Legal Bulletin No. 23
This bulletin was issued on 6 August 2021
Issued 6 August 2021
Welcome to the twenty-third 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
WORKERS COMPENSATION- application to rely on fresh or additional evidence pursuant to section 352(6) of the 1998 Act, failure to give notice of injury in compliance with section 254 of the 1998 Act; ‘special circumstances’, failure to claim compensation in compliance with section 261 of the 1998 Act; ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to section 4 of the 1987 Act, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons.
Decision date: 23 July 2021| Before: Deputy President Michael Snell
Workers Compensation non-Presidential Member Decisions
Claim for weekly benefits and medical expenses by exempt worker, as a result of accepted psychological injury; applicant has been compensated for 22% whole person impairment; and for pain and suffering; respondent relied on evidence of independent medical examiner described by Approved Medical Specialist as biased and an outlier; submitted the applicant is partially incapacitated for work and sought to rely on decision in Cordina Chicken Farms Pty Ltd v Thoa Hong Le to reduce award of weekly benefits to nominal amount, due to physical injury also sustained in employment with respondent; Lawarra Nominees Pty Ltd v Wilson, Moran Heath Care Services v Ivy Alice Woods and Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir considered; Held- the respondent was granted leave to raise the issue of the applicant’s physical injury as a basis for reducing any award of weekly benefits for partial incapacity; the applicant has at all relevant times been totally incapacitated for work; award for the applicant of weekly benefits pursuant to sections 36 and 37 of the 1987 Act; award for the applicant pursuant to section 60 of the 1987 Act; respondent to pay applicant’s costs as agreed or assessed; increase for complexity of 15% of each party’s costs.
Decision date: 23 July 2021 | Member: Kerry Haddock
Claim pursuant to section 60 of the 1987 Act for the costs of and incidental to a proposed L4/5 disc replacement procedure; claim for weekly compensation discontinued; accepted injury in the nature of an aggravation of pre-existing lumbar pathology; desktop surveillance of applicant showed him participating in kayaking, fishing, boating, surfing and riding rollercoasters after the injury; whether proposed surgery reasonably necessary as a result of injury; Held- respondent’s medicolegal expert did not engage sufficiently with radiological investigations, EMG studies and discogram revealing pathology intended to be treated by the proposed procedure; award in favour of the applicant.
Decision date: 26 July 2021 | Member: Rachel Homan
Claim for permanent impairment compensation as a result of accepted injury to right shoulder and consequential condition of left shoulder; change of duties after two surgical procedures to right shoulder; respondent disputed consequential condition and that injury to the left shoulder was due to the nature and conditions of employment; applicant did not rely on nature and conditions of employment, but on consequential condition only; Kumar v Royal Comfort Bedding and Kooragang Cement Pty Ltd v Bates considered; Held- the applicant sustained a consequential condition of his left shoulder as a result of accepted injury to his right shoulder; matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to right upper extremity (right shoulder) and left upper extremity (left shoulder).
Decision date: 27 July 2021 | Member: Kerry Haddock
Claim for lump sum compensation pursuant to section 66 of the 1987 Act in respect of alleged primary psychological injury; accepted physical injury; applicant alleged bullying and harassment on return to work; lack of medical opinion on main contributing factor test; AV v AW and State Transit Authority of New South Wales v El-Achi applied; whether primary or secondary psychological injury; Cannon v The Healthy Snack People Pty Ltd applied; Held- applicant sustained a primary psychological injury; matter remitted to President for referral to a Medical Assessor for assessment of the degree of permanent impairment.
Decision date: 27 July 2021| Member: Rachel Homan
Claim for lump sum and section 60 expenses; owner/operator of truck driving business injured whilst purchasing goods from Coles; whether applicant had finished work for the day, or had another job to do; applicant alleged a further job in later statements, with a corroborative statement; further job was for nephew; evidentiary lacuna suggestive of recent invention; applicant in cross-examination produced contemporaneous email to investigator regarding the further job; whether section 11 applied; Held-contemporaneous email confirmed no recent invention; applicant on a section 11 recess; Britt v Coady considered and applied.
Decision date: 27 July 2021 | Member: John Wynyard
Claim for left hip surgery, section 60 expenses and weekly benefits; applicant employed for 23 years with Council doing arduous work; onset of hip symptoms agreed to have been caused by osteoarthritis following adolescent injury; applicant unaware until onset of symptoms; section 289A(4) application allowed to raise injury and related issues; application to admit 212 pages of factual investigation dated the day before the hearing; application for adjournment by respondent to serve report of its medico legal expert; application by respondent after matter reserved to reopen and rely on said medico-legal expert: Held- section 289A application allowed as parties clearly prepared for issues thereby raised (ex tempore during hearing); application to admit factual investigation refused as served day before hearing with no notice to Commission or applicant (ex tempore during hearing); application for adjournment refused (ex tempore); application to reopen refused on consideration of relevant criteria; no challenge to reasonable necessity for surgery; aggravation of underlying condition found pursuant to section 4(b)(ii); award applicant for each claim.
Decision date: 28 July 2021| Member: John Wynyard
Claim for weekly and permanent impairment compensation as a result of an accepted psychological injury; respondent denies liability on basis of “discipline” within section 11A; where fellow employee complained that worker used racist and offensive language at morning tea; where respondent investigated the complaint; where respondent prohibited worker from communicating with other employees who were present at morning tea during the investigation; Sinclair v The Department of Education considered; Held- that the respondent’s action not reasonable; while exemplary in many respects the blanket prohibition on communicating with other employees deprived the worker of the opportunity to put his case at its highest; award for worker.
Decision date: 28 July 2021 | Member: Paul Sweeney
Workers Compensation Medical Appeal Panel Decisions
Appeal on grounds of demonstrable error and incorrect criteria in respect of assessment of a psychological injury; whether the Medical Assessor erred in his assessment of the PIRS categories for Self-Care and Personal Hygiene, and Social functioning, in failing to make an adjustment for the effects of treatment and in failing to give reasons; Vitaz v Westform (NSW) Pty Limited and Ors and Wingfoot Australia Partners Pty Ltd v Kocak discussed and applied; Held- MAC confirmed.
Decision date: 23 July 2021| Panel Members: Senior Member Glenn Capel, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological/psychiatric disorder
Appellant submitted that the Medical Assessor (MA) erred in making a deduction pursuant to section 323 of the 1998 Act; Held- the Panel agreed; there was no compelling evidence that the pre-existing condition noted in the scans contributed to the impairment; the MA fell into error by assuming that, because there was some evidence of degenerative changes noted on the radiological reports, a deduction ought to be made, contrary to the principles established in Cole v Wenaline Pty Ltd; MAC revoked.
Decision date: 23 July 2021| Panel Members: Member Deborah Moore, Dr Mark Burns and Dr J Brian Stephenson| Body system: Lumbar spine and scarring
Appellant submitted that the Medical Assessor (MA) erred in failing to find he suffered from radiculopathy allegedly against the weight of evidence; the MA accepted that there had been symptoms and signs of radiculopathy in the past but none at the time of the assessment; an MA is required to make an assessment on the day of the examination; in order to conclude that radiculopathy is present one must have two or more criteria one of which must be a major criteria; the MA made specific reference to the definition of radiculopathy in Item 4.27 of the Guidelines; Held- MAC confirmed.
Decision date: 23 July 2021| Panel Members: Member Deborah Moore, Dr Tommasino Mastroianni and Dr J Brian Stephenson | Body system: Cervical spine and lumbar spine
Appellant worker asserted error with respect to assessment of impairment with respect to psychological injury; the appellant submitted that the Medical Assessor had erred in the assessment of impairment in the area of function “concentration, persistence and pace” and by failing to assess the effects of treatment; Held- the Medical Assessor had considered the evidence and was entitled to rely on his own assessment upon examination where his conclusion differed from that of the respective independent medical experts; Ferguson v State of New South Wales applied; although the appellant worker’s independent medical expert had assessed an additional 1% WPI for the effects of treatment, there was no credible evidence of “apparent substantial or total elimination” of the impairment as a result of treatment; the assessment by the Medical Assessor of 19% WPI as a result of injury spoke for itself and there was no need for the Medical Assessor to comment on the effects of treatment in the absence of any beneficial effect.
Decision date: 26 July 2021 | Panel Members: Member William Dalley, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychological/ psychiatric disorder
Employer appealed against 15% WPI assessment for left upper extremity (10%) and back (6%); appeal confined to the back; whether DRE II category finding was a demonstrable error in the absence of most criteria set out in AMA5; Held- AMA5 Table 15.3 confers a discretionary power on a Medical Assessor by the use of the word ”may”; individual criteria therein named not exclusive; criteria for DRE I assessment not appropriate to worker; Table 4.7 of the Guides considered where Medical Assessor unable to distinguish between two DRE categories; MAC confirmed.
Decision date: 27 July 2021 | Panel Members: Member John Wynyard, Dr Margaret Gibson and Dr Gregory McGroder| Body system: Lumbar spine and left upper extremity
Appeal against assessment of 7% WPI for lumbar spine and 0% WPI for either lower extremity; additional evidence tendered and rejected; statement of worker’s daughter lacking in prima facie probative value; Lukacevic v Coates Hire Operations Pty Ltd applied; further report by medico-legal expert rejected as offending public policy; whether earlier report of medico-legal expert should have been followed by the Medical Assessor; Held- Medical Assessor not required to discuss all diagnoses before him; failure to discuss a particular diagnosis does not lead to an inference that the Medical Assessor failed to consider it; MAC confirmed.
Decision date: 27 July 2021 | Panel Members: Member John Wynyard, Dr Margaret Gibson and Dr John Ashwell| Body system: Right lower extremity, left lower extremity and lumbar spine
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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