Legal Bulletin No. 27
This bulletin was issued on 3 September 2021
Issued 3 September 2021
Welcome to the twenty-seventh 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
Supreme Court Decision
WORKERS COMPENSATION - Determination of claims; complex regional pain syndrome; appeal by employee on ground of demonstrable error; where both Approved Medical Officer and Medical Appeal Panel did not consider criteria which governed the assessment of complex regional pain syndrome specified in the applicable Guidelines for the Evaluation of Permanent Impairment; administrative law; judicial review; whether Appeal Panel erred in not considering grounds of appeal; whether Appeal Panel erred by not providing sufficient reasons for its decision.
Decision date: 27 August 2021 | Before: Schmidt AJ
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; claim for statutory benefits in respect of motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitations period; statutory benefits; reasonable person in claimant’s circumstances; reliant on husband’s recommendation to seek legal advice; Held - insurer is not entitled to refuse payment of weekly payments of statutory benefits; claimant’s costs assessed in accordance with the Motor Injuries Regulation 2017.
Decision date: 13 August 2021| Member: Terence O’Riain
Assessment of non-economic loss; amputation following on pre-existing issues; factors to consider following catastrophic and traumatic injuries in assessment of non-economic loss; assessment of economic loss; material lacking in support of intention to return to full time work; general reduction in ability to earn income from small scale primary production; assessment of medical material and assessment of impacts of prior medical issues as effect and capacity for work; legal costs claimed; Held - the insured owed a duty of care to the Claimant, breached that duty of care and the Claimant sustained injury loss and damage as a result of that breach of duty; entitled to payment of legal costs.
Decision date: 23 August 2021 | Member: Hugh Macken
Workers Compensation non-Presidential Member Decisions
Claim for future surgery; injury not in issue; applicant suffers severe unrelated osteoporosis and osteopenia; whether surgery reasonably necessary or whether applicant should first undertake treatment for his osteoporosis; Held- the surgery is reasonably necessary as a result of the work injury; the treating surgeon’s views are supported by a former treating surgeon and the applicant’s IME; the treating doctor had the benefit of recent radiological studies and remained of the view the applicant’s lumbar discs could withstand the fusion surgery; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 19 August 2021| Member: Cameron Burge
Death claim; determination of dependency, apportionment and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit apportioned, order for interest from date of filing last Reply; orders in respect of payment.
Decision date: 20 August 2021| Senior Member: Glenn Capel
Whether the Commission has jurisdiction to hear applicant’s claim; whether a “dispute” in relation to amended injury; representation of parties and indemnity of respondent; Held - there is no dispute enlivened in relation to the amended date of injury relied on by the applicant; as such, the Commission has no jurisdiction to hear the matter; the respondent was indemnified by a different insurer at the amended date of injury to that which indemnified it at the date originally pleaded; as such, the present representatives of the insurer which responded to the present proceedings are not in a position to respond to the substantive claim relating to the amended date of injury; that being so, the respondent would not be afforded procedural fairness were the matter to proceed; matter dismissed.
Decision date: 20 August 2021| Member: Cameron Burge
Psychological injury; severe PTSD; prior PTSD history; separate insurer making voluntary payments regarding earlier work-related PTSD injury; applicant’s perception of events regarding safety issues; specific event where applicant threatened contractor; Held – medical evidence and applicant’s statement supports causation, corroborated by fellow worker; section 11A defence not established because respondent’s disciplinary process not reasonable; Cordina Chicken Farms Pty Ltd v Thoa Hong Le, Holmes v Civil & Civic Pty Limited, Doudie v Kinneil Cannel & Coking Coal Company Limited and State Transit Authority of New South Wales v El-Achi considered.
Decision date: 23 August 2021 | Member: Philip Young
Claim for cost of left total knee replacement; no dispute as to injury; no dispute that worker had pre-existing osteoarthritis in the knee; no dispute pre-existing condition was aggravated by a fall at work in August 2019; dispute as to whether treatment reasonably necessary because of injury; factors to be considered including worker’s age and obesity; Held – finding that treatment is reasonably necessary because of the injury.
Decision date: 23 August 2021| Member: Jill Toohey
Order sought by worker for the respondent to pay cost of right knee arthroscopy and meniscal repair; worker claims a consequential condition affecting the right knee due to altered gait and limping as a result of accepted lumbar spine injury; reference to Moon v Conmah Pty Ltd; worker claims need for surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services Pty Ltd; Held – worker has a consequential condition affecting his right knee as a result of injury to lumbar spine; work injury materially contributes to the need for surgery to the right knee; order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act.
Decision date: 24 August 2021| Member: John Isaksen
Claim for death of a worker; “worker” and deemed worker disputed; weight to be given to existence of ABN registered by the deceased; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) considered; Jones v Dunkel inferences considered; indicia of employment considered with reference to Stevens v Brodribb Sawmilling Co Pty Ltd; ultimate authority rather than actual supervision considered with respect to Humberstone v Northern Timber Mills; focus of multi-factorial employment indicia viz On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3), Hollis v Vabu Pty Ltd and as discussed in Malivanek v Ring Group Pty Ltd; Held - deceased was a worker; section 109 interest claimed; award for death benefits and interest awarded.
Decision date: 25 August 2021| Member: Michael Wright
Consideration of worker and deemed worker provisions; essential factor being a contract of service; Held - no evidence of intention to create legal relations; award for the first and third respondent.
Decision date: 25 August 2021| Member: Elizabeth Beilby
Claim for permanent impairment as a result of injury to the lumbar spine, conceded by the respondent, and the thoracic spine, not conceded; the applicant suffered from pre-existing asymptomatic Scheuermann’s disease in the thoracic and upper lumbar spine; the respondent submitted that the applicant’s evidence had raised the possibility only of injury to the thoracic spine in addition to the conceded injury to the lumbar spine; detailed examination of the medical evidence which, when considered with the applicant’s evidence, found to be sufficient for a finding that the applicant had discharged the onus on him to show that on the balance of probabilities he suffered injury in the form of aggravation of Scheuermann’s in the thoracic spine at the time he suffered injury to the lumbar spine; EMI (Australia) Ltd v Bes referred to; Held- Matter remitted to the President for referral to Medical Assessor for assessment of WPI as a result of injury to the thoracic and lumbar spine; not suitable for video assessment.
Decision date: 25 August 2021| Member: Brett Batchelor
Workers Compensation Medical Appeal Panel Decisions
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”; 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; MAC confirmed.
Decision date: 20 August 2021 | Panel Members: Member William Dalley, Dr Julian Parmegiani and Dr Patrick Morris | Body system: Psychiatric/ psychological disorder
Matter referred to the Medical Assessor (MA) for assessment under the Table of Disabilities of severe facial disfigurement and severe bodily disfigurement attributable to the injury on 2 August 1991; matter was also referred to the MA in respect of a threshold dispute for assessment of whole person impairment (WPI) of the skin attributable to the injury on 2 August 1991; MA made no assessment under the Table of Disabilities on the basis that the Table of Disabilities did not provide a clear method for assessing permanent impairment of the skin, particularly in relation to skin cancer; Held - Panel agreed with the appellant that it was not open to the MA not to provide an assessment under the Table of Disabilities and the MAC therefore contained a demonstrable error and that the MA used incorrect criteria; MAC revoked.
Decision date: 23 August 2021 | Panel Members: Member Carolyn Rimmer, Dr Paul Curtin and Dr Michael McGlynn| Body system: Skin and scarring
The medical dispute related to the degree of permanent impairment of the appellant worker from a psychiatric injury of PTSD; Medical Assessor (MA) found that a proportion of the appellant’s permanent impairment was due to a pre-existing Major Depressive Disorder that was in remission at the time of injury but which recurred due to physical injuries that the appellant also suffered in the incident from which his PTSD occurred; the MA made a deduction under section 323(1) of 50% for that pre-existing condition; appellant submitted that MA did not correctly apply section 323 because no evidence that his pre-existing condition made a difference to the outcome and further submitted that MA had not sufficiently explained why 10% deduction was at odds with evidence; Held- the Appeal Panel found that MA explained sufficiently why pre-existing condition contributed to appellant’s permanent impairment and why the proportion of that contribution was 50%; the Appeal Panel considered that the explanation the MA provided exposed why he had made the assessment; the Appeal Panel considered it was open to the MA, based on the evidence and for the reasons the MA explained, to make the assessment he did; MAC upheld.
Decision date: 25 August 2021| Panel Members: Member Marshal Douglas, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychiatric/ psychological disorder
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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