Legal Bulletin No. 21

Issued 23 July 2021

Welcome to the twenty-first 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.

Presidential Decision

Secretary, Department of Education v BB [2021] NSWPICPD 21

WORKERS COMPENSATION- Section 11A of the 1987 Act; requirement for medical opinion where several potentially causative events may have contributed to the psychological injury; Hamad v Q Catering Limited discussed and applied; application of section 34 of the 1987 Act; the maximum statutory cap on weekly payments.

Decision date: 13 July 2021| Before: Deputy President Elizabeth Wood

Workers Compensation non-Presidential Member Decisions

Dryden v Kristy Sollars t/as Inland Café [2021] NSWPIC 223

Claim for weekly benefits, medical expenses and permanent impairment compensation as a result of conceded psychological injury; respondent relied on section 11A of the 1987 Act, being action with respect to discipline; applicant disputed that injury was wholly or predominantly caused by meeting at which he was directed to undertake drug testing, that the meeting amounted to discipline, and that the respondent’s action was reasonable; dispute as to extent of incapacity for work due to physical injuries not relied on in Application; Ponnan v George Weston Foods Ltd applied; Held- the applicant’s injury was not wholly or predominantly caused by the respondent’s action; in any event action was not one with respect to discipline and was not reasonable; applicant has no capacity for work; award for the applicant for weekly benefits and medical expenses; claim for permanent impairment remitted to Medical Assessor.

Decision date: 7 July 2021| Member: Kerry Haddock

Ah-Wong v Kiama Coaches Pty Ltd [2021] NSWPIC 234

Claim for psychological injury; Department of Education and Training v Sinclair considered; Held- respondent did not discharge onus so far as reasonable conduct; finding in favour of the applicant.

Decision date: 8 July 2021| Member: Elizabeth Beilby

Trapman v KinCare Homecare Pty Ltd [2021] NSWPIC 235

Claim for medical expenses; applicant claims for cost of proposed complex, two-stage lumbar spine surgery; respondent opposes claim and alleges surgery not reasonably necessary; respondent raises changes to the recommended surgery by treating doctor as a factor in questioning reasonable necessity, along with divergence of medical opinion against a background of the applicant having a complex clinical picture; Held- it is not necessary for the treatment claimed to be the only reasonably necessary treatment available; the proposed surgery is reasonably necessary; Diab v NRMA Ltd and Rose v Health Commission (NSW) followed; the fact the treating surgeon has modified or altered his opinion with respect to the precise nature of the surgery for which approval is sought does not render the surgery unreasonable, particularly in the context of nearly a decade of conservative treatment and a changing clinical picture; respondent to pay the costs of and incidental to the proposed surgery.

Decision date: 8 July 2021 | Member: Cameron Burge

Viney v Burwood Council [2021] NSWPIC 236

Claim for weekly payments of compensation and medical expenses due to psychological injury; respondent relies upon section 11A defence that  injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and discipline; whether a Restorative Practice Process undertaken by the respondent was part of action with respect to discipline; reference to Northern NSW Local Health Network v Heggie; whether the worker has had no current work capacity or a partial incapacity for work; whether the respondent has credit for the payment of salary to the worker while suspended pending the outcome of a disciplinary investigation; reference to Kirkbride v State of NSW and Roads & Traffic Authority of NSW v Smith;  Held– action of respondent was not performance appraisal but did meet criteria for action with respect to discipline; section 11A defence not established as injury not wholly or predominantly caused by discipline; also part of action with respect to discipline not reasonable; award of weekly payments of compensation for a period of no current work capacity and then partial incapacity for work; no statutory power to re-credit the respondent for payments while worker suspended on full pay; award for medical expenses.

Decision date: 8 July 2021 | Member: John Isaksen

Randall v Carnall Removals Pty Ltd [2021] NSWPIC 237

Claim for Whole Person Impairment assessment; question of whether applicant entitled to compensation following head injury; applicant experiences severe visual disturbance although no objective abnormalities in the visual system; Held- award for the applicant.

Decision date: 9 July 2021 | Member: Elizabeth Beilby

Armstrong v State of New South Wales (Murrumbidgee Local Health District) [2021] NSWPIC 238

Applicant registered nurse; several frank shoulder and cervical spine injuries; applicant’s statements and medical histories consistent and preponderance of medical opinion supports the applicant; respondent arranged Independent Medical Expert reliant on unproduced studies and generally inconsistent on diagnosis; section 9A discussed and applied; Held- awards in favour of the applicant for weekly payments and section 60 expenses and declaration that proposed cervical spine surgery is reasonably necessary resulting from injury.

Decision date: 9 July 2021| Member: Philip Young

Bartlett v Secretary, Department of Communities and Justice [2021] NSWPIC 239

Argument between two respondents as to liability for accepted injury; frank injury in 2016 to left knee caused treatment but no time off; no treatment or complaint from June 2016 to March 2019 when symptoms in same knee began; worker doing care work requiring bending and squatting; imaging in 2016 showed pathology that had resolved by the time further imaging was taken in 2019; 2019 imaging showed degenerative change in the knee; first employer denied liability for weekly payments & section 60 expenses, claiming second employer liable through section 16 of the 1987 Act; Held- medical expert for the second respondent’s opinion that the 2016 accident caused the onset of the osteoarthritis rejected as speculation; no basis in fact for assumption that worker was symptomatic over period; no basis for finding the injury of slipping over on to the knee had the equivalent force of a head-on motor vehicle accident at moderate speed; award against second employer in favour of worker.

Decision date: 12 July 2021| Member: John Wynyard

Millgate v Nationwide News Pty Ltd [2021] NSWPIC 240

Whether the applicant’s right to recover compensation is suspended pursuant to section 119(3) of the 1998 Act; whether referral to Independent Medical Expert (IME) was appropriate pursuant to Part 7.1 of the Guidelines; where factual material raised possibility of section 11A(1) defence; where medical information available from applicant’s general practitioner; whether the referral to IME was reasonable in accordance with Part 7.7 of the Guidelines; University of New South Wales v Lee considered; Held- the referral to IME complied with Part 7.1 of the Guidelines; the applicant’s objection to the referral was not dealt with in accordance with Part 7.7 of the Guidelines; section 119(3) did not operate to suspend the applicant’s right to recover compensation; matter listed for further teleconference to deal with other notified disputes.

Decision date: 12 July 2021 | Member: Rachel Homan

Badreddine v Coles Supermarkets Australia Pty Ltd [2021] NSWPIC 241

Application for a section 60(5) declaration that proposed surgery reasonably necessary; 2017 back injury admitted; surgery recommended as other alternatives allegedly failed; applicant presented to medical experts using crutches; surveillance video over 4 years lodged; 500 pages of GP clinical notes lodged; Held- proposer of surgery unaware of contents of clinical notes demonstrating continual complaints of back pain over a decade prior to date of injury and earlier imaging; proposer unaware that applicant presentation to him on crutches in marked contrast to his normal activities as displayed in the video; medico-legal expert similarly unaware of content of clinical notes and unable to comment on surveillance as video not made available; applicant’s credit in question; Diab v NRMA Ltd applied; proposed surgery not shown to be appropriate; alternative treatment not followed; proposed surgery unlikely to actually or potentially be effective; application declined; award respondent.

Decision date: 14 July 2021| Member: John Wynyard

McCall v Fairfield City Council [2021] NSWPIC 242

Section 16 of the 1987 Act; deemed date of injury; Stone v Stannard Brothers Launch Services Pty Ltd and Alto Ford Pty Limited v Antaw considered; caution when considering medical records; Mason v Demasi considered; Jones v Dunkel and Manly Council v Byrne inferences considered; Hancock v East Coast Timber Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd consideration of fair climate for expert opinion; competing causative factors and main contributing factor to aggravation of a disease; AV v AW considered; Held- further employment as a garbage truck operator resulted in aggravation of disease of lumbar spondylosis, and that further employment was the main contributing factor; award for applicant for closed period weekly compensation.

Decision date: 14 July 2021| Member: Michael Wright

Workers Compensation President's Delegate Decision

Hanna v Sargents Pty Ltd [2021] NSWPIC 243

Work capacity dispute; whether worker had capacity for suitable employment; consideration of factors in section 32A of the 1987 Act; employer identified sales assistant role as suitable; worker had limited English capacity, had only been employed in process work in Australia, had very low functional capacity, and her age restricted her; worker had been assessed at 29% whole person impairment, meaning she was a worker with high needs; Held – worker had no capacity for suitable employment, award made for weekly payments on an ongoing basis.

Decision date: 14 July 2021| President’s Delegate: Parnel McAdam

Workers Compensation Medical Appeal Panel Decisions

Dugdale v Presbyterian Aged Care [2021] NSWPICMP 118

Worker suffering primary psychological injury appealed against the classification of the Medical Assessor (MA) in the PIRS categories of concentration, persistence and pace and employability on the basis the appellant was wrongly placed into those classes; Panel considered the evidence including history recorded by the MA and concluded that it was open to the MA to make the assessment he did in those classes; appellant submitted that the MA made a demonstrable error in making a substantial deduction for a pre-existing condition without establishing a proper and objective basis for concluding that one quarter of the current degree of WPI was due to the appellant’s pre-existing condition and the evidence demonstrated that the appellant did not have any pre-injury deficit in five of the six PIRS categories, and only a marginal increase in the category of social and recreational activities; Cole v Wenaline and Ballas v Department of Education (State of New South Wales) considered; the Panel agreed that the MA did not calculate the pre-existing impairment using the same method for calculating current impairment level and did not comply with the provisions of Paragraph 11.10 of the Guidelines that required the percentage impairment for the pre-existing impairment to be calculated using the aggregate score and median class score using the conversion table in Chapter 11; Panel considered that there is no residual power or discretion in Part 11.10 of the Guidelines to make a deduction of more than 1/10^th of the assessed WPI if the assessor cannot make an assessment of the percentage of pre-existing impairment as set out in paragraph 11.10 and the only method that can be used to make a deduction of more than 1/10^th of the assessed WPI is for the assessor to calculate pre-existing impairment in the PIRS categories and then calculate the impairment using the aggregate score and median class score; Panel considered that if this method is not used the only deduction that can be made for pre-existing impairment is 1/10^th of the assessed WPI; Held- Panel concluded that the MA, in making a deduction of more than 1/10^th of the assessed WPI for pre-existing impairment as set out in paragraph 11.10, made the assessment on the basis of incorrect criteria and this was a demonstrable error; MAC revoked.

Decision date: 8 July 2021 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Patrick Morris | Body system: Psychological/ psychiatric disorder

O’Grady v Interactive Community Care Pty Ltd [2021] NSWPICMP 119

The appellant submitted that the Medical Assessor (MA) erred in finding a diagnosis of schizophrenia ‘inconsistent with opinions expressed by other clinicians’; The MA assessed 0% WPI on the basis of this diagnosis which was unrelated to the acknowledged incidents at work which led initially to other diagnoses; Held- Panel found that the appellant presented with a clear history of schizophrenia which is a biological condition and does not occur as a result of life events; MAC confirmed.

Decision date: 12 July 2021| Panel Members: Member Deborah Moore, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychological/ psychiatric disorder

Evans v Secretary, Department of Education [2021] NSWPICMP 120

Assessment related to permanent impairment of appellant worker from psychological injury; Appellant submitted Medical Assessor applied incorrect criteria with respect to assessment of her impairment in the categories of social functioning and concentration, persistence and pace and that the MAC contained demonstrable error by virtue of the assessment of her impairment in these categories; Appellant submitted that Medical Assessor’s findings were inadequate and inconsistent with the evidence; Held- Appeal Panel held that Medical Assessor had regard to all the evidence but based on his clinical judgement gave pre-eminence to the findings he made on examination and the history he obtained, which he was entitled to do; Appeal Panel also held that it was open to the Medical Assessor to make the assessment he did with respect to the appellant’s impairment in the categories of social functioning and concentration, persistence and pace, and his assessments were supported by the reasons he provided; MAC confirmed.

Decision date: 12 July 2021| Panel Members: Member Marshal Douglas, Dr Patrick Morris and Dr Douglas Andrews| Body system: Psychological/ psychiatric disorder

Dowling v Dr Hamish Meldrum [2021] NSWPICMP 121

Appellant suffered injury to her lower back on 30 July 2001 that also affects her right and left legs at or above the knees; assessment under the Table of Disabilities; appellant submitted Medical Assessor made no reference to a 2018 CT scan and did not explain why his assessment of her impairment of her back and loss of the legs at or above the knees was different from assessments made by other IMEs and that, consequently, the MAC contained a demonstrable error; Held- Appeal Panel found that Medical Assessor had regard to the 2018 CT scan but it was not relevant to the assessment of the appellant’s impairment and losses, which was done by reference to the symptoms she reported and the Medical Assessor’s findings from examination; nor was the 2018 CT scan relevant to the deduction to be made for an earlier injury; whereas earlier radiological investigations done in 2004 were relevant and the Medical Assessor explained in the MAC how so; Medical Assessor not required to explain why his assessments differ from other IME’s assessment, but is required to explain the path of his reasoning for his assessment, which he did; MAC confirmed.

Decision date: 13 July 2021| Panel Members: Member Marshal Douglas, Dr Brian Noll and Dr Margaret Gibson | Body system: Lumbar spine, left lower extremity and right lower extremity

State of New South Wales (South Western Sydney Local Health District) v Seymour [2021] NSWPICMP 122

Appeal against the assessment of 1/10 deduction pursuant to section 323 of the 1998 Act in assessing impairment arising from injury to the right shoulder; the respondent worker had suffered an earlier fracture to the right shoulder approximately seven years prior to the subject injury; alleged failure to consider radiological evidence of the previous fracture; Held- the MAC, read as a whole, established that the AMS had noted the earlier fracture but had appropriately weighed this against evidence of return to normal use and appropriately concluded that a 1/10 deduction accorded with the evidence; Mifsud v Campbell applied; MAC confirmed.

Decision date: 13 July 2021 | Panel Members: Member William Dalley, Dr James Bodel and Dr David Crocker | Body system: Right upper extremity

Woolworths Limited v Thakur [2021] NSWPICMP 123

Section 323 deduction; presence of degenerative changes in cervical and thoracic spines did not warrant a deduction; no evidence they were pre-existing; Vitaz v Westform (NSW) and Ryder v Sundance Bakehouse considered; Held- pre-existing condition in lumbar spine did warrant a deduction but one-tenth was appropriate; findings made by Medical Assessor did not amount to radiculopathy; MAC confirmed.

Decision date: 14 July 2021| Panel Members: Member Catherine McDonald, Dr John Ashwell and Dr Philippa Harvey-Sutton | Body system: Cervical spine, thoracic spine, lumbar spine and right lower extremity.

Merit Review Decisions

ABY v AAI Limited t/as GIO [2021] NSWPICMR 27

Merit Review; whether for the purposes of section 8.10 of the Motor Accidents Injuries Act 2017 the costs incurred by the claimant are reasonable and necessary; two medical assessments undertaken in relation to minor injury disputes; one relating to physical injury; the second relating to psychological/psychiatric injury; claimant submitted there is no express provision prohibiting the Claimant from being entitled to legal costs if finding of ‘minor’ injury or adverse finding; Insurer submitted the determinations of the Assessors were commensurate with internal review decision and claim was without merit; complicated medical history; claimant’s application had support from treating practitioners; Held- claimant is entitled to recover from the Insurer her reasonable and necessary legal costs.

Decision date: 5 July 2021 | Merit Reviewer: Brett Williams

ACB v IAG Ltd t/as NRMA Insurance [2021] NSWPICMR 28

Merit Review; whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017, costs and expenses incurred by the claimant are reasonable and necessary; Medical Assessor assessed claimant for two treatments; Claimant’s lawyers issued two tax invoices in relation to the two types of treatment disputed; Insurer submitted that as there was only one medical dispute in relation to both treatments, the insurer need only pay one tax invoice; Held- satisfied that claimant’s lawyers would not have been required to do significant separate work to prepare the application regarding the two treatments; reviewable decision affirmed.

Decision date: 8 July 2021 | Merit Reviewer: Terence O’Riain

ACC v AAI Limited t/as AAMI [2021] NSWPICMR 29

Merit Review; Claimant sought to recover from the Insurer legal costs in connection with five applications for medical assessment lodged on her behalf; each application was about a medical assessment matter for the purposes of Part 7 of the Motor Accident Injuries Act 2017; claimant submitted she was entitled to maximum allowed by the regulations per claim; insurer submitted that exceptional circumstances did not exist and each of the applications relied on the same documents; taken into account that legal services provided to the claimant had to be translated; Held- not satisfied that exceptional circumstances exist; the Claimant’s reasonable and necessary costs in connection with each of the five medical assessments is $400 plus GST.

Decision date: 8 July 2021 | Merit Reviewer: Brett Williams

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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