Legal Bulletin No. 24
This bulletin was issued on 13 August 2021
Issued 13 August 2021
Welcome to the twenty-fourth 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.
WORKERS COMPENSATION- Mason v Demasi and Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy distinguished; appellant bore onus in respect of alleged consequential condition; discretion of first instance decision-maker to weigh evidence; no error.
Decision date: 26 July 2021| Before: President Judge Phillips
WORKERS COMPENSATION- worker; whether applicant carried on his own business or whether he was a worker; Malivanek v Ring Group Pty Limited and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) discussed and applied; section 352 of the 1998 Act; requirement to show error on appeal.
Decision date: 4 August 2021| Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decision
Miscellaneous Claims Assessment; dispute pursuant to section 3.38 of the Motor Accident Injuries Act 2017; dispute arises out of the decision by the insurer to reduce the statutory benefits payable to the Claimant for loss of earnings or earning capacity occurring more than 26 weeks after the motor accident for contributory negligence assessed at 50%; claimant relied on witness evidence that the insured driver proceeded through a red light; insurer submitted the risk of harm was foreseeable and a reasonable person in the Claimant’s position ought to have ascertained and exercised reasonable caution; Held- satisfied that insured driver drove through a red light in breach of the Road Rules 2014; negligence by another does not extinguish the Claimant’s obligation to exercise a degree of care in the circumstances; satisfied that the degree of departure from the standard of the reasonable man displayed by the Claimant in the circumstances would amount to a finding of contributory negligence of 10%; Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017.
Decision date: 4 August 2021 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Claim for weekly benefits and section 60 expenses as a result of psychological injury; the respondent conceded injury but relied of section 11A defence of reasonable action taken or proposed to be taken with respect to transfer and/or provision of employment benefits; Held- finding that injury was caused by action taken or proposed to be taken by the respondent with respect to transfer and the provision of employment benefits but finding that such action was not reasonable; awards for weekly compensation and section 60 expenses in favour of the applicant.
Decision date: 29 July 2021| Member: Brett Batchelor
Claim pursuant to section 66 of the 1987 Act for lump sum compensation in respect of a primary psychological injury; previous consent orders awarding weekly compensation; whether consent orders create an estoppel on the question of injury; whether the same injury was relied on in both proceedings; where subsequent periods of employment and non-work stressors; Held- previous consent orders created an estoppel on the question of injury; Manpower Pty Limited v Harris considered; applicant sustained a psychological injury pursuant to sections 4, 11A(3) and 9A; matter remitted to President for referral to a Medical Assessor.
Decision date: 30 July 2021| Member: Rachel Homan
Claim for costs payable under section 60 of the 1987 Act for medical cannabis treatment resulting from injury sustained to the applicant’s low back on 10 May 2013 during the course of his employment with the respondent; Held- the applicant requires medical and related treatment resulting from injury sustained to his low back on 10 May 2013 during the course of his employment with the respondent and medical cannabis treatment is reasonably necessary treatment resulting from that injury.
Decision date: 2 August 2021| Member: Jacqueline Snell
Claim for compensation for permanent impairment pursuant to section 66 of the 1987 Act as a result of undisputed injury to the lumbar spine and alleged injury to the right lower extremity, including the knee, in accordance with assessment of Independent Medical Examiner who assessed the right knee, and also dyaesthesia in the right leg resulting in WPI; respondent denies injury to the right lower extremity and right knee such as to enable an assessment of WPI, and that dyaesthesia in the right leg not assessable as a result of any claimed right lower extremity injury; Held- award for the respondent in respect of injury to the right leg including the knee; matter referred to a Medical Assessor for assessment of WPI resulting from the undisputed injury to the back (lumbar spine).
Decision date: 3 August 2021| Member: Brett Batchelor
Claim for weekly compensation, section 60 expenses and lump sum compensation pursuant to section 66 of the 1987 Act in respect of an accepted left shoulder injury and disputed consequential left knee condition; applicant returned to work in pre-injury duties following shoulder injury; work duties physically demanding; whether modification of the manner in which those duties were performed to protect injured shoulder resulted in left knee condition; whether claim for lump compensation properly made in the absence of a statement from the assessor that the knee condition had reached maximum medical improvement; Held- applicant sustained a consequential left knee condition; award for weekly compensation and section 60 expenses; Commission declined to make an order with respect to the section 66 claim as not validly made.
Decision date: 3 August 2021| Member: Rachel Homan
Claim pursuant to section 60 of the 1987 Act for the costs of and incidental to a proposed surgery to extend a previous lumbar fusion to L2/3; lumbar injury accepted and previous treatment funded by insurer; whether further surgery “reasonably necessary”; alternative treatment in the form of chronic pain management recommended; whether radiological and clinical indications for the proposed surgery; Held- discrepancies between the treating medical evidence and the respondent’s expert’s history; Diab v NRMA Ltd considered and applied; award for the applicant.
Decision date: 3 August 2021 | Member: Rachel Homan
Claim under section 60 for cost of proposed lumbar spinal surgery for spondylolisthesis condition (condition); significant history of pre-existing symptoms and radiological evidence of the condition; whether employment injury on 3 September 2019 was main contributing factor to aggravation, acceleration, exacerbation or deterioration of the condition and whether employment materially contributed to the need for the surgery; Held- employment was main contributing factor to a temporary symptomatic exacerbation of the condition, such exacerbation ceasing by 19 September 2019; award for the respondent.
Decision date: 3 August 2021 | Member: Michael Perry
Consequential condition; applicant seeks permanent impairment compensation for alleged lumbar spine condition brought about by altered gait following accepted serious laceration to right leg in the course of employment with the respondent; right lower extremity and primary psychological injury admitted; causation; whether lumbar spine condition causally linked to the leg injury: Kooragang Cement Pty Ltd v Bates followed; nature of consequential conditions discussed; Kumar v Royal Comfort Bedding Pty Ltd followed; Moon v Conmah Pty Ltd and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed; Held- the evidence establishes on the balance of probabilities that the lumbar spine condition was caused by the right leg injury; that finding was supported by both IME and treating medical opinion; although the applicant had previously suffered back issues, his treatment for those problems consisted of a visit in 2009 where he was prescribed analgesic medication and one further visit in 2015 when he complained of back pain for two months preceding the consultation; matter remitted to the President for referral to Medical Assessor for assessment of permanent impairment arising from right lower extremity (leg), scarring, primary psychological injury and consequential condition to the lumbar spine.
Decision date: 4 August 2021 | Member: Cameron Burge
Claim for aggravation of disease process of right hip avascular necrosis and consequential left hip aggravation of avascular necrosis for weekly compensation and for section 60 expenses including bilateral total hip replacements; section 4(b)(ii) aggravation of disease; main contributing factor and AV v AW considered; material contribution of subject injury to the need for surgery to the left hip; Murphy v Allity Management Services P/L considered; Held- applicant sustained section 4(b)(ii) aggravation of disease of the right hip and consequential left hip condition; award for the applicant for weekly compensation and for payment of bilateral hip replacements and general section 60 order otherwise.
Decision date: 4 August 2021 | Member: Michael Wright
Workers Compensation President’s Delegate Decisions
Application by an exempt worker for assessment of costs in respect of proceedings which were ultimately discontinued; claim for professional costs and disbursements; application of clause 104 and 116 of the Workers Compensation Regulation 2016; whether the Commission has jurisdiction to make an assessment of costs claimed; Held- applicant failed to satisfy the necessary preconditions of an application for assessment of costs, application for assessment of costs declined.
Decision date: 12 May 2021 | Delegate: Kathryn Camp
Claim for weekly compensation and past medical expenses as a result of a recurrence of an accepted white tail spider bite injury and its sequelae; consideration of when weekly entitlement periods commence; Kilic v Kmart Australia Ltd applied; Held- applicant experienced a re-emergence of symptoms in his left leg as a result of the accepted white tail spider bite injury and its sequelae, for which he had periods of no current work capacity and underwent medical treatment; award for the applicant for weekly compensation pursuant to sections 36 and 37 of the 1987 Act; award for the applicant for past medical expenses pursuant to section 60 of the 1987 Act
Decision date: 4 August 2021 | Delegate: Kathryn Camp
Workers Compensation Medical Appeal Panel Decisions
Worker fell 2.5 metres suffering injuries to his cervical and lumbar spines; as a result of ingesting medication, he suffered consequential conditions in his upper and lower digestive tracts; worker alleged that the assessor failed to assess “sensory blunting” as radiculopathy; application of Guidelines with respect to assessment of digestive tract; requirement for signs as well as symptoms; Held- MAC confirmed.
Decision date: 2 August 2021| Panel Members: Member Catherine McDonald, Dr Richard Crane and Dr Philippa Harvey-Sutton| Body system: Cervical spine, lumbar spine and digestive system
Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene, travel and social functioning; fresh evidence not admitted because no explanation as to why it was not included and was of little probative value being part of a report in 2014; Held- the MA’s assessments were open to him on the evidence; the MAC was extremely thorough and detailed; MAC confirmed.
Decision date: 3 August 2021| Panel Members: Member Deborah Moore, Dr Patrick Morris and Dr Michael Hong| Body system: Psychological/ psychiatric disorder
Cervical spine injury; whether assessor correct to assess worker in DRE cervical category I; worker argued that intermittent symptoms in arm were non-verifiable radiculopathy; no correspondence with cervical spine pathology; nerve conduction studies never undertaken; other possible explanations for symptoms; Held- MAC confirmed.
Decision date: 3 August 2021| Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr Margaret Gibson| Body system: Cervical spine, thoracic spine and right upper extremity
Respondent worker assessed by Medical Assessor (MA) as Category II WPI of cervical and lumbar spines and a 2% loading for activities of daily living (ADLs); employer alleges error in failure to make section 323 deduction and in assessing ADLs; where worker had sought medical treatment for back pain prior to injury; where previous award for permanent impairment of back; where diagnosis was aggravation of degenerative disease; Held- MA erred in failure to give reasons for making no deduction to WPI of lumbar spine; assessed by the panel at 10%; no error in respect of cervical spine or ADLs; as deduction of 10% after rounding up produced the same outcome as that reached by the MA, MAC is confirmed despite finding of error.
Decision date: 3 August 2021 | Panel Members: Member Paul Sweeney, Dr John Ashwell and Dr Richard Crane| Body system: Cervical spine and lumbar spine
Psychological Injury; appellant alleged error in the assessment under three categories under the Permanent Impairment Rating Scale (PIRS) namely Social and Recreational Activities, Travel and Social Functioning; Held- the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the Guidelines; MAC confirmed.
Decision date: 3 August 2021| Panel Members: Member Jane Peacock, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological/ psychiatric disorder
Motor Accidents Merit Review Decisions
Merit Review; dispute between the claimant and the insurer about the amount of weekly payments of statutory benefits payable under section 3.8, Division 3.3, Part 3 of the Motor Accident Injuries Act 2017 after the second entitlement period; insurer submitted that claimant was able to return to work provided he was not required to do any heavy lifting or carrying; claimant submitted he did not have any current earning capacity; pre-accident earning capacity and post-accident earning capacity considered; Held- claimant has no post-accident earning capacity and therefore has suffered a total loss of earning capacity; reviewable decision set aside; insurer to make weekly payments to the claimant pursuant to section 3.8 accordingly.
Decision date: 26 July 2021| Merit Reviewer: Maurice Castagnet
Merit Review; dispute between the Claimant and the Insurer concerning legal costs for a medical assessment; Insurer advised the claimant in a liability notice that she was not wholly or mostly at fault but had suffered minor injuries; accordingly, insurer denied liability to make statutory benefit payments beyond the first 26 weeks after the accident; internal review; claimant submitted she had suffered from a psychiatric illness; claimant was due to be medically assessed in regard to alleged psychological injury however assessment not completed; claimant seeks legal costs for the preparation and conduct of medical assessment over the minor injury dispute; insurer submitted that as the medical assessment was never completed, the application for legal costs in this dispute was lodged prematurely; whether entitlement to legal costs is only available after the completion of a medical assessment; Held- legal costs not recoverable for ‘exceptional circumstances’; insurer to pay the Claimant’s reasonable and necessary legal costs assessed in accordance with 2017 Act and Regulations.
Decision date: 3 August 2021| Merit Reviewer: Ray Plibersek
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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