Legal Bulletin No. 18
This bulletin was issued on 2 July 2021
Issued 2 July 2021
Welcome to the eighteenth 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.
Appeal Case Summaries
Motor Accidents non-Presidential Member Decisions
Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits under section 3.38 of the Motor Accident Injuries Act 2017; contributory negligence; insured driver visited the claimant at his home; conversation became heated; went to his vehicle; shut the door; reversed onto the driveway; claimant fallen to the ground; spun the wheels in the driveway; Held- accept the claimant’s version; insured driver’s vehicle did collide with him, causing him to lose his balance and fall to the ground; 10% blame for the claimant.
Decision date: 15 June 2021| Member: David Ford
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; lost control of his motor vehicle and collided with a tree; unknown vehicle merged into his lane; claimed brake failure; unable to determine whether there was mechanical fault with the brakes before the collision; car very heavy with equipment; vehicle was serviced regularly; momentary inattention; night shift; Held- accepted there was some brake failure; claimant was not mostly or wholly at fault.
Decision date: 15 June 2021 | Member: Shana Radnan
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; motorcycle accident; T-intersection; vehicle failed to give way; Police and Ambulance did not attend; fractured left-hand; swerve then came off his motorcycle; raining; rider fell with his motorcycle, and he skidded along the road with his bike; independent witnesses; conflict in the evidence; contributory negligence; Held- driver of the vehicle at the T-intersection most likely more responsible than the claimant.
Decision date: 23 June 2021 | Member: Terence Stern
Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; claimant is the husband; wife dies as a result of injuries; claiming damages for the loss of his wife’s financial support and her gratuitous services; claimant 80 years of age; aged pension; received a carer’s pension for looking after the claimant; dialysis treatment three times a week; settlement has been agreed; Held- satisfied that the settlement figure now proposed is an appropriate one; settlement is approved.
Decision date: 23 June 2021| Member: Margaret Holz
Workers Compensation non-Presidential Member Decisions
The applicant claimed to have sustained injury to her lumbar spine as a result of the nature and conditions of employment as a pathology collector; claim for weekly benefits and medical expenses; the applicant initially ceased work due to a psychological condition; lack of contemporaneous report of work-related injury to the lumbar spine; lack of evidence of causation from treating practitioners; application of section 4(b)(ii) of the 1987 Act; AV v AW applied; Held- the applicant has not met the onus of establishing injury pursuant to section 4 of the 1987 Act; award for the respondent.
Decision date: 18 June 2021| Member: Kerry Haddock
Work capacity dispute; PIAWE calculation based on sections 44C-44I of the 1987 Act as at 24 February 2019; applicant’s secondary business earnings; net earnings considered; Held- finding that PIAWE under provisions as at 24 February 2019 includes business earnings.
Decision date: 18 June 2021| Member: Michael Wright
Calculation of PIAWE; application of regulation 8C of the Workers Compensation Regulation 2016; date of injury 4 August 2020; increase in hourly wage rate and wages from 25 June 2020; Held- regulation 8C applies and relevant period for PIAWE is from 25 June 2020.
Decision date: 18 June 2021 | Member: Michael Wright
Claim for compensation for permanent impairment; worker suffered crush injury to right hand and subsequent amputation of the tip of one finger; no dispute as to physical injury; worker also claimed bullying and unfair treatment on return to work following surgery; dispute as to whether worker suffered primary psychological injury; Held- finding that the totality of the evidence supported the conclusion that the worker suffered a primary psychological injury; worker may have also suffered a secondary psychological injury but if so it was not compensable; matter remitted to the President for referral to a medical assessor for assessment of whole person impairment as a result of primary psychological injury.
Decision date: 18 June 2021 | Member: Jill Toohey
Worker suffers fall while absent from work recuperating from compensable right shoulder surgery; insurer disputes that the need for revision shoulder surgery following the fall is reasonably necessary as a result of the work injury; Ozcan v Macarthur Disability Services Ltd, Secretary, New South Wales Department of Education v Johnson considered; State Government Insurance Commission v Oakley considered and applied; Held- award for worker for cost of revision surgery as work injury and initial surgery rendered the worker’s shoulder vulnerable to further injury.
Decision date: 21 June 2021| Member: Paul Sweeney
Claim for medical expenses and weekly benefits following flu injection provided by respondent as part of a work health and safety program and which was administered in an appropriate location; issue as to whether this was an injury arising out of and in the course of employment and whether work was a substantial contributing factor; Held- injury both arising from employment and in course of employment and work was a substantial contributing factor; found that the applicant suffered adhesive capsulitis following the injection but not a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear; not satisfied that the surgery for rotator cuff repair on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.
Decision date: 21 June 2021 | Member: Carolyn Rimmer
Claim for hearing aids pursuant to section 60 of the 1987 Act; dispute as to whether notice of injury given and claim made in time, noisy employment, last noisy employment and reasonable necessity of proposed treatment as a result of injury; concession by respondent that claim made in time; Unilever Australia Ltd v Petrevska applied; preference for lay evidence of applicant’s former supervisor over lay evidence relied on by respondent; respondent relied on noise level testing performed several years after applicant ceased employment; independent medical assessors for both parties did not accept results of noise level testing; respondent’s medical assessor described noise surveys as serving no probative purpose; both independent medical assessors accepted that the applicant has noise-induced hearing loss and the respondent was her last relevant employer pursuant to section 17 of the 1987 Act; Dawson and others t/as The Real Cane Syndicate v Dawson and Diab v NRMA Ltd applied; submission by respondent that medical dispute be referred to Medical Assessor for non-binding opinion; submission by applicant that referral to Medical Assessor not necessary; Held- the applicant gave notice of injury and made a claim within time; the applicant sustained injury, that is loss of hearing, arising out of or in the course of her employment with the respondent, which was the last relevant employer; the provision of hearing aids is reasonably necessary medical treatment; award for the applicant for the provision of hearing aids pursuant to section 60 of the 1987 Act.
Decision date: 22 June 2021| Member: Kerry Haddock
Claim for weekly compensation for psychological injury; whether there was a pre-existing psychological condition; consideration of whether alleged personal stressors were causative rather than work issues; consideration of section 4(b)(i) disease or section 4(b)(ii) aggravation of a disease; whether alleged personal stressors were competing causative factors in consideration of whether employment was the main contributing factor; Held- found there was no pre-existing condition; personal stressors were not causative of the psychological injury and were not competing causative factors; found employment was the main contributing factor; award for the applicant for claim for weekly compensation.
Decision date: 22 June 2021 | Member: Michael Wright
Aggravation of underlying developmental condition; whether surgery was reasonably necessary medical treatment in light of significant mental health and other psycho-social issues; Rose v Health Commission (NSW) and Diab v NRMA Ltd considered and applied; Held– award for the applicant under section 60.
Decision date: 22 June 2021 | Member: Catherine McDonald
Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” or was a “secondary psychological injury” that was, by virtue of section 65 A(1) of the 1987 Act excluded from giving rise to a claim for lump sum compensation for permanent impairment under section 66(1) of the 1987 Act; Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65 A of the 1987 Act that may give rise to a claim for lump sum compensation under section 66(1) of the 1987 Act.
Decision date: 23 June 2021| Member: Karen Garner
Third set of proceedings filed by the applicant; applicant’s counsel and solicitor withdraw from the proceedings; matter not ready to proceed to determination in absence of legal representation and further medical evidence; prior proceedings struck out and discontinued; application by respondent to have the matter struck out; Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited discussed; Held- proceedings dismissed for want of due despatch.
Decision date: 23 June 2021| Senior Member: Glenn Capel
Application for leave to rely on un-notified matters pursuant to section 289A (4) of the 1998 Act; applicant discontinued prior proceedings when the respondent objected to an amendment to allege a secondary psychological condition; fresh application included additional dates of injury and injuries to other parts of the applicant’s body; the respondent had not previously disputed these alleged injuries and the psychological condition, although it had paid for psychological treatment; leave sought by the respondent to raise a dispute, opposed by the applicant; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services, Department of Education & Training v Sinclair, Begnell v Super Start Batteries Pty Ltd discussed and applied; Held- leave granted to the respondent to rely on un-notified matters.
Decision date: 23 June 2021| Senior Member: Glenn Capel
Workers Compensation President's Delegate Decision
Appellant lodged an application to appeal against decision of Medical Assessor on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; appellant’s challenge to the assessment limited solely to the application of section 323 of the 1998 Act; appellant argued the Medical Assessor did not properly apply the statute and made a deduction when he should not have; appellant also submitted that the Medical Assessor did not provide reasons for the deduction; Held- ground of appeal as specified in section 327(3) is not made out; the appeal is not to proceed.
Decision date: 24 June 2021 | Delegate: Parnel McAdam
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of whole person impairment (psychiatric and psychological); whether assessor erred in assessing psychiatric impairment rating scales of Self-care and personal hygiene, Social and recreational activities, Social functioning, and Employability and adaptation; Held- MAC confirmed.
Decision date: 18 June 2021| Panel Members: Member Richard Perrignon, Dr Douglas Andrews and Dr Julian Parmegiani| Body system: Psychological/ psychiatric disorder
Appeal from assessment of whole person impairment (right upper extremity - shoulder); assessed on range of motion basis only; whether assessor erred in failing to assess also on the basis of arthroplasty, and to combine the two assessments; Held- MAC revoked
Decision date: 18 June 2021 | Panel Members: Member Richard Perrignon, Dr Drew Dixon and Dr Mark Burns| Body system: Right upper extremity, left upper extremity and scarring TEMSKI
Assessment of lumbar spine, right lower extremity and digestive tract by Medical Assessor (MA); Medical Assessor assessed the appellant as DRE I but found reduced sensation in the L5 Dermatome region and the clinical history and examination findings were consistent with a specific injury; Held-Panel concluded that the appellant fell into DRE II and assessed 6% WPI in respect of the lumbar spine; MAC revoked.
Decision date: 21 June 2021| Panel Members: Member Carolyn Rimmer, Dr John Dixon-Hughes and Dr John Garvey| Body system: Lumbar spine, right lower extremity and upper digestive tract
Claim for lump-sum compensation in respect of psychological injury; referral to the AMS noted agreement of the parties that the worker had suffered a primary psychological injury and a secondary psychological condition (as well as fractures to the bones of the face); the AMS determined that the worker suffered 44% WPI; the AMS referred to the existence of a somatic symptom disorder but did not apportion any part of the level of impairment assessed between secondary psychological condition or the somatic symptom disorder; the decision of an Appeal Panel was set aside upon review in the Supreme Court and the appeal remitted to the current panel; the current Appeal Panel determined that demonstrable error was established in that the AMS had failed to have regard to the agreement of the parties that there was a secondary psychological condition and, having found a somatic symptom disorder, making no apportionment and providing no reasons for not apportioning the impairment assessed; Held- on assessment by the Appeal Panel and following re-examination the Panel was satisfied that the worker suffered a Major Depressive Disorder; the findings of the medical assessor were supplied to the parties and further submissions were provided; the Guidelines were applied and the Panel noted that DSM 5 provided a diagnosis of somatic symptom disorder was not appropriate where the worker was suffering results of a Major Depressive Disorder; the Panel noted the statutory definition required that a secondary psychological condition resulted from physical injury which, on the evidence, was not established; the MAC was revoked and assessment of impairment wholly attributable to primary psychiatric injury was made.
Decision date: 22 June 2021| Panel Members: Member William Dalley, Dr Patrick Morris and Dr Brian Parsonage| Body system: Psychological/ psychiatric disorder
Injury to lumbar spine; Medical Assessor assessed DRE Category II despite the applicant undergoing surgery and on the basis there was no assessable radiculopathy; according to paragraph 4.37 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, the appellant is entitled to an assessment of DRE Category II because of the surgery notwithstanding the absence of residual radiculopathy; Held- MAC revoked.
Decision date: 22 June 2021| Panel Members: Member Jane Peacock, Dr Brian Noll and Dr Margaret Gibson | Body system: Lumbar spine
Appellant worker suffered psychological injury; Medical Assessor assessed she had 19% WPI resulting from her injury; appellant submitted Medical Assessor applied incorrect criteria in making that assessment and that the MAC contained a demonstrable error because, firstly, Medical Assessor’s assessment with respect to her impairment in social functioning was not consistent with the evidence and , secondly, the Medical Assessor ought to have increased his assessment of appellant’s impairment due to the effects of the treatment; Held- Appeal Panel held that the Medical Assessor considered all relevant evidence when assessing the appellant’s impairment with respect to social functioning and provided considered reasons for his assessment and the assessment he made was open to him based on the evidence and was in accordance with the relevant criteria; the Appeal Panel found that the appellant continued to suffer significant symptoms from her injury and had a significant impairment, and consequently the Medical Assessor correctly applied [1.32] of the Guidelines by not increasing his assessment of the appellant’s impairment due to the effects of treatment; MAC confirmed.
Decision date: 23 June 2021| Panel Members: Member Marshal Douglas, Dr Patrick Morris and Dr Douglas Andrews| Body system: Psychological/ psychiatric disorder
Merit Review Decision
Merit review; costs dispute under section 8.10 of the Motor Accident Injuries Act 2017; recovery of costs and expenses; MRIs; gap payment; withdrew application; lodged legal costs dispute; confusion and clerical error; Held- legal costs incurred reasonable and necessary; allow maximum costs.
Decision date: 17 June 2021| Merit Reviewer: Tajan Baba
Legislative Amendments and Related Updates
No further updates this week. Updates on the transitional provisions in the Bill will be provided in Legal Bulletin 19.
Note: A discussion of this Bill featured initially in Legal Bulletin 16.
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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