applicant bears onus of proving common-sense causal nexus between original injury and alleged consequential condition; Kooragang Cement Pty Ltd v Bates followed; the test for the presence of a consequential condition is less stringent than that necessary to prove the existence of an injury as that term is defined in section 4 of the 1987 Act; an important element in establishing a consequential condition is the presence of symptomology in an affected body part which can be linked back to the original injury; Kumar v Royal Comfort Bedding Pty Ltd discussed and followed; Held- the applicant made no complaint of symptoms in her left hip to any doctor, treating or medicolegal; the evidence does not establish the presence of a condition in the left hip, let alone one linked to the accepted injury; the medical evidence does not establish a causal link between the applicant developing adhesive capsulitis in her right shoulder and the original lumbar injury and subsequent surgery; applicant’s lumbar spine injury referred for medical assessment; award for the respondent on the claims for subsequent conditions to the left hip and right shoulder.
Decision date: 19 April 2021 | Member: Cameron Burge
Claim for permanent impairment compensation for primary psychological injury, where injury not disputed; section 11A(1) defence raised in respect to transfer, demotion or promotion; Northern NSW Local Health Network v Heggie, Manly Pacific International Hotel Pty Ltd v Doyle, Mani v Secretary, Department of Education and Kooragang Cement Pty Ltd v Bates considered and applied; Held- the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion within the meaning of section 11A(1) of the 1987 Act; the matter remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act.
Decision date: 19 April 2021 | Member: Anthony Scarcella
Application for Admission of Late Documents by respondent employer, being video surveillance of the applicant worker and report thereon (the late documents), to be referred to the Approved Medical Specialist (now Medical Assessor) after his examination of the applicant worker had occurred but before issue of the medical assessment certificate (MAC); consideration of the time at which the late documents were served on the applicant (three days before the examination of the applicant by the AMS) and when they were lodged with the Commission; consideration if “exceptional circumstances” were made out by the respondent pursuant to [2.26] of the Workers Compensation Medical Dispute Guidelines and if it was in the interests of justice that the late documents be received into evidence for referral to the AMS; Held- that in the circumstances of the case and having regard to evidence in the proceedings, exceptional circumstances not made out and that it was not in the interests of justice that the late documents be admitted into evidence for referral to the AMS for his consideration prior to issue of the MAC; the AMS directed to issue the MAC.
Decision date: 20 April 2021 | Member: Brett Batchelor
Claim for weekly payments of compensation, medical expenses and permanent impairment due to psychological injury; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer, promotion, demotion, performance appraisal and provision of employment benefits; reference to Hamad v Q Catering P/L; Held – section 11A defence not established by medical evidence relied upon by respondent and not being able to establish actions with respect to transfer and promotion were reasonable; award of weekly payments of compensation for periods of no current work capacity and partial incapacity for work, medical expenses and referral to Medical Assessor for assessment of permanent impairment.
Decision date: 21 April 2021 | Member: John Isaksen
Claim for reasonably necessary expenses of left total knee replacement; accepted injury to the right knee, hip and lumbar spine; whether worker developed a consequential condition in his left knee; antalgic gait; overuse of left knee; Held- worker developed antalgic gait; overused left knee; finding that the worker developed a consequential condition as a result of his accepted injury; accepted injury materially contributed to the need for the left total knee replacement; respondent to pay the applicant’s reasonably necessary costs of the proposed treatment.
Decision date: 21 April 2021 | Member: Jill Toohey
Workers Compensation Medical Appeal Panel Decisions
The appellant submitted that the Medical Assessor (MA) erred in determining that pathology at the T7 level was unrelated to the original injury in September 2003, and did not consider the X-ray of 1 July 2005; three Medical Members of the Appeal Panel reviewed the radiological film that had been performed on 1 July 2005 to determine the degree of vertebral body compression within the thoracic spine; Held- upon inspection, the doctors agreed that there was clear evidence that there had been a compression fracture with anterior wedging of the vertebral body of T8; it was also considered that there was the appearance of some degree of compression to a lesser degree of T7; the overall impairment rating was thus increased; MAC revoked.
Decision date: 15 April 2021 | Panel Members: Member Deborah Moore, Dr David Crocker and Dr Gregory McGroder| Body system: Thoracic spine and lumbar spine
The Appellant suffered injury to the left leg fracturing her patellar and aggravating and accelerating underlying degenerative changes which eventually required total knee replacement; the AMS assessed 20% for the left lower extremity and 2% for the scarring and made a 10% deduction pursuant to section 323; the only issue on appeal was the extent of the section 323 deduction for the left lower extremity; Held- when read as a whole and with regard to the reasons given for rejecting other medical opinions, the AMS explained why the statutory one-tenth deduction under section 323(2) was not at odds with the accepted evidence; Marina Pitsonis v Registrar of the Workers Compensation Commission applied; section 323(2) only applied to evidence accepted or preferred by the AMS; by reason of section 323(3), evidence rejected by the AMS does not fall into that category; the AMS provided various reasons why the statutory deduction applied; the fact that the worker had prior surgery and degenerative changes in the knee did not make those reasons wrong; further, a difference of opinion did not constitute demonstrable error; Vannini v Worldwide Demolitions Pty Ltd applied; MAC confirmed.
Decision date: 15 April 2021 | Panel Members: Principal Member John Harris, Dr David Crocker and Dr John Brian Stephenson| Body system: Left lower extremity and scarring (TEMSKI)
Appeal against finding of 10% WPI re injury to the left shoulder, elbow and scarring; fresh evidence tendered from medico-legal expert and appellant; Held- applying Lukacevic v Coates Hire Operations Pty Limited, appellant’s statement rejected as lacking plausibility and support; medico-legal report rejected applying Topic v Department of Ageing, Disability and Home Care, on policy grounds; appellant’s appeal mistakenly alleged error related to the Medical Assessor’s finding regarding a normal right shoulder; presumption of regularity applied to measurements of left shoulder and elbow; Jones v Registrar Workers Compensation Commission and Bojko v ICM Property Service Pty Ltd applied; consideration of Chapter 2.18 of the Guides re epicondylitis where elbow impairment measured greater than provided in the guideline; finding of nil impairment for scarring adequately explained; MAC confirmed.
Decision date: 16 April 2021 | Panel Members: Member John Wynyard, Dr Brian Noll and Dr James Bodel| Body system: Left upper extremity and scarring (TEMSKI)
Section 323 deduction; worker suffered a back injury in 1989 and underwent surgery; contemporaneous medical reports show ongoing complaints of back pain and radiculopathy; further injury in 1999 and later disc replacement surgery; AMS deducted one-third under section 323 because the previous injury did contribute to the impairment; Cole v Wenaline Pty Limited and Ryder v Sundance Bakehouse considered; Held- MAC confirmed.
Decision date: 16 April 2021 | Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr John Brian Stephenson| Body system: Lumbar spine
Appeal against finding of 14% WPI to left shoulder and cervical spine; Held- six grounds of appeal rejected as without merit; challenge to Medical Assessor’s qualifications specious; allegation that Medical Assessor failed to give reasons for finding radiculopathy without substance; challenge to reasons for assessing lumbar spine totally without merit; challenge regarding statement of Medical Assessor not accompanied by submissions and accordingly meaningless; alleged error re hand dominance irrelevant and difficult to comprehend; MAC confirmed.
Decision date: 19 April 2021 | Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr James Bodel| Body system: Cervical spine and left upper extremity
Injury to right knee after which worker returned to work on crutches; injured left knee in a fall and suffered consequential conditions in lumbar spine and left shoulder; AMS purported to determine that the only injury was to the right knee and assessed only 1% WPI; parties had agreed on injuries and consequential conditions and the task of the AMS was to assess any permanent impairment; re-examination undertaken; Held- MAC revoked.
Decision date: 19 April 2021 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni and Dr Roger Pillemer| Body system: Lumbar spine, right lower extremity, left lower extremity and left upper extremity
AMS assessed 12% WPI for the lumbar spine and deducted one-fifth for pre-existing condition; on examination AMS found muscle wasting and loss of sensation referrable to L5/S1 dermatome but made no reference to paragraph 27 of chapter 5 of the Guidelines; Held- failure to provide reasons as to why the two criteria found on clinical examination did not satisfy the requirements for radiculopathy as set out in clause 4.27 was a demonstrable error; MAC revoked.
Decision date: 19 April 2021 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni and Dr Roger Pillemer| Body system: Lumbar spine
Allegation of error in respect of alleged failure to give adequate reasons for assessment of WPI based on range of motion and failure to give adequate reasons for section 323 deduction of 25%; Medical assessor had considered range of motion and diagnosis-based assessment and correctly selected range of motion as giving the higher assessment of WPI; MAC demonstrated that medical assessor had adopted the same methodology as the appellant worker’s independent medical expert; Section 323 deduction was validly based on report of MRI scan showing pre-existing condition; Held- the medical assessor had set out the evidence upon which he had based the WPI assessment and the deduction pursuant to section 323; those assessments were open to the AMS on the evidence and no error or adoption of incorrect criteria was demonstrated; reference to Campbelltown City Council v Vegan and others and Cole v Wenaline; MAC confirmed.
Decision date: 19 April 2021 | Panel Members: Member William Dalley, Dr James Bodel and Dr Roger Pillemer| Body system: Left lower extremity
Respondent worker suffered an injury to left wrist and hand and in a subsequent incident that occurred as a result of that injury, also suffered an injury to his right wrist and hand; arbitrator held that permanent impairment from both was to be assessed together; AMS diagnosed CRPS1; appellant submitted AMS erred by doing so because AMS did apply criteria of Table 17.1 correctly in that there was no asymmetry of symptoms and signs in the respondent’s upper extremities; in the alternative, appellant submitted that AMS erred and applied incorrect criteria because the AMS assessed the respondent’s sensory deficits using Table 16-15; Held- Appeal Panel held that the AMS did not make any error by diagnosing respondent’s injury as CRPS1 because where signs and symptoms from an injury affect a worker’s joints bilaterally, asymmetry of signs and symptoms can be established by comparing the affected bilateral joints with the rest of the worker’s body; Appeal Panel held that with respect to the assessment of the respondent’s sensory deficits, AMS applied incorrect criteria by using Table 16-15, whereas he should have applied Table 16-10a; MAC revoked.
Decision date: 20 April 2021 | Panel Members: Member Marshal Douglas, Dr Gregory McGroder and Dr John Brian Stephenson| Body system: Right upper extremity and left upper extremity
Merit Review Decisions
Dispute about whether the cost of treatment and care provided to the claimant is reasonable under section 3.24(1)(a) of the Motor Accident Injuries Act 2017; purchased Norflex Tablets at a cost of $42.99; muscle relaxant; soft tissue injuries; pre-existing age-related condition; long-standing history of neck pain; unusual persisting mechanical pain in the left occipital region; Held- reviewable decision set aside; claimant is entitled to the reasonable cost of statutory benefits for treatment expenses.
Decision date: 9 March 2021 | Merit Reviewer: Michael Sofoulis
Statutory benefits and earning capacity under Division 3.3 of the Motor Accident Injuries Act 2017; weekly benefits; whether the insurer has given the required period of notice before discontinuing payments; four weeks notification in second entitlement period; degree of impairment of earning capacity; fall at home; new injury; exacerbation of the original injury; loss of capacity is not related to subject accident; Held- decision set aside; matter remitted to insurer for reconsideration and medical assessment.
Decision date: 12 April 2021 | Merit Reviewer: Roohi Koya
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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