Legal Bulletin No. 20
This bulletin was issued on 16 July 2021
Issued 16 July 2021
Welcome to the twentieth 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.
Court of Appeal Decision
WORKERS COMPENSATION- referral of medical dispute to approved medical officer; assessment of permanent impairment; whether approved medical officer is confined to an assessment of the body parts and systems specified by the Registrar in the referral form.
Decision date: 14 July 2021 | Before: Basten JA, Leeming JA and McCallum JA
WORKERS COMPENSATION- failure to prove employment was main contributing factor; no challenge made to the Arbitrator’s factual findings; requirement for appellant to demonstrate error of fact and law or discretion per Raulston v Toll Pty Limited; Nothern NSW Local Health Network v Heggie; application of State Transit Authority of New South Wales v Chemler and Attorney General’s Department v K; application of Federal Broom Co Pty Limited v Semlitch on the question of causation.
Decision date: 7 July 2021 | Before: Acting Deputy President Geoffrey Parker SC
WORKERS COMPENSATION- section 350(3) of the 1998 Act.
Decision date: 8 July 2021 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Miscellaneous claims assessment; whether for the purpose of section 3.1 of the Motor Accident Injuries Act 2017 the injury has resulted from a motor accident; psychiatric injury; fear surrounding the involvement of NSW Police; suddenly hit in the rear; was in immediate fear for the safety of himself and his family; collided and rampaged through several vehicles; police had their guns out; stolen vehicle; involved in a pursuit; Post Traumatic Stress Disorder; language barrier; five telephone conferences; substantial amount of documentation; complex; chain of causation; Held- closely connected event; both temporal and causal connection; injury is a result of a dangerous situation by the driving of a motor vehicle; legal costs; exceptional circumstances.
Decision date: 28 June 2021 | Member: Terence Stern
Miscellaneous claims assessment; whether statutory benefits are payable in respect of whether an injury resulted from the motor accident under section 3.1 of the Motor Accident Injuries Act 2017; psychiatric injury; involvement of NSW Police; backseat passenger; safety of her baby and husband; extremely fearful experience; Ute stolen; pursuit; guns drawn; Post Traumatic Stress Disorder; language barrier; complexity; five telephone conferences; substantial amount of documentation; chain of causation; whole series of stressors; Held- one closely connected event; both a temporal and causal connection; the injury has resulted from a motor accident in this State; costs; exceptional circumstances.
Decision date: 29 June 2021 | Member: Terence Stern
Workers Compensation non-Presidential Member Decisions
Determination of capacity and weekly compensation where credit of the worker in dispute; where worker allegedly sighted by employee of the respondent wearing uniform of a security company at a pedestrian crossing at Bankstown Central Shopping Centre; where no documentary or other evidence that worker had performed work; where worker denied wearing a uniform or working in her sworn evidence; Goodrich Aerospace Pty Limited v Arsic considered; Held- in the absence of other compelling evidence of employment, sworn evidence of the worker and evidence of her mother preferred to the observations of the employer’s witness; award for worker for weekly compensation pursuant to section 37.
Decision date: 5 July 2021| Member: Paul Sweeney
Claim for psychological injury; whether applicant suffered injury; if so, whether whole or predominant cause was the reasonable action of the respondent with respect to discipline; Held- the applicant suffered a workplace injury to which her employment was the main contributing factor; the applicant’s injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline; the causes of the workplace injury were multi-factorial; matter remitted to the President for referral to a Medical Assessor to assess permanent impairment; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.
Decision date: 5 July 2021| Member: Cameron Burge
Ability to earn in suitable employment; employer conceded injury at conciliation conference and worker was examined by a Medical Assessor who determined that his condition had not reached maximum medical improvement; dispute re ability to earn in a short closed period; respondent’s Vocational Assessment Report did not provide sufficient detail to calculate ability to earn; applicant’s method of assessment adopted; Held- award for the applicant.
Decision date: 5 July 2021| Member: Catherine McDonald
Lump sum compensation claim; whether applicant has already exhausted his “one further claim” pursuant to Clause 11 of Schedule 8 of the Workers Compensation Regulations 2016; Held- the applicant’s previous claim for lump sum compensation was made before 19 June 2012; the present claim before the Commission is therefore the applicant’s one further claim; the applicant’s intervening claim for weekly compensation does not count as his one further claim; ADCO Constructions Pty Ltd v Goudappel discussed; matter remitted to the President for referral for medical assessment of the applicant’s upper extremities (shoulders).
Decision date: 5 July 2021| Member: Cameron Burge
Claim for permanent impairment compensation payable under section 66 of the 1987 Act for injury to right shoulder, low back, right wrist, left shoulder and scarring, with date of injury of 1 August 2017; alleged right wrist injury and consequential left shoulder injury placed in issue; Held – The applicant sustained consequential injury to his left shoulder; award for respondent relevant to injury the applicant allegedly sustained to his right wrist; the applicant’s claim for permanent impairment compensation resulting from injury the applicant sustained to his right shoulder, left shoulder, low back and scarring, with date of injury of 1 August 2017, is remitted to the President for referral to a Medical Assessor for the purposes of assessment of whole person impairment.
Decision date: 6 July 2021| Member: Jacqueline Snell
Claim for future treatment expenses commenced as application for expedited assessment; operation of section 59A of the 1987 Act; Held- no order.
Decision date: 6 July 2021| Member: Catherine McDonald
Claim for lump sum compensation: applicant fractured wrist in a fall from his ladder where he had been engaged in painting work for the respondent; liability was denied on the basis that no statutory notice or claim had been made; that the applicant was not a worker or a deemed worker; that whilst the wrist injury was not denied, the related claims for injury and/or consequential condition to the lumbar spine and to the ear, nose, throat and related structures were; Held- statutory notice had been given, as the respondent's director visited the applicant in hospital, and paid him cash within six months to reimburse medical expenses incurred; the applicant was a worker; Malivanek v Ring Group applied; related claims were all rejected; the remaining claims did not reach the section 66 threshold; award for the respondent.
Decision date: 7 July 2021 | Member: John Wynyard
Claim for weekly compensation in respect of alleged lead poisoning; whether injury; application of deeming provision in section 19; sparse and inconsistent evidence regarding periods of employment with the respondent; lack of contemporaneous evidence of lead poisoning; recent blood lead levels moderately elevated; uncertainty as to cause of neurocognitive symptoms expressed by applicant’s medicolegal experts; Held- Commission not satisfied that applicant had discharged his evidentiary onus; award for the respondent.
Decision date: 7 July 2021 | Member: Rachel Homan
Claim for cervical spine surgery; injury admitted; reasonable necessity of surgery in issue; Held- the proposed surgery is reasonably necessary; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service followed; respondent ordered to pay costs of and incidental to the proposed surgery.
Decision date: 7 July 2021 | Member: Cameron Burge
Workers Compensation Medical Appeal Panel Decisions
AMS made an assessment of 13% WPI as a result of a psychiatric injury deemed to have occurred on 10 August 2018; AMS made a deduction of 1/10th for pre-existing condition; statement of the appellant dated 3 May 2021 not received on the appeal as not probative; whether error demonstrated in respect of section 323 deduction and of PIRS categories of self-care and personal hygiene, social functioning and employability; the Panel considered that no adjustment for effects of treatment could be made in this case as there has not been a substantial or complete elimination of permanent impairment; Held- no error demonstrated; MAC confirmed.
Decision date: 1 July 2021| Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Michael Hong| Body system: Psychological/ psychiatric disorder
In an application for lump-sum compensation the worker was assessed by the respective independent medical experts as falling within DRE lumbar category IV with 2% WPI added for interference with activities of daily living; both Independent Medical Experts (IME) agreed that this should be combined with a further 3% WPI for radiculopathy and a further 4% for second and further surgeries yielding a total of 27% WPI; the worker’s IME also assessed 2% WPI in respect of scarring; the insurer’s IME assessed 0% for scarring; the AMS assessed lumbar spine impairment in similar fashion to the respective IMEs; the AMS then added a further component in respect of injury to a nerve assessed in accordance with Table 17-37 of AMA5 (lower extremity impairment) yielding a total of 28% WPI on the Combined Values Chart; the AMS assessed 0% WPI for scarring; appeal limited to inclusion of assessment of nerve damage; Held- the AMS had not allowed procedural fairness in assessing additional nerve damage beyond radiculopathy without reference to the parties; the Panel accepted that the assessment of 27% WPI in accordance with the assessments of the respective IME’s was appropriate on the evidence as was the assessment of 0% WPI in respect of scarring; MAC revoked.
Decision date: 1 July 2021| Panel Members: Member William Dalley, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: Lumbar spine and scarring
Medical dispute referred to Medical Assessor required assessment of the degree of permanent impairment of worker for injury involving both knees, lumbar spine and scarring due to surgeries for the knees; Medical Assessor assessed no permanent impairment with respect to right lower extremity and lumbar spine but provided no reasons in MAC for so doing; worker appealed; Held- Appeal Panel found MAC contained demonstrable error because of the failure of the Medical Assessor to expose path of reasoning for his assessments relating to lumbar spine and right lower extremity; worker re-examined; MAC revoked.
Decision date: 1 July 2021 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer and Dr Gregory McGroder| Body system: Left lower extremity, right lower extremity, lumbar spine, scarring and nerve damage
Injury to lumbar spine, cervical spine, right upper extremity and left upper extremity; complaint on appeal that non-verifiable radiculopathy not assessed and chronic regional pain syndrome not assessed; Medical assessor’s findings on day of examination did not allow these assessments to be made; Held- no error by Medical Assessor; MAC confirmed.
Decision date: 2 July 2021| Panel Members: Member Jane Peacock, Dr James Bodel and Dr Margaret Gibson | Body system: Lumbar spine, cervical spine, right upper extremity and left upper extremity
The appellant submitted that a section 323 deduction should have been made because the description of the ‘injury’ was described as an aggravation of an underlying condition; also the Medical Assessor (MA) obtained an incorrect history as to the period of employment; Held- the incorrect history taken by the Medical Assessor as to the period of service would not in itself constitute a reason for making or not making a section 323 deduction; the error is minor, non-contentious and easily able to be rectified and is not an error of a kind that is likely to alter the actual impairment assessed by the MA; The MA did not err in failing to make a deduction because there was no evidence to suggest any pre-existing symptomatic disorder; the assessment must have regard to the evidence as to the ‘actual consequences’ of any pre-existing condition; Cole v Wenaline Pty Ltd and other authorities considered; MAC confirmed.
Decision date: 5 July 2021 | Panel Members: Member Deborah Moore, Dr Mark Burns and Dr Brian Noll | Body system: Cervical spine
Appellant suffered psychological injury due to events that occurred during his employment with the respondent between 2005 and 2009; appellant also suffered subsequent and separate psychological injury due to several car accidents after his employment with the respondent; Medical Assessor assessed appellant had 24% WPI, but made a “one-half deduction” for subsequent psychological injury and assessed the appellant had 12% WPI resulting from work injury; appellant submitted, relying on New South Wales Department of Education v Johnson, that MAC contained a demonstrable error because Medical Assessor did not apply common law principles of causation when assessing his permanent impairment resulting from work injury and, based on common law principles of causation, his permanent impairment from work injury ought to have assessed as 24% WPI; Held- Appeal Panel agreed; MAC revoked.
Decision date: 5 July 2021| Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Julian Parmegiani| Body system: Psychological/ psychiatric disorder
Electrocution injury; Medical Assessor assessed reduced range of movement in right shoulder and chronic pain which fell short of CRPS; assessed by analogy to loss of median nerve below the forearm; criteria for assessment by analogy under paragraph 1.23 of Guidelines were fulfilled and choice of analogy was open to Medical Assessor in the exercise of his clinical judgement; Held- MAC confirmed.
Decision date: 5 July 2021| Panel Members: Member Catherine McDonald, Dr Gregory McGroder and Dr Brian Noll | Body system: Right upper extremity
Appeal against finding of 0% for psychological injury; applicant claimed bullying & harassment caused cerebrovascular accident (CVA) and psychiatric condition; Consent Order entered for the respondent regarding a claim about CVA; Medical Assessor (MA) found that applicant suffered adjustment disorder by the bullying up to the occurrence of the CVA, but that the CVA created a secondary major depression that was not compensable; Held- MA properly considered the question of medical causation following the Consent Award; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd applied; the appellant lodged no contemporaneous evidence of any social or medical disruption regarding the bullying events prior to the CVA; MA entitled to rely on clinical experience and expertise in face to face consultation; conclusion that appellant’s psychological state post CVA secondary and any impairment caused by the adjustment disorder subsumed available on the evidence; MAC confirmed.
Decision date: 7 July 2021| Panel Members: Member John Wynyard, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/ psychiatric disorder
Appeal against the deduction made by the Medical Assessor pursuant to section 323 of the 1998 Act from an agreed level of 31% WPI; deduction of 10% thereof for pre-existing asymptomatic degenerative change in the cervical spine made by the Medical Assessor; submission by appellant that no such deduction should be made; no explanation given by the Medical Assessor as to how the pre-existing condition contributed to the current level of WPI; Authorities of Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse, Cullen v Woodbrae Holdings Pty Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) referred to; finding that an explanation had not been provided as to how the pre-existing condition had contributed to the current level of post-injury impairment; finding that on the evidence, the pre-existing condition did not contribute to the current level of impairment; Held- MAC set aside and new MAC issued.
Decision date: 7 July 2021 | Panel Members: Member Brett Batchelor, Dr Richard Crane and Dr Roger Pillemer | Body system: Cervical spine
Merit Review Decision
Merit review; recovery of costs and expenses under section 8.10 of the Motor Accident Injuries Act 2017; psychology sessions; costs of interpreting services; whether the Commission has jurisdiction; fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’; Held- Commission does not have jurisdiction to review the dispute.
Decision date: 28 June 2021 | Merit Reviewer: Tajan Baba
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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