Legal Bulletin No. 2

Issued 12 March 2021

Welcome to the second edition of the Personal Injury Commission’s Legal Bulletin. We trust that you find this update useful. Please see here for details about the various 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. However, please note, those decisions with “WCC” citations are only uploaded to the Commission website click here (i.e. not available on external databases).

Workers Compensation non-Presidential Member Decisions

Ibbett v Toll Group Logistics [2021] NSWWCC 64

Claim for medical and related treatment expenses and permanent impairment compensation resulting from primary psychological injury; the respondent disputed the applicant sustained work-related injury and raised defence under section 11A of the 1987 Act relevant to discipline in the alternative; the respondent disputed the applicant’s entitlement to costs associated with medical and related treatment; the respondent disputed the applicant’s entitlement to permanent impairment compensation, and the respondent also put credit in issue;  Held – the applicant is accepted as a credible witness, the applicant sustained primary psychological injury arising out of or in the course of his employment with the respondent; the applicant’s employment with the respondent was the main contributing factor to injury; the applicant’s injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline; the respondent is to pay the applicant’s medical and related treatment in accordance with section 60 of the 1987 Act, and the applicant’s claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of percentage whole person impairment.

Decision date: 25 February 2021 | Member: Arbitrator Jacqueline Snell

Sarcia v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 1

Claim for weekly benefits; first respondent (uninsured putative employer) disputes employment relationship; second respondent (nominal insurer) accepts liability but disputes applicant’s preinjury average weekly earning (PIAWE); Held- the applicant is a worker and the relationship between her and the first respondent was one of employee and employer; Stevens v Brodribb Sawmilling Co Pty Ltd followed; Hollis v Vabu Pty Ltd and Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney discussed; in the event the applicant was not a worker, she is in any event a deemed worker for the purposes of Clause 2, Schedule 1 of the 1998 Act; although the evidence surrounding the applicant’s preinjury earnings was suboptimal, that is not fatal to her claim for weekly compensation; Movatjou v Morad Kajnie applied; the evidence discloses on the balance of probabilities that the applicant’s preinjury earnings were greater than the maximum amount payable for weekly compensation pursuant to section 34 of the 1987 Act; the second respondent is ordered to pay the applicant weekly compensation from 25 August 2020 to date and continuing at the maximum applicable rate as indexed.

Decision date: 2 March 2021 | Member: Cameron Burge

Workers Compensation Medical Appeal Panel Decisions

Ivanovic v State of New South Wales [2021] NSWWCCMA 42

Appellant worker suffered workplace injury to lumbar spine and left shoulder; appellant had suffered injury to lumbar spine before workplace injury that required two level surgery; AMS made a deduction under section 323 based on what appellant’s impairment of lumbar spine would have been immediately before workplace injury; appellant’s presentation during examination of left shoulder inconsistent with observations AMS made of appellant outside of examination; AMS assessed appellant’s impairment of left shoulder based on impingement; Held- Appeal Panel found AMS did not make error with assessment of left shoulder but did with deduction under section 323 for prior injury; MAC revoked.

Decision date: 25 February 2021 | Panel Members: Arbitrator Marshal Douglas, Dr Drew Dixon and Dr John Ashwell | Body system: Lumbar spine and left upper extremity (shoulder)

Skinner- Smith v Smoke Alarms Australia Pty Limited [2021] NSWWCCMA 43

Appellant suffered injuries to the left hip and lumbar spine and was assessed by the AMS at 8% WPI; immediately following the provision of the MAC, the appellant asserted that his left hip condition had deteriorated, and he then underwent a total hip replacement; the appellant sought to lead further evidence on appeal contesting the manner of the assessment and reports relevant to the subsequent treatment; Held- evidence challenging the examination process rejected; Petrovic v BC Serv No 14 Pty Ltd and Lukacevic v Coates Hire Operations Ltd applied; evidence of post MAC treatment and surgery admitted; total hip replacement would probably increase WPI and amounted to a deterioration of the appellant’s condition under section 327(3)(a); Riverina Wines v Registrar of the Workers Compensation Commission applied; maximum medical improvement not attained due to recency of surgery; appeal contesting section 323 deduction of the lumbar spine rejected when reasons read as a whole; El Masri v Woolworths Ltd applied; appeal allowed in part as left lower extremity not MMI

Decision date: 25 February 2021 | Panel Members: Arbitrator John Harris, Dr Margaret Gibson and Dr Brian Noll | Body system: Lumbar spine and left lower extremity

Bunfield v State of New South Wales [2021] NSWPICMP 1

Appeal against decision of Medical Assessor; error in referral; scarring not included; no re-examination required because scar adequately described; Held- balance of the appeal unsuccessful; medical assessor correctly assessed the right hip and correctly made a section 323 deduction consistent with the evidence; appellant’s submissions no more than mere disagreement with the medical assessor; MAC confirmed.

Decision date: 2 March 2021 | Panel Members: Member Deborah Moore, Dr Greg McGroder and Dr James Bodel | Body system: Lumbar spine and right lower extremity (hip)

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