Legal Bulletin No. 16

This bulletin was issued on 18 June 2021

Issued 18 June 2021

Welcome to the sixteenth edition of the Personal Injury Commission’s Legal Bulletin. In this edition we introduce a new section called “Legislative and Related Updates”.

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.

Presidential Decisions

Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15

WORKERS COMPENSATION: alleged factual error, application of Raulston v Toll Pty Ltd, Paric v John Holland Constructions Pty Ltd and Hancock v East Coast Timber Products Pty Ltd.

Decision date: 4 June 2021 | Before: Deputy President Michael Snell

Younan v Inner West Council [2021] NSWPICPD 16

WORKERS COMPENSATION: Section 11A(1) of the 1987 Act; application of Northern New South Wales Local Health Network v Heggie; ‘reasonable action’.

Decision date: 7 June 2021| Before: Acting Deputy President Larry King SC

Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17

WORKERS COMPENSATION: Section 294 of the 1998 Act; adequacy of reasons; ex tempore decisions; addendum to oral reasons added at the end of their delivery.

Decision date: 8 June 2021| Before: President Judge Phillips

Motor Accidents non-Presidential Member Decision

ABD v NRMA Insurance [2021] NSWPIC 163

Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act 2017; bicycle collided with a motor vehicle; intersection; determined on the papers; witness; insured driver drove the claimant to his home; claimant did not slow down at all as he came through the intersection; red mountain bike type; COPS report; bicycle rider was meant to stop and give way to the vehicle; conflicting versions of the motor accident; claimant’s evidence contained inconsistencies; claimant failed to give way; failed to keep a proper lookout; Held- motor accident caused mostly by the fault of the claimant; legal costs.

Decision date: 27 May 2021| Member: Anthony Scarcella

ABE v AAI Ltd t/as GIO [2021] NSWPIC 164

Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; motor bike; determined on the papers; construction site; piece of gyprock on the road directly in front; back wheel travelled over it and motorcycle slid; tear of the AC ligament of the right shoulder; view was obstructed by a 4WD car; Held- found the claimant is not wholly at fault; accident occurred because of a combination of the gyprock on the roadway and the negligence of the claimant; failed to keep a proper lookout; excessive speed; contributory negligence in the vicinity of 35%.

Decision date: 28 May 2021 | Member: Susan McTegg

ABF v Allianz Australia Insurance Limited [2021] NSWPIC 165

Miscellaneous claims assessment; whether the insurer is entitled to reduce the statutory benefits payable under section 3.38 of the Motor Accident Injuries Act 2017; insurer found 50% contributory negligence; consumed alcohol during the day; pedestrians crossing road; car travelling north approached and stopped; car travelling south struck the claimant and her companion; insured driver was blinded by the other vehicles lights; dark night; they chose the most appropriate and safest place to cross; claimant’s alcohol levels were low; just and equitable apportionment; Held- not satisfied that the conduct of the claimant was such as to fail to take reasonable care for her own safety; dimly lit regional centre street; insured driver failed to take appropriate evasive action; insurer is not entitled to reduce statutory benefits payable.

Decision date: 31 May 2021 | Member: Bridie Nolan

ABG v Allianz Australia Insurance Limited [2021] NSWPIC 166

Decision date: 31 May 2021 | Member: Bridie Nolan

Maksoud v AAI Limited t/as GIO [2021] NSWPIC 167

Miscellaneous claims assessment; late claim; whether the claimant has provided a full and satisfactory explanation; car was “T boned”; wife gave birth; advised by the government and his wife’s doctor not to leave home; COVID-19 pandemic; police advised him not to go to the hospital; claimant did not leave home except for emergencies; Held- the claimant has provided a sufficient and full explanation as to why his claim was late; he did not know of the three-month time limit; late claim may be made.

Decision date: 31 May 2021| Member: Ray Plibersek

Workers Compensation non-Presidential Member Decisions

Izzard v State of New South Wales (New South Wales Police Force) [2021] NSWPIC 168

Consideration of whether the disease provisions apply (sections 15 and 16 of the 1987 Act); incapacity; Aitkin v Goodyear Tyre and Rubber Co applied;Mitchell v Central West Health Service applied; consideration of probable earnings, if uninjured including career progression; Held- the disease provisions do not apply; partial incapacity; respondent to pay the applicant’s costs as agreed or assessed.

Decision date: 3 June 2021| Member: Elizabeth Beilby

McLoughlin v Secretary, Department of Education [2021] NSWPIC 168

Claim for lump sum compensation for psychological injury; Adjustment Disorder with mixed anxiety and depressed mood; worker claimed unfair treatment and lack of support; no dispute that employment was the main contributing factor to her injury; respondent maintained injury not compensable by reason of section 11A(1); no dispute that the action relied on by the respondent was action with respect to performance appraisal; no dispute that the respondent’s action was reasonable; dispute whether respondent’s action was the whole or predominant cause; worker’s condition pre-dated the relevant action; Held- finding that the respondents action was not the whole or predominant cause of the injury; agreement by parties that worker had 15 per cent whole person impairment; award for the worker.

Decision date: 3 June 2021| Member: Jill Toohey

Millgate v Nationwide News Pty Ltd [2021] NSWPIC 170

Notice for production requesting documents relating to the applicant over a period of 9 months; determination of notice of objection lodged by respondent; relevance; legitimate forensic purpose; Held- notice for production set aside in whole; direction to respondent to produce a narrower range of documents relevant to facts in issue.

Decision date: 3 June 2021 | Member: Rachel Homan

Bicanin v JMD Facility Services Pty Ltd t/as Glad Group [2021] NSWPIC 171

Dispute as to whether proposed carpel tunnel release surgery and associated treatment was causally related to work-related injury on 27 November 2018; Held- award for applicant having accepted the evidence of the treating hand surgeon.

Decision date: 4 June 2021 | Principal Member: Josephine Bamber

Stewart v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2021] NSWPIC 172

Claim for proposed lumbar two-level fusion surgery pursuant to section 60(5) of the 1987 Act; dispute as to whether proposed surgery is “reasonably necessary”; Diab v NRMA and Rose v Health Commission (NSW) considered; a range of different treatments may be considered reasonably necessary and it is only necessary for the applicant to establish that the proposed surgery is one of those treatments; Broadspectrum Australia Pty Ltd v Gunaratnam and Broadspectrum Australia Pty Ltd v Skiadas considered in respect of the potential effectiveness of the proposed treatment and whether that potential has a low threshold; Held-found that proposed surgery is reasonably necessary; respondent ordered to pay the costs of the proposed surgery.

Decision date: 7 June 2021| Member: Michael Wright

Marsh v Newcastle Stevedores Pty Ltd [2021] NSWPIC 173

The worker suffered injury to both shoulders and his left knee in 2010; there was a subsequent exacerbation of the left shoulder in a 2012 motor vehicle injury; the AMS assessed a 7/10th deduction pursuant to section 323 for the left shoulder and a 10/10^th deduction for the right shoulder; the subsequent effects of the 2012 accident were included in the section 323 deduction of the left shoulder; the overall whole person impairment was assessed by the AMS at 8%; the applicant failed to file an appeal in time against the medical assessment due to gross inadvertence by his solicitor; during this period, the Commission issued a determination (COD) in accordance with the MAC; the applicant then filed an application to rescind the COD so that an appeal could be filed; Held- the power to reconsider an order depended upon the interests of justice; Atomic Steel Constructions Pty Ltd v Tedeschi applied; the applicant had strong prospects of success as the application of a subsequent injury in the section 323 deduction was a clear error; Department of Education v Johnson applied; the AMS otherwise failed to explain and give reasons for the 10/10ths deduction of the right shoulder and appeared to reject the agreement on injury; Jaffarie v Quality Castings Pty Ltd (No 2) applied; the conduct of the applicant’s solicitor in causing the delay arguably amounted to “special circumstances” to extend time within the meaning of section 327(5) of the 1998 Act; despite the poor explanation for the delay and undoubted prejudice that the respondent would suffer if an appeal was filed, the COD was rescinded due to the strong prospects of the potential appeal.

Decision date: 8 June 2021 | Principal Member: John Harris

McGrath v P.M Electric Pty Ltd [2021] NSWPIC 174

Claim for the death benefit and expenses under section 28 of the 1998 Act; worker died on a trip to Singapore funded by his employer for team building and to reward staff; course of employment- Hatzimanolis v ANI Corporation Limited, Comcare v PVYW and Pioneer Studios v Hills; substantial contributing factor - Badawi v Nexon Asia Pacific and Roncevich v Repatriation Commission; Held- worker was in the course of employment but employment was not a substantial contributing factor to the injury; award for the respondent.

Decision date: 8 June 2021 | Member: Catherine McDonald

Gillet v Tracey Bartley Pty Limited [2021] NSWPIC 175

Claim for permanent impairment compensation and medical expenses as a result of injury to cervical spine and thoracic spine sustained in a fall from a horse; injury claimed to be either post-traumatic syrinx or the aggravation, exacerbation and/or acceleration of underlying disease condition; Makita v Sprowles, Hancock v East Coast Timber, Mason v Demasi and State Transit Authority of New South Wales v El-Achi considered; Held- applicant developed syrinx either as a result of a frank incident or aggravation, exacerbation and/or acceleration of disease; award for the applicant for medical expenses; medical dispute referred to Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine and thoracic spine.

Decision date: 8 June 2021| Member: Kerry Haddock

Tumut Excavations Pty Limited v Ferella [2021] NSWPIC 176

Substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective applicants; Held- first and second respondents were depend upon the deceased for support at the date of his death; apportionment of lump sum benefit pursuant to section 25(1)(a) of the 1987 Act.

Decision date: 8 June 2021| Member: Elizabeth Beilby

El-Tom v Downer EDI Engineering Power Pty Ltd [2021] NSWPIC 177

Psychological injury; claim for weekly compensation; whether applicant suffered work-related injury to which his employment was the main contributing factor; no issue the applicant is totally incapacitated for the period claimed; Held- the applicant suffered a workplace injury to which his employment was the main contributing factor; his perception of the extent to which he was required to work underground and in confined spaces was the perception of a real event, sufficient to ground a finding of injury; Attorney General’s Department v K and State Transit Authority of NSW v Chemler applied; GP clinical record entries predating the workplace injury which reveal complaints of lethargy and dizziness are not, without expert opinion to support the contention, a sufficient basis to draw an inference that a worker suffered from a pre-existing psychological condition; none of the treating or medicolegal doctors retained in the matter provided any opinion to the effect the prior symptoms complained of were evidence of a pre-existing condition; the parties are ordered to provide calculations as to the precise period of the claim for weekly benefits and as to the applicable rate payable.

Decision date: 9 June 2021| Member: Cameron Burge

Workers Compensation Medical Appeal Panel Decisions

Gencer v Chelsam Joinery Pty Ltd [2021] NSWPICMP 84

Arbitrator remitted matter to the Registrar to refer to an AMS for assessment of whole person impairment (WPI) of the cervical spine and thoracic spine as a result of injury on 22 February 2018; the AMS found that there had not been a significant injury to either the cervical spine or the thoracic spine and did not give any further consideration to the assessment of any impairment in the cervical spine or the thoracic spine; the AMS did not refer to any of his clinical findings in those body parts, did not identify which DRE category was appropriate to those two areas and gave no reasons why any particular DRE category was to be assessed; Held- in failing to make a proper assessment of both the cervical spine and thoracic spine, the AMS made a demonstrable error; worker re-examined and MAC revoked.

Decision date: 3 June 2021| Panel Members: Member Carolyn Rimmer, Dr Drew Dixon and Dr Tommasino Mastroianni| Body system: Cervical Spine, Thoracic Spine and Lumbar Spine

Szalkay v State of New South Wales (Ambulance Service of New South Wales) [2021] NSWPICMP 85

Appeal against finding of 7% WPI for psychological/psychiatric injury; findings re PIRS categories of social and recreational activities and employability challenged; activities of tai chi and visiting a Buddhist Temple said to be solitary activities and not appropriate to the social and recreational activities category; Medical Assessor (MA) said to have failed to apply the provisions of the 1987 Act with regard to earning capacity; appeal against 1% allowance pursuant to Chapter 1.32 for effects of treatment as being too low; Held- activities within scope of social and recreational activity category; Ballas v Department of Education (State of NSW) applied; employability governed by different considerations to assessment of earning capacity under the 1987 Act; Jaffaire v Quality Castings Pty Ltd considered; appeal against quantum allowed by MA for effects of treatment rejected; no evidence of apparent substantial or total elimination of permanent impairment; MAC confirmed.

Decision date: 3 June 2021| Panel Members: Member John Wynyard, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/ Psychiatric disorder

State of New South Wales (Ambulance Service of NSW) v Thomas [2021] NSWPICMP 86

Appeal by employer on the ground that the MAC contains a demonstrable error in that the Medical Assessor deducted 10% only from his assessment of WPI for pre-existing injury, condition or abnormality pursuant to section 323(2) of the 1998 Act as a result of a previous non-work shoulder injury, and that he failed to provide adequate reasons for the deduction; the previous non-work related shoulder injury suffered by the respondent worker was significant and had been surgically treated by the same surgeon who treated him with two further surgical interventions post work injury; detailed examination of the medical evidence of the treating surgeon; Held- finding of demonstrable errors in the degree of the deduction made by the Medical Assessor pursuant to section 323(2) of the 1998 Act for pre-existing injury and for the failure to provide adequate reasons; MAC revoked and new MAC issued containing 25% deduction from WPI assessed by the Medical Assessor for previous shoulder injury.

Decision date: | Panel Members: Member Brett Batchelor, Dr Drew Dixon and Dr Tommasino Mastroianni | Body system: Right upper extremity and Scarring

Lawrence- Plant v J&S Plant Pty Ltd (deregistered) [2021] NSWPICMP 87

Appellant worker suffered injury of further hearing loss; contended MAC contained a demonstrable error because firstly, Medical Assessor (MA) did not attribute his hearing loss in right ear, to the extent it exceeded loss in left ear, as being due to occupational noise and, secondly, MA did not attribute hearing loss at 500 and 1000 Hz as being due to occupational noise; Held- Appeal Panel found MA was correct to come to the conclusions he did; MAC confirmed.

Decision date: 8 June 2021 | Panel Members: Member Marshal Douglas, Dr Brian Williams and Dr Paul Niall| Body system: Hearing

Merit Review Decision

ABH v AAI Ltd t/as GIO [2021] NSWPICMR 16

Whether the costs and expenses incurred by the claimant are reasonable and necessary under section 8.10 of the Motor Accident Injuries Act 2017; minor injury dispute; costs determined by the regulations; medical assessment application did not include detailed, substantive or comprehensive submissions; Held- decision set aside; costs of $500 plus GST; not satisfied of exceptional circumstances.

Decision date: 2 June 2021| Merit Reviewer: Brett Williams

Legislative Amendments and Related Updates

Motor Accidents and Workers Compensation Legislation Amendment Bill 2021

The Motor Accidents and Workers Compensation Legislation Amendment Bill 2021 (Bill) was introduced into the Legislative Assembly on 9 June 2021 by the Hon. Victor Dominello, Minister for Customer Service (Minister). Click here to read the Bill.

The Bill introduces several amendments to the Motor Accident Injuries Act 2017, the Motor Accidents Compensation Act 1999, the Workers Compensation Act 1987, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, the State Insurance and Care Governance Act 2015 and the Personal Injury Commission Act 2020.

In the second reading speech (click here), the Minister said ‘the proposed amendments cover a diverse range of areas, each of which work towards ensuring a more consistent customer experience for policyholders, injured people and other stakeholders of the workers compensation and CTP schemes.’ The Bill has four schedules. The three schedules which are most relevant to the Personal Injury Commission are summarised below. Next week’s Legal Bulletin will discuss the Bill and transitional provisions.

Schedule 1 - Amendments concerning motor accidents legislation

Schedule 1 provides for amendments concerning motor accidents legislation, namely the Motor Accident Injuries Act 2017 (2017 Act) and the Motor Accidents Compensation Act 1999 (1999 Act). The Bill amends the following:

The definition of “pre-accident weekly earnings” in clause 4(2)(b) in Schedule 1 of the 2017 Act. The definition will now consider increased earnings that the injured person would have been entitled to receive had the injury not occurred.
The calculation of weekly statutory benefits (under ss 3.6(2), 3.7(2) and (3), 3.8(2) and (3) of the 2017 Act) to take into account the actual earning amount when it is greater than the earning capacity.
Section 3.21(2)(a) of the 2017 Act to permit an insurer to start paying benefits immediately to those who are residing outside Australia and to make an agreement with the injured person that payments be made more frequently than on a quarterly basis.
Provisions in Part 5 of the 2017 Act to clarify that all injured individuals who are not wholly or mostly at fault and who have more than one minor injury are entitled to receive statutory benefits.
Section 3.2(6) and (7) of the 2017 Act to give interstate insurers an option to seek SIRA’s written approval to manage statutory benefit claims by entering into an agreement with a NSW licensed insurer or to opt for the Nominal Defendant to manage the claim on their behalf.
Section 3.2 to contain a new subsection to make clear that where the interstate insurer’s policy does not cover the at fault driver, the Nominal Defendant will bear the cost of paying the statutory benefits to that at fault driver.
Section 11.11 of 2017 Act and section 121 of the 1999 Act to provide SIRA with stronger power to regulate the use of the term ‘green-slip.’
Section 1.4 and section 2.26 of the 2017 Act to improve the operation of the CTP scheme in relation to point to point vehicles.

Schedule 2 - Amendments concerning workers compensation legislation

Schedule 2 provides for amendments concerning workers compensation legislation, namely the Workers Compensation Act 1987 and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. This schedule amends the following:

Section 19 of the Workers Compensation Act 1987 to allow the deemed diseases list to specify minimum periods of services in specified employment and minimum exposure requirements, if applicable, before a disease is deemed to be work related.
Section 25 of the Workers Compensation Act 1987 to create an additional compensation entitlement to cover the fees charged by the NSW Trustee & Guardian to manage a child’s lump sum death benefit. The amendment also allows for regulations to provide for how this additional compensation is to be calculated.
Section 53 of the Workers Compensation Act 1987 to provide that workers who cease to live in Australia and their insurers may reach an agreement on the likely permanent nature of the worker’s incapacity without having to bring a dispute to the Personal Injury Commission.
Section 59 of the Workers Compensation Act 1987 to simplify and modernise the definition of ‘medical and related treatment.’
Sections 10 and 26 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 to provide access to reasonable funeral expenses up to a maximum of $15,000.
Introduces sections 14A, 14B, 28C and 28D of to the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 to provide access to compensation for the cost of return-to- work assistance to help volunteers with paid work at the time of their volunteer related injury.
Introduces section 3A to the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 which extends entitlement to eligible volunteers.

Schedule 4 - Amendments to the Personal Injury Commission Act 2020,

Schedule 4 provides amendments to the Personal Injury Commission Act 2020, that support the establishment of the Personal Injury Commission. Schedule 4 amends the following:

Introduces section 64A to the Personal Injury Commission Act 2020 to clarify the application of the Judges’ Pensions Act 1953
Amends section 26D of the Civil Liability Act 2002 which deals with the assessment of permanent impairment, so that every reference to an Approved Medical Specialist is replaced with “Medical Assessor”
Amends section 6 of the Sporting Injuries Insurance Act 1978 to clarify terminology relating to medical assessors.

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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