Legal Bulletin No. 29
This bulletin was issued on 17 September 2021
Issued 17 September 2021
Welcome to the twenty-ninth 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.
Motor Accidents non-Presidential Member Decisions
Whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of statutory benefits after 26 weeks as claimant at fault; collision reconstruction report; claimant changed lanes on M4 motorway in the path of insured prime mover truck; Held - claimant found to be wholly at fault; recovery of legal costs; no requirement to provide itemised list of work to recover regulated costs.
Decision date: 28 July 2021| Member: Elizabeth Medland
Assessment of damages under Division 7.6, subdivision 2 of the Motor Accident Injuries Act 2017 (MAI Act); economic loss; claimant suffered fracture of the humerus and left shoulder, neck injury and psychological sequelae; subsequent unrelated motor accident; extent subsequent accident contributed to economic loss and loss of earning capacity; most likely future circumstances but for the accident; Held – damages assessed according to sub-sections 7.36 (3) and 7.36 (4) of the MAI Act.
Decision date: 3 August 2021| Member: Elizabeth Medland
Intersection accident; insured driver making a right-hand turn; claimant proceeding straight ahead; factual dispute about traffic lights; Held - claimant wholly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; no exceptional circumstances; claimant’s costs allowed in accordance with the regulated maximum.
Decision date: 27 August 2021| Member: Brett Williams
Miscellaneous claims dispute; was the claimant wholly at fault for the accident; section 3.28 of the Motor Accident Injuries Act 2017; claimant moving into left-hand lane alleged an unidentified vehicle pushed her vehicle into collision with the insured’s vehicle; insured driver denied the presence of unidentified vehicle; contributory negligence; section 5R of the Civil Liability Act 2002; Held – having regard to consistency of Claimant’s evidence satisfied unidentified vehicle collided with the left-hand side of the claimant’s vehicle pushing it into collision with the insured vehicle; claimant not wholly at fault; claimant failed to exercise reasonable care for her own safety; claimant contributed to the cause of accident by failing to keep a proper lookout and by moving into the left lane when it was not safe to do so; contributory negligence assessed at 50%; contributory negligence less than 61%; claimant not wholly or mostly at fault for accident; Manley v Alexander applied; Podrebersek v Australian Iron and Steel applied; claimant self-represented so costs not apply.
Decision date: 27 August 2021| Member: Susan McTegg
Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement under section 6.23 of the MAI Act; claimant self-represented; settlement of $43,500 for past loss of earnings and future loss of earning capacity; injury; right shoulder dislocation; good recovery and return to full duties within 6 months; evidence suggested chance of arthritis and surgery long term; cushion or buffer for future loss of earning capacity; Held - settlement approved; no matters of principle.
Decision date: 3 September 2021| Member: Belinda Cassidy
Miscellaneous assessment matter; the claimant was crossing the road at intersection on his electric scooter; insured driver was travelling in a westerly direction along Captain Cook Drive approaching the intersection; collision between the claimant and the insured driver occurred at the intersection; at all times when the claimant was crossing the road he had a red ‘don’t walk’ pedestrian signal facing him; speed limit 60km/h; insured driver travelling below the speed limit; insured driver faced with a solid green light; claimant’s scooter collided with the driver’s side of the insured driver’s vehicle; whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Held - insured driver was keeping a proper lookout; insured driver did not breach the duty of care owed; accident not caused by the fault of the insured driver; accident caused wholly by the fault of the claimant.
Decision date: 7 September 2021| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Undisputed back injury; claim for consequential right ankle condition disputed; it is well settled that it is not necessary in order to succeed in respect of the consequential condition in the right ankle that is alleged here, to establish “injury” to her right ankle within the meaning of section 4 of the Workers Compensation Act 1987 but that the symptoms and restrictions in her right ankle have resulted from her lumbar spine injury; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held - evidence weighed in the balance and it was determined on the balance of probabilities that the consequential condition in right ankle resulted from back injury; award for the applicant.
Decision date: 2 September 2021| Member: Jane Peacock
Claim for weekly benefits and medical expenses against uninsured respondent, relying on sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); Workers Compensation Nominal Insurer joined as second respondent; dispute as to worker/deemed worker not maintained; credit issues with respect to both applicant and first respondent, due to inconsistent statements; lack of contemporaneous evidence of injury; treating general practitioner recorded no history of work-related injury until 16 months after applicant ceased work with the first respondent; inconsistent medical histories; Brines v Westgate Logistics Pty Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Paric v John Holland (Constructions) Pty Ltd and Nguyen v Cosmopolitan Homes applied; Held - no sense of actual persuasion that the applicant sustained injury arising out of or in the course of his employment with the first respondent, due to his inconsistent statements and lack of contemporaneous evidence of injury; award for the first and second respondents.
Decision date: 2 September 2021| Member: Kerry Haddock
Claim for permanent impairment compensation for alleged injury to lumbar spine caused by nature and conditions of employment; whether the applicant suffered workplace injury or whether lumbar spine condition is purely attributable to pre-existing degenerative changes; Held - the applicant suffered a workplace aggravation of his pre-existing degenerative condition in the lumbar spine, to which his employment was the main contributing factor (section 4(b)(ii) Workers Compensation Act 1987); in matters involving aggravations, it is the cause of the aggravation which must be examined, not the cause of the underlying condition which has suffered the aggravation; Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, Ariton Mitic v Rail Corporation of NSW followed; matter remitted to the President for referral to a medical assessor to determine the applicant’s degree of permanent impairment to his lumbar spine.
Decision date: 2 September 2021| Member: Cameron Burge
Claim for carpal tunnel release surgery for disputed left carpal tunnel syndrome consequential to accepted right wrist injury; left carpal tunnel alleged to be consequential condition as a result of overuse to compensate for the right wrist injury; Kooragang Cement Pty Ltd v Bates, Tubemakers v Fernandez and EMI Ltd v Bes considered; Held - found relevant causal relationship established and right wrist injury made material contribution to the need for the left carpal tunnel release surgery; award in favour of the applicant.
Decision date: 2 September 2021| Member: Michael Wright
Claim for weekly payments of compensation for partial incapacity for a closed period of 15 weeks for injury to cervical spine and right shoulder; respondent concedes injury to right shoulder but disputes injury to cervical spine; claim for injury to cervical spine based upon section 4 (b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; Held – worker’s employment was main contributing factor to aggravation of degenerative disease in the cervical spine; order for weekly payments of compensation pursuant to section 37 of 1987 Act.
Decision date: 2 September 2021| Member: John Isaksen
Claim for proposed left knee surgery; dispute regarding injuries to knees and/or consequential condition in the left knee; prior right knee injury; accepted injuries to shoulders; worker claimed that focus of treatment was on his shoulder injuries and he gave little notice to the alleged injuries to his knees; lack of complaints in treating doctors’ notes; failure to mention potentially significant novus actus in his statement and to independent medical examiners; scan taken after the incident showed meniscal pathology; Kooragang Cement Pty Ltd v Bates, Lyons v Master Builders Association of NSW Pty Ltd, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga and Hancock v East Coast Timbers Products Pty Ltd discussed and applied; Held - worker failed to discharge onus; employer not liable to pay for proposed surgery; award for the respondent.
Decision date: 3 September 2021 | Senior Member: Glenn Capel
Accepted injury to the right shoulder; whether the worker suffered a frank injury to his cervical spine; whether the worker suffered a consequential condition to the left shoulder as a result of the accepted right shoulder injury; value of contemporaneous evidence; delayed complaints of left shoulder symptoms; Onassis and Calogeropoulos v Vergottis, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), Kumar v Royal Comfort Bedding Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timbers Products Pty Ltd, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor and Munce v Thomson Cool Rooms Pty Ltd considered and applied; Held - the worker suffered injuries to the right shoulder and cervical spine arising out of or in the course of his employment with the respondent within the meaning of sections 4(a) and 9A of the Workers Compensation Act 1987; the worker suffered a consequential injury to his left shoulder as a result of the accepted injury to his right shoulder.
Decision date: 3 September 2021| Member: Anthony Scarcella
Section 145 of the Workers Compensation Act 1987 repayment; whether applicant liable to repay first respondent; whether third respondent was a worker or independent contractor, and whether retained by the applicant or by second respondent, which held a relevant policy of insurance; whether applicant suffered injury as alleged, and whether that injury gave rise to incapacity and the payment of reasonably necessary medical expenses; whether fourth respondent had liability as head contractor of the site where alleged injury took place; Held - the third respondent was a worker employed by the applicant; Stevens v Brodribb Sawmilling Co Pty Ltd followed; in the event the applicant was not a worker, he was in any event a deemed worker; the third respondent suffered an injury in the course of his employment with the applicant on 7 December 2019 which gave rise to payments of weekly compensation and medical expenses; the first respondent made compensation payments to the third respondent in the sum of $40,141,10; the applicant is to reimburse the first respondent for the payments made; there is no liability in the fourth respondent as head contractor.
Decision date: 6 September 2021| Member: Cameron Burge
Dispute as to whether left knee replacement surgery was reasonably necessary treatment as a result of workplace injury in 2020; prior history of symptomatic degenerative changes in the knee; Held - award for applicant; finding that the work injury had materially contributed to the need for the knee replacement surgery now and that the surgery was reasonably necessary treatment as a result of the work injury; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd applied.
Decision date: 7 September 2021| Principal Member: Josephine Bamber
Section 60 of the Workers Compensation Act 1987 (1987 Act) expenses for right total knee replacement; severe degenerative change in knee aggravated by an injury in 2019; medical evidence with respect to material contribution; Murphy v Allity Management Services Pty Ltd considered; requirements for expert evidence; South West Sydney Area Health Service v Edmonds considered; Held - award for the applicant pursuant to section 60 of the 1987 Act.
Decision date: 7 September 2021| Member: Catherine McDonald
Claim for cost of future surgery to left shoulder and left knee; whether admitted workplace injuries materially contributed to the need for the medical necessary surgeries, or whether the need for surgery was brought about as a result of a supervening, non-work-related motor vehicle accident; Held - the applicant must establish, applying the common-sense test of causation as set out in Kooragang Cement Pty Ltd v Bates that the treatment is reasonably necessary as a result of the injury; a work injury need not be the only or even a substantial cause of the need for the relevant treatment before the cost of it is considered reasonable under section 60 of the Workers Compensation Act 1987 (1987 Act); Murphy v Allity Management Services Pty Ltd and Calman v Commissioner of Police followed; the shoulder and knee injuries in issue fall broadly within the second category of cases described by Malcolm CJ in The State Government Insurance Commission v Oakley as applied by the NSW Court of Appeal in Secretary, NSW Department of Education v Johnson; as such, the accepted injuries materially contributed to the need for the surgeries; respondent ordered to pay costs of and incidental to the proposed surgeries.
Decision date: 7 September 2021| Member: Cameron Burge
Workers Compensation Medical Appeal Panel Decisions
Appeal against finding of 9% WPI for loss of hearing by applicant born in 1940 and working constantly in noisy employment as a machinist for 53 years; whether low tone frequency of 0.5kHz binaural hearing loss; whether adequate reasons given; Held – Medical Assessment Certificate revoked; reasons inadequate and evidence consistent with intense exposure to noise for a significant duration; fresh certificate for 11% issued.
Decision date: 2 September 2021 | Panel Members: Member John Wynyard, Dr Brian Williams and Dr Joseph Scoppa| Body system: Hearing
Appeal against finding 14% WPI; whether Medical Assessor (MA) had erred in not applying chapter 4.27 of the Guides; whether MA had erred in not explaining further his finding that rotational range of motion in the cervical spine was “almost normal”; Held - chapter 4.27 of the Guides had no application as the MA had not found there to be any radiculopathy; the ground advanced was that there was imaging that showed pathology at the C5/6 level and that the terms of chapter 4.27 by the use of the words “in general” conferred a discretion as to whether the MA had to apply the criteria therein described strictly however the MA expressly found there were no signs of radiculopathy, acknowledging the existence of the imaging referred to, the argument was not relevant to the facts before the Panel; the “almost normal” finding applied to a symmetrical range of motion and the MA stated categorically on more than one occasion that there was no asymmetric range of motion;Medical Assessment Certificateconfirmed.
Decision date: 3 September 2021 | Panel Members: Member John Wynyard, Dr Mark Burns and Dr Drew Dixon| Body system: Cervical Spine, left upper extremity and right upper extremity
Assessment of impairment arising from two injuries; parties agreed on dates of impairment for frank injury and nature and conditions injury; Medical Assessor’s errors in calculation corrected; Held – Medical Assessment Certificate revoked.
Decision date: 7 September 2021 | Panel Members: Member Catherine McDonald, Dr James Bodel and Dr Gregory McGroder| Body system: Cervical spine and left upper extremity
Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to all the Psychiatric Impairment Rating Scale categories except self-care and personal hygiene; the Panel agreed that the MA erred with respect to social and recreational activities and travel having regard to Ballas v Department of Education; the balance of the MA’s assessments was open to him on the evidence; Held - Medical Assessment Certificate revoked.
Decision date: 7 September 2021 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier and Dr Michael Hong| Body system: Psychological/Psychiatric
The Medical Assessor (MA) stated that the physical examination performed by the worker’s independent medical expert (IME) had been performed “within the directions of the AMA5 guides except for the left carpometacarpal (CMC) joint which does not have an active range of motion assessment”; the appellant worker submitted that the MA had fallen into error in so far as he had not accepted that CMC joint impairment arising from range of motion was not to be assessed; Held - the tables provided by the MA clearly related to the CMC Joint, although not labelled as such; the measurements assessed were also set out in the worksheets attached to the Medical Assessment Certificate (MAC); the error by the MA in stating that the appellant worker’s IME had not assessed the independent range of motion when the relevant report established that the IME had in fact performed the necessary measurement, did not affect the assessment by the MA which was performed in accordance with the guidelines; MAC confirmed.
Decision date: 7 September 2021 | Panel Members: Member William Dalley, Dr John Brian Stephenson and Dr Phillipa Harvey-Sutton | Body system: Right upper extremity, left upper extremity and scarring
Appeal by worker on the grounds that the Medical Assessor (MA) had incorrectly assessed him in that he found that radiculopathy was not present in accordance with the criteria in paragraph 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and that the modifiers in Table 4.2 of the Guidelines, adding 3% WPI in respect of spinal surgery with residual symptoms and radiculopathy, were not therefore applied; the appellant also alleged that he should have been assessed at 1% WPI in respect of scarring following back surgery pursuant to the table for the evaluation of minor skin impairment (TEMSKI -Table 14.1 of the Guidelines); Held – finding that the MA was correct in his assessment that on his examination of the appellant, neither a major nor a minor criterion should be found such as to enable a conclusion that radiculopathy was present; therefore Table 4.2 modifiers could not apply; finding that the uncomplicated scar for a standard surgical procedure was correctly assessed at 0% WPI in accordance with paragraph 14.6 of the Guidelines and TEMSKI; Medical Assessment Certificate confirmed.
Decision date: 7 September 2021 | Panel Members: Member Brett Batchelor, Dr Tommasino Mastroianni and Dr John Ashwell | Body system: Lumbar spine and scarring
Motor Accidents Merit Review Decision
Merit review; section 8.10 of the Motor Accident Injuries Act 2017; cost; request for parties’ submissions; interpreter (Mandarin); medical dispute; lack of response; interim decision notifying the parties in accordance with clause 7.131 of the Motor Accident Guidelines 6th version (the Guidelines); notify the parties of intention to dismiss the application under clause 7.130(c) and (d) of the Guidelines; failure to comply with directions; ceasing to pursue dispute; decision on the papers; dismissal; Held - decision affirmed.
Decision date: 25 August 2021| Merit Reviewer: Terence O’Riain
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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