Legal Bulletin No. 32
This bulletin was issued on 8 October 2021
Issued 8 October 2021
Welcome to the thirty-second 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.
Supreme Court Decisions
ADMINISTRATIVE LAW — State Insurance Regulatory Authority; Motor Accidents Compensation Act 1999 (NSW); review of decisions of the Medical Assessor and Proper Officer; ground of review other than procedural fairness; adequacy of reasons; no evidence; decision set aside.
Decision date: 24 August 2021 | Before: Harrison AsJ
ADMINISTRATIVE LAW – judicial review; where Proper Officer of the State Insurance Regulatory Authority refused application for review of medical assessment; whether Proper Officer fell into jurisdictional error by misconstruing the nature of the jurisdiction committed to her under section 63(3) of the Motor Accidents Compensation Act 1999.
Decision date: 6 October 2021 | Before: McCallum JA
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; claimant riding a motorised scooter at intersection; inconsistent versions of events as to path of travel; claimant charged by NSW Police; evidence of insured driver preferred; Held - determined that the claimant was at fault and insurer entitled to cease payments of statutory benefits after 26 weeks.
Decision date: 16 June 2021| Member: Elizabeth Medland
Approval; 56 year old male; rear end collision; injury to the right knee resulting in tear of the medial meniscus; injury to neck; injury to back; 1% whole person impairment; past economic loss; self-employed undertaking maintenance and handyman work; total and partial incapacity for work; fit for pre-accident employment but to avoid repetitive squatting or heavy lifting; modest buffer for future impairment of earning capacity;no entitlement to recover damages for cost of retraining; section 4.5 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 13 July 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 now 20 years of age; casual employee at Hungry Jacks; passenger in vehicle which collided with tree before going over embankment; complex clavicle fracture; no entitlement to non-economic loss as no evidence whole person impairment greater than 10% following further review by occupational physician; damages for past economic loss allowed on basis total incapacity for work until 1 May 2020 when claimant not working due to wish to provide care for child; unfit for work involving lifting or above shoulder work or work requiring repetitive use of the right arm; buffer for future loss of earning capacity of $100,000 acceptable and within the range likely to be awarded; Held – settlement approved.
Decision date: 23 July 2021| Member: Susan McTegg
Motor Accident Injuries Act 2017; claim for damages for 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; limitation period; damages; reasonable person in claimant’s circumstances; reliant on solicitor’s legal advice; Held – late claim can be made as claimant had a full and satisfactory explanation for delay ; claim put on “stood over list” as not ready due to delay from medical assessment; Procedural Direction MA1.
Decision date: 9 September 2021| Member: Ray Plibersek
Motor Accident Injuries Act 2017; claim for damages for 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; limitation period; damages; reasonable person in claimant’s circumstances; reliant on solicitor’s legal advice; husband and wife in accident; Held – late claim can be made as claimant had a full and satisfactory explanation for delay ; claim put on “stood over list” as not ready due to delay from medical assessment; Procedural Direction MA1.
Decision date: 10 September 2021| Member: Ray Plibersek
Workers Compensation non-Presidential Member Decisions
Findings regarding injury; competing medical opinion and challenge to applicant’s credit; Held - the applicant suffered an injury within the meaning of sections 4 and 9A of the Workers Compensation Act 1987 (1987 Act); the applicant is entitled to weekly compensation as set out in the Application to Resolve a Dispute subject to section 52 of the 1987 Act; there is to be a general order pursuant to section 60 in respect of the reasonable treatment expenses for the applicant.
Decision date: 23 September 2021| Member: Elizabeth Beilby
Psychological injury; proceedings concerned allegation of injury under section 4(b)(ii) of the Worker Compensation Act 1987 in circumstances where allegation of injury under section 4(b)(i) had been run in prior proceedings and determined in the respondent’s favour; whether an Anshun estoppel applied; Fourmeninapub Pty Ltd v Booth and Secretary, Department of Communities & Justice v Miller & Anor considered; each case to be decided on its own facts; Held – Anshun estoppel did not apply; matter remitted for referral to a Medical Assessor in respect of the lump sum claim.
Decision date: 23 September 2021| Member: Jane Peacock
Claim for cost of right total hip replacement; accepted injury to the right hip in fall at work on 31 July 2021; accepted exacerbation of previous arthritic change; dispute as to whether the proposed surgery is reasonably necessary as a result of that injury; Held - award for the applicant; finding that employment had materially contributed to the need for the surgery now; finding that surgery is reasonably necessary treatment as a result of the workplace injury; additional claim that the injury was exacerbated by the nature and conditions of the applicant’s employment as a flight attendant rejected; finding that applicant had not discharged his onus in respect of the additional claim.
Decision date: 23 September 2021| Member: Jill Toohey
Claim for weekly compensation and section 60 of the Workers Compensation Act 1987 (the 1987 Act) expenses in respect of disputed psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal; extent of incapacity; only medical evidence available is from applicant’s general practitioner; evidence of participation in drag performances during period of alleged incapacity; whether proper foundation for the acceptance of applicant’s medical evidence; Held - the evidence of the applicant’s general practitioner as to injury and incapacity accepted; award for weekly compensation pursuant to section 37(1) of the 1987 Act; general order for section 60 expenses.
Decision date: 27 September 2021| Member: Rachel Homan
Claim for hearing aids; no dispute regarding noisy employment and last noisy employer; dispute in respect of notice of injury and notice of claim, and whether hearing aids were reasonably necessary to address small level of industrial deafness; worker unaware that he suffered an injury at the respondent until qualified medical evidence and legal advice was provided; worker had non-work related hearing loss and a lesser degree of industrial deafness; Inghams Enterprises Pty Ltd v Jones, Bluescope Steel (AIS) Pty Ltd v Sekulovski, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Matthews v State Rail Authority of New South Wales, and Murphy v Allity Management Services Pty Ltd discussed and applied; Held – worker gave valid notice of injury and made a valid claim; employment materially contributed to the need for reasonably necessary hearing aids; award for the worker for medical expenses.
Decision date: 28 September 2021| Senior Member: Glenn Capel
Consequential conditions; claim for permanent impairment compensation with respect to left foot (accepted frank injury) and disputed consequential conditions to left knee and lumbar spine; whether applicant’s altered gait which has given rise to the issues with the left knee and lumbar spine was caused by the injury at issue or a congenital condition; Held - the applicant suffered consequential conditions to his left knee and lumbar spine as a result of the accepted injury; the respondent’s contention that those conditions were brought about by an altered gait caused by a cavo varus deformity in the applicant’s left foot is not supported by the preponderance of the medical evidence; the applicant’s contention that his injury had led to an altered gait and in turn the alleged consequential conditions was supported by contemporaneous treating and independent medical examination evidence, and on a common-sense evaluation of the causal chain, the knee and lumbar conditions were a consequence of the left foot injury; Kooragang Cement Pty Ltd v Bates and Kumar v Royal Comfort Bedding Pty Ltd followed; Department of Education v Ireland distinguished; matter remitted to President for referral of frank injury to left foot and consequential conditions to lumbar spine and left knee to a Medical Assessor.
Decision date: 28 September 2021| Member: Cameron Burge
Death claim; determination of dependency and payment of death benefit; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - no other dependants; award for the applicant.
Decision date: 28 September 2021| Senior Member: Glenn Capel
Psychological injury; fact of injury not in issue; claim for weekly and permanent impairment compensation together with medical expenses; respondent alleges injury wholly or predominantly caused by reasonable actions relating to discipline and/or performance appraisal; Held - the injury was not wholly or predominantly caused by the matters relied on by the respondent, as the evidence discloses the applicant was diagnosed with and receiving treatment for a work-related injury well before the matters relied on by the respondent; in examining a defence under section 11A of the Workers Compensation Act 1987 (the 1987 Act), the relevant consideration is the causal link between the matters relied on and the injury, not any incapacity arising from the injury; each expert relied on by the parties assessed the applicant’s impairment at 22%; this being so, there is no need for a referral to a Medical Assessor, and the Commission will make an order that the respondent pay the applicant permanent impairment compensation in respect of a 22% whole person impairment; there was no issue as to the applicant’s preinjury earnings or that he remains totally incapacitated; having found against the defence under section 11A of the 1987 Act, it follows the respondent will be ordered to pay the applicant weekly compensation from 5 September 2018 to 3 March 2021; the parties are directed to provide written submissions on the question of whether the applicant is entitled to weekly compensation pursuant to section 38 of the 1987 Act within 14 days, whereupon that question will be dealt with ‘on the papers’; the respondent is ordered to pay the applicant’s section 60 of the 1987 Act expenses.
Decision date: 28 September 2021| Member: Cameron Burge
Claim for permanent impairment resulting from primary psychological injury sustained in the course of employment with the respondent; Held - the applicant sustained primary psychological injury in the course of her employment with the respondent, with employment being the main contributing factor to injury; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment.
Decision date: 28 September 2021| Member: Jacqueline Snell
Claim for weekly payments, medical expenses and permanent impairment for psychological injury; whether the worker sustained a disease injury pursuant to section 4(b) of the Workers Compensation Act 1987; reference to AV v AW and Kelly v Western Institute NSW TAFE Commission; whether events at work perceived by the worker to be hostile and the cause of an increase in psychological symptoms; Held – the worker’s employment was the main contributing factor to the aggravation of an underlying psychological disease; award of weekly payments of compensation, medical expenses and referral for assessment of permanent impairment.
Decision date: 28 September 2021| Member: John Isaksen
Claim for weekly compensation for psychological injury and exacerbation of insomnia caused by roster changes and interpersonal conflict during and after those changes; claim denied on basis of no recognisable psychological condition and, alternatively, that the psychological condition predominantly caused by transfer or the provision of employment benefits within section 11A(1) of the Workers Compensation Act 1987 (the 1987 Act); Reedy v IBM Australia Ltd and Manly Pacific International Hotel v Doyle considered; Held - the entirety of the roster changes could not be characterised as either transfer or the provision of employment benefits; award for the worker for partial incapacity pursuant to the former section 40 of the 1987 Act.
Decision date: 28 September 2021| Member: Paul Sweeney
Applicant claimed cost of anterior and posterior lumbar decompression and fusion from L3 to S1, pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); previous L3 to L5 fusion performed after determination of Workers Compensation Commission; respondent disputed that proposed treatment was reasonably necessary; consideration of Diab v NRMA Ltd; Held - the proposed surgery is reasonably necessary as a result of injury; award for the applicant for the cost of surgery, pursuant to section 60(5) of the 1987 Act.
Decision date: 29 September 2021| Member: Kerry Haddock
Worker suffered an accepted injury to her back for which she underwent surgery; ceased work as a result of a subsequent psychological injury; claim that she suffered injury to her knees as a result of the nature and conditions of her employment or in the alternative that she suffered a consequential condition as a result of altered gait or weight gain; Kooragang Cement v Bates, Bouchmouni v Western Red Cedar and Nguyen v Cosmopolitan Homes discussed; Held – claim for further permanent impairment of back remitted for referral to a Medical Assessor; award for the respondent with respect to left and right knees.
Decision date: 29 September 2021| Member: Catherine McDonald
Workers Compensation Medical Appeal Panel Decisions
The appellant submitted that the Medical Assessor (MA) incorrectly recorded details from the appellant during the assessment and incorrectly interpreted the evidence; no particular categories of the Psychiatric Impairment Rating Scale (PIRS) were identified as being incorrect; fresh or additional evidence admitted in the interests of justice given the elapsed time between the initial assessment (no maximum medical improvement) and the current assessment; nothing in all the evidence disclosed any error by the MA; Ferguson v State of New South Wales applied; Held - Medical Assessment Certificate confirmed.
Decision date: 23 September 2021 | Panel Members: Member Deborah Moore, Dr Julian Parmegiani and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Allegation of demonstrable error in respect of a deduction of one half pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) from an assessment of impairment in respect of injury to the lumbar spine and left lower extremity; the appellant worker submitted that the Medical Assessor (MA) had failed to provide reasons for deducting one half of the total assessed impairment for both the lumbar spine and the left lower extremity; the appellant further submitted that a deduction should not have included the additional 2% added to the left lower extremity impairment in respect of nerve damage nor to the additional 2% added to the assessment of the lumbar spine in respect of interference with activities of daily living; Held - the Medical Assessment Certificate (MAC), when read as a whole explained the basis upon which the MA had applied a deduction of ½ to the level of impairment assessed upon examination; the MA had considered the history, imaging and medical records and reports and applied his clinical judgement; the evidence was capable of supporting that assessment in respect of both the lumbar spine and the left lower extremity; the Panel considered that section 323 of the 1998 Act was intended to address the whole of the assessment of impairment for a particular body part/system and it was appropriate for the MA to include the additional 2% in the total level of impairment from which the deduction was to be made; no error or application of incorrect criteria was established in the MAC; MAC confirmed.
Decision date: 24 September 2021 | Panel Members: Member William Dalley, Dr Drew Dixon and Dr Phillipa Harvey-Sutton | Body system: Lumbar spine and left lower extremity
Appellant worker suffered complex regional pain syndrome (CRPS) of both lower extremities based on Budapest Criteria, as a result of injury to left ankle; Medical Assessor (MA) did not assess appellant’s permanent impairment based on CRPS because he could not make diagnosis of CRPS based on criteria of Table 17-1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and so assessed the appellant’s impairment by reference to Chapter 3 of the Guidelines; appellant sought to introduce statement she signed after assessment and a statement her partner signed after assessment in which they recounted what they say had occurred during the MA’s examination of her and in which the appellant provided commentary on the fairness of Table 17-1; appellant submitted the MA made errors during his examination and applied the Guidelines unfairly; Appeal Panel did not receive further statements into evidence; Held - Appeal Panel found that MA could not, based on his findings from examination, make a diagnosis of CRPS in accordance with Table 17-1; Medical Assessment Certificate upheld.
Decision date: 27 September 2021 | Panel Members: Member Marshal Douglas, Dr David Crocker and Dr David Lewington | Body system: Left lower extremity
Appeal from finding of 53% whole person impairment for disease conditions; whether Medical Assessor (MA) obliged to apportion between disease injuries, frank injuries and micro traumata; Held - nature of claimed injury is for Commission determination; Jaffarie v Quality Castings Ply Ltd applied; terms of referral binding on an MA; Skates v Hills Industries Ltd applied; whether frank injuries and micro traumata material factors to disease discussed; Department of Education v Johnson considered; Medical Assessment Certificate confirmed.
Decision date: 27 September 2021 | Panel Members: Member John Wynyard, Dr James Bodel and Dr David Crocker | Body system: Left lower extremity, right lower extremity, right upper extremity, left upper extremity, lumbar spine, cervical spine and scarring
Appeal against Medical Assessment Certificate (MAC) in respect of psychiatric injury suffered by the appellant worker; worker alleges MAC contains demonstrable errors as a result of the Medical Assessor (MA) classing him incorrectly in respect of concentration, persistence and pace (psychiatric impairment rating scale (PIRS) Table 11.5), and employability (PIRS Table 11.6); Held - finding of no demonstrable errors in the MAC as a result of the MA placing the appellant worker in Class 2 for concentration, persistence and pace and in Class 4 for employability; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Limitedand Ballas v Department of Education (State of New South Wales)referred to; finding of no error on the part of the MA in his assessments; MAC confirmed.
Decision date: 28 September 2021| Panel Members: Member Brett Batchelor, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological/Psychiatric
Psychological injury; appellant sought to admit additional relevant evidence; the appellant submitted that the additional information is relevant because it discloses evidence that is inconsistent with the psychiatric impairment rating scale (PIRS) rating given by the Medical Assessor (MA) and would likely change the outcome; Held - the Appeal Panel considered that the additional evidence was relevant, probative and likely to change the outcome and it was readily apparent from an examination of the Medical Assessment Certificate (MAC) and the additional information that the MAC contains a demonstrable error; appellant re-examined by a MA member of the Panel; MAC revoked.
Decision date: 29 September 2021 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal from assessment of 17% for psychiatric whole person impairment (WPI); whether Medical Assessor (MA) had erred in failing to give reasons for ignoring statements from several sources that contradicted the account the worker gave regarding her self- care; whether the MA had erred in failing to explain the basis of his assessment of employability; Held - MA did not disclose his path of reasoning in either category; discrepancies of such moment that explanation required in the self-care category; insufficient reasons given concerning employability, which mentioned only that the worker had been out of the work force for years; re-examination conducted; Medical Assessment Certificate revoked and a finding of 7% WPI substituted.
Decision date: 29 September 2021 | Panel Members: Member John Wynyard, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings (PAWE); absence of pay records; insufficient evidence; application of Schedule 1, clause 4(1) of the MAI Act; PAWE incorrectly calculated; Held – the reviewable decision is set aside.
Decision date: 15 September 2021 | Merit Reviewer: Katherine Ruschen
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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