Legal Bulletin No. 35

Issued 29 October 2021

Welcome to the thirty-fifth 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 Decision

Insurance Australia Group Ltd t/as NRMA Insurance v Welsh [2021] NSWSC 1368

ADMINISTRATIVE LAW – judicial review; motor accident; review of certificate of medical assessor; review of decision of proper officer to refuse referral to review panel; certificate does not clearly state degree of permanent impairment attributable to motor accident; failure to conform with regulatory requirements; error of law on face of record; proper officer ought to have suspected that certificate incorrect in material respect; certificate and decision set aside and matter remitted.

Decision date: 28 October 2021 | Before: Macfarlan JA

Presidential Decisions

Scone Race Club Limited v Cottom [2021] NSWPICPD 33

WORKERS COMPENSATION – Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); leave to appeal an interlocutory decision; section 352(6) of the 1998 Act; additional evidence admitted on the appeal; CHEP Australia Ltd v Strickland considered and applied; section 329 of the 1998 Act; referral of a matter for further assessment or reconsideration; Read v Liverpool City Council discussed; procedural fairness; decision should be based on the issues litigated in matter; Chanaa v Zarour applied; a party must have an opportunity to deal with matters adverse to their interests; Muin v Refugee Review Tribunal and Blacktown Workers’ Club Ltd v O’Shannessy applied

Decision date: 19 October 2021 | Before: Deputy President Elizabeth Wood

State of New South Wales (NSW Police Force) v Nguyen [2021] NSWPICPD 34

WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; leave to rely on fresh or additional evidence; application of CHEP Australia Ltd v Strickland; alleged factual error in finding injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; application of Paric v John Holland Constructions Pty Ltd and associated authorities; causation; application of Calman v Commissioner of Police and Sutherland Shire Council v Baltica General Insurance Co. Ltd.

Decision date: 20 October 2021 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decision

AAI Limited trading as GIO v Martin [2021] NSWPIC 418

Approval of settlement; section 6.23 of Motor Accident Injuries Act 2017; claimant injured in head-on collision; injuries including fracture to left fourth finger (right hand dominant), soft tissue injuries to neck, post-traumatic stress disorder (PTSD); claimant only had limited time off work; PTSD in remission; finger injury resolved well and surgery unlikely to improve already satisfactory range of movement; settlement for $43,439.77 including statutory benefits of $9,439.77 and balance for past and future economic loss; Held - claimant recovered; settlement approved.

Decision date: 18 October 2021| Member: Alexander Bolton

Workers Compensation non-Presidential Member Decisions

Margetts v Bunnings Group Limited [2021] NSWPIC 410

Psychiatric injury accepted and section 11A of the Workers Compensation Act 1987 (the 1987 Act) defence alleged re disciplinary action only; section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) named only discipline but quoted insurer medico-legal expert that other actions also nominated re promotion, employee benefits and transfer; evidence closed and written submissions ordered to complete oral submissions; respondent then sought leave under section 289A(4) of the1998 Act to introduce the other named actions; Held - respondent application dismissed; authorities regarding re-opening after evidence closed considered; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services distinguished, although probably unhelpful to section 289A of the 1998 Act application in any case; on substantive case respondent unable to prove its actions regarding discipline were wholly or predominantly the cause of injury; respondent actions not found to be unreasonable; award applicant.

Decision date: 5 October 2021| Member: John Wynyard

Rodrigues v President Private Hospital Pty Ltd [2021] NSWPIC 411

Claim for weekly payments of compensation for injury to the lumbar spine; worker claims that leaning over a sink for extended periods of time caused injury to her lumbar 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; consideration of the extent of any incapacity due to injury to lumbar spine; Held – worker’s employment was main contributing factor to aggravation of degenerative disease in the lumbar spine; order for weekly payments of compensation for partial incapacity for 13 weeks pursuant to section 36 of 1987 Act; thereafter the worker was able to earn in suitable employment an amount in excess of 80% of her average weekly earnings.

Decision date: 14 October 2021| Member: John Isaksen

Malaquin v Woolworths Group Limited [2021] NSWPIC 412

Claim for future medical expenses in the form of bariatric surgery; worker suffered compensable injuries in 2015 and 2016 in the form of aggravations to her underlying back condition; worker claimed the effects of the aggravations were ongoing and brought about the need for surgery; respondent alleged aggravation injuries had ceased and need for any surgery was an underlying chronic back condition; Held – satisfied respondent discharged evidentiary onus of proof in relation to resolution of symptoms; not satisfied on the balance of probabilities worker continued to suffer from the effects of the aggravation injuries; award for the respondent on the claim for medical expenses.

Decision date: 14 October 2021| Member: Nicholas Read

Devenish v Kizlock Pty Ltd [2021] NSWPIC 413

Claim for past medical expenses in the form of lumbar spine surgery; worker suffered a compensable left knee injury and underwent a left total knee reconstruction; worker alleged he fell 19 days after his surgery and suffered injury and/or consequential condition to his lumbar spine which necessitated surgery; Held – not satisfied worker discharged onus of proof that fall caused symptoms in lower back; inconsistent evidence regarding onset of symptoms and absence of contemporaneous reporting; burden of proof and Department of Education and Training v Ireland discussed; award for the respondent on the claim for medical expenses.

Decision date: 14 October 2021| Member: Nicholas Read

Reitano v Sydney Trains [2021] NSWPIC 414

Applicant claimed cost of right total hip replacement pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); injury claimed to be aggravation, acceleration, exacerbation or deterioration of disease of osteoarthritis, pursuant to section 4(b)(ii) of the 1987 Act and additionally or alternatively a consequential condition as a result of accepted injury to left knee; respondent disputed that the applicant had sustained injury to right hip; respondent did not dispute that surgery was appropriate treatment; consideration of Kumar v Royal Comfort Bedding Pty Ltd and Murphy v Allity Services Pty Ltd; Held – the applicant sustained injury to his right hip as a result of aggravation of a disease to which employment was the main contributing factor and a consequential condition as a result of injury to his left knee; 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 the1987 Act.

Decision date: 15 October 2021| Member: Kerry Haddock

Dawson v Allivale Pty Ltd t/as Aussie Kids of Moree [2021] NSWPIC 415

Claim for cost of proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion; Held – the proposed surgical treatment is reasonably necessary treatment for the injury the applicant sustained to her lumbar spine in the course of her employment with the respondent, with a deemed date of injury of 20 May 2009.

Decision date: 18 October 2021| Member: Jacqueline Snell

Rezaie v Universal Property Group Pty Ltd [2021] NSWPIC 416

Claim for weekly compensation, incurred section 60 of the Workers Compensation Act 1987 (1987 Act) expenses and lump sum compensation; injury to left knee when heavy gyprock fell on the applicant’s left leg accepted; whether left hip, right knee and back injured in same event; whether consequential conditions at left hip and back; lack of contemporaneous evidence of injury; Department of Education and Training v Ireland considered; explanation for delayed onset and reporting of symptoms provided by applicant’s doctors; consistent reports of antalgic gait and symptoms in left leg despite radiological evidence of pathology in knee resolving; Held - applicant sustained injury to left hip and consequential lumbar spine condition; awards for the respondent in respect of other alleged injuries and consequential condition; section 66 of the 1987 Act claim remitted to President for referral to a Medical Assessor; general order for section 60 of the 1987 Act expenses; consideration of weekly compensation claim deferred until receipt of Medical Assessment Certificate.

Decision date: 18 October 2021| Member: Rachel Homan

Toufiq v Aldi Stores [2021] NSWPIC 417

Claim for weekly benefits; determination of whether there was a workplace injury (section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and if so whether applicant’s employment was a substantial contributing factor to the injury (section 9A of the 1987 Act); Held - worker was injured when he was bending and lifting a box during a ‘freezer run’ and that work was a substantial contributing factor to the injury.; order for weekly payments pursuant to section 36 and section 37 of the 1987 Act.

Decision date: 18 October 2021| Member: Carolyn Rimmer

Bosevska v ISS Property Services Pty Ltd [2021] NSWPIC 420

Claim for permanent impairment compensation; whether applicant suffered injury to right knee in the course of her employment with the respondent; Held - the applicant suffered an injury in the course of her employment; although the precise date of injury is not known, the respondent does not allege any prejudice arises from that uncertainty, and the evidence relied on by the applicant in support of her claim was known to the respondent and dealt with by its medical expert before the commencement of proceedings; Castro v State Transit Authority (NSW) referred to; although the applicant had pre-existing degenerative changes in her right knee, the evidence discloses they were asymptomatic at the time of injury, and that those changes were aggravated by the injurious events at issue; as such, the applicant’s employment was the main contributing factor to the aggravation of that condition; Federal Broom Co Pty Ltd v Semlitch and Motor Body Repairers (NSW) Pty Ltd v Raymond referred to; Zickar v MGH Plastic Industries Pty Ltd (Zickar) referred to; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment to the right lower extremity (knee).

Decision date: 19 October 2021| Member: Cameron Burge

Sheahan v Springmount Property Services Pty Ltd [2021] NSWPIC 421

Claim for lump sum compensation; injury to left knee accepted; whether consequential condition at right knee as a result; extensive history of prior injury and symptoms resulting in surgery to both knees; whether effects of left knee injury had ceased; onset of symptoms in right knee when twisting and turning; whether evidentiary onus discharged; Held - applicant sustained a consequential right knee condition; matter remitted to President for referral to a Medical Assessor to assess left knee injury and right knee consequential condition.

Decision date: 20 October 2021| Member: Rachel Homan

Dimopoulos v Jetstar Services Pty Ltd [2021] NSWPIC 422

Claim for permanent impairment compensation resulting from primary psychological injury sustained in the course of the employment with the respondent; defence raised under section 11A(1) of the Workers Compensation Act 1987 relevant to discipline and/or performance appraisal; Held – the applicant’s psychological injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline and/or performance appraisal; the applicant’s claim for permanent impairment is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 20 October 2021| Member: Jacqueline Snell

Ritson v State of New South Wales [2021] NSWPIC 409

The applicant was an attested police officer and suffered a number of compensable injuries including a right thumb injury in 2006; in 2011 the applicant and the NSW Police Force executed a deed where substantial damages were paid; the right thumb injury was referred to in the deed; the applicant incurred medical expenses in 2021 totalling $825 for laser treatment to the right thumb; the respondent denied liability pursuant to section 151A of the Workers Compensation Act 1987; a preliminary issue arose as to whether the Commission had jurisdiction to determine the matter as the applicant had been a resident in Queensland for the past eight years and the matter required to be heard by a court pursuant to section 75 (iv) of the Commonwealth of Australia Constitution (the Constitution); Held - the characterisation of the “matter” involved the interpretation of the deed in the context of the disputed medical expenses; Abebe v Commonwealth of Australia applied; the relevant time for determining residency was when the application was filed in the Commission; Momcilovic v The Queen and Watson v Marshall & Cade applied; substitution of NSW Self Insurance Corporation for the respondent would have no utility as the Insurer was a State for the purposes of the Constitution; Deputy Federal Commissioner of Taxation v State Bank of New South Wales applied; opinion given that the matter was between a State and a resident of another State within the meaning of section 75(iv) of the Constitution; application dismissed for lack of jurisdiction.

Decision date: 20 October 2021| Principal Member: John Harris

Motor Accidents President’s Delegate Decision

NRMA v Sciortino [2021] NSWPIC 419

Application for review of merit review decision; President's gatekeeper decision under section 7.15 of the Motor Accidents Injuries Act 2017 (MAI Act); calculation of pre-accident weekly earnings (PAWE); application of clauses 3(1), 3(2) and 3(3) of the MAI Act; Held – reasonable cause to suspect merit review was incorrect in a material respect; review application is accepted; matter to be referred to a Merit Review Panel.

Decision date: 18 October 2021| Delegate: Jeremy Lum

Motor Accidents Medical Review Panel Decisions

GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193

The Claimant was injured in a motor accident; the issue before the Review Panel (RP) was whether he sustained a right shoulder injury and specifically a supraspinatus tear which required surgery; other treatment was sought by way of neurological review for the cervical spine injury; Held - the Claimant did not suffer a right shoulder injury; over a two-month period the Claimant was examined by four different health professionals including an ambulance officer, at hospital and by two different general practitioners with no complaint of right shoulder injury; the hospital notes also indicated normal power in the upper and lower limbs; the right shoulder was not mentioned by the Claimant in the claim form completed approximately six weeks after the motor accident; the minor rear end collision from which the biomechanical forces would have simply pushed the shoulders into the supporting car seat, was most unlikely to have caused anything although may cause a minor soft tissue injury; the tear and degenerative changes shown on MRI may be found in shoulders with no history of trauma; whilst the absence of contemporaneous complaint is not determinative (AAI Ltd v McGiffen) the existence of other evidence such as the claim form (Bugatv Fox) did not support injury; biomechanical factors did not favour the claimed injury; QBE Insurance (Australia) Ltd v Shah considered; the proposed treatment to the cervical spine was not reasonable and necessary; observations of the meaning of “necessary” when compared to workers compensation legislation; Clampettv Work Cover Authority of NSW applied; referral to a neurosurgeon for cervical spine condition not necessary because examination findings of Medical Assessor showed normal reflexes, no muscle wasting or sensory changes in a dermatomal distribution in the upper limbs; as there are no documented signs of radiculopathy, no neurosurgical referral is indicated and is not necessary.

Decision date: 20 September 2021 | Panel Members: Principal Member John Harris, Dr Richard Crane and Dr Shane Moloney | Body system: Cervical spine, thoracic spine, lumbar spine and right upper extremity

NRMA Insurance Ltd v Seymour [2021] NSWPICMP 194

The Claimant was injured whilst driving a tractor which was struck from behind and tipped over; Held - the parties accepted that the Review Panel (RP) could adopt the examination findings made by the original Medical Assessor; the Claimant was injured in a motor accident on 5 May 2006 and underwent shoulder surgery in December 2006; despite the absence of contemporaneous reports and detailed clinical notes, the RP was satisfied that the accident caused a shoulder tear that required surgery by reason of the manner of injury and temporal relationship with consulting and being treated by the specialist; QBE Insurance v Shah and AAI Ltd v McGiffen applied; the Claimant underwent a lumbar fusion in late 2009; the RP was not satisfied that the surgery was causally related to the motor accident because the pathology treated by the surgeon was pre-existing and not aggravated by the motor accident; the clinical notes were deficient, and the Claimant’s memory was poor due to subsequent cardiac surgery; RP satisfied that the Claimant suffered a soft tissue injury to the lumbar spine that would have resolved and that the subsequent fusion was unrelated injury; the Claimant had a pre-existing right knee injury where the patella and cartilage were removed; the removal of the patella and cartilage would have affected the biomechanics of the knee and inevitably led to further degeneration affecting loss of range of motion; the Claimant suffered a soft tissue right knee injury which would have resolved over a period of time; the present loss of range of motion was entirely due to the previous injury; Claimant reassessed at 1% impairment due to shoulder injury.

Decision date: 5 October 2021 | Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Thomas Rosenthal | Body system: Lumbar spine, right lower extremity and right upper extremity

Workers Compensation Medical Appeal Panel Decisions

Akparanta v Dynamic Concrete Pumping Services Pty Ltd [2021] NSWPICMP 195

The appellant submitted that the Medical Assessor (MA) erred in failing to properly assess scarring in accordance with the TEMSKI scale; the MA’s finding of 0% was consistent with all the evidence; Dr Maniam for the worker assessed 1% but gave no reasons for this assessment; Held - the MA gave adequate reasons for his assessment; Medical Assessment Certificate confirmed.

Decision date: 14 October 2021 | Panel Members: Member Deborah Moore, Dr James Bodel and Dr Gregory McGroder | Body system: Left upper extremity and scarring (TEMSKI)

Owens v Neami Limited [2021] NSWPICMP 196

Allegation of demonstrable error and application of incorrect criteria with respect to assessment of three areas of function in the Psychiatric Injury Rating Scale, travel, social functioning and employability; appellant submits that the Medical Assessor (MA)’s assessment was not available on the evidence; Held - the MA had performed the assessment in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016; the MA’s evaluation in each case was open and available on the evidence; Glenn William Parker v Select Civil Pty Limited and Ferguson v State of New South Wales applied; Medical Assessment Certificate confirmed.

Decision date: 15 October 2021 | Panel Members: Member William Dalley, Dr Michael Hong and Dr Julian Parmegiani| Body system: Psychological/psychiatric

Austbrokers RIS Pty Ltd v Davy [2021] NSWPICMP 197

Appeal from assessment of 1/10th section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction: worker awarded 24% whole person impairment for psychiatric injury caused by bullying and harassment; suffered from prior psychiatric condition which included suicide attempt some 4 years prior to subject injury, and 1 year prior to worker’s commencement with employer: whether contemporaneous clinical notes and health plans demonstrated a higher contribution from the prior condition; Held - incorrect criteria ground established as Medical Assessor (MA) did not explain the methodology used to assess such contribution; comparison with Chapter 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guides) and section 323 of the 1998 Act considered; Marks v Secretary, Department of Communities and Justice (No 2) applied; Chapter 11.10 of the Guides inapplicable as application would yield no prior contribution; MA accordingly applied correct criteria; observations on probative value of clinical notes and health plans when unanimously contradicted by medical experts; Medical Assessment Certificate confirmed.

Decision date: 20 October 2021 | Panel Members: Member John Wynyard, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/psychiatric

Skewes v SP Allen Pty Limited [2021] NSWPICMP 198

The appellant was referred to the Medical Assessor (MA) for two assessments resulting from injuries on 17 March 2000; the appellant submitted that the MA erred in failing to consider the effect of bilateral knee surgery on the loss of use of each leg at or above the knee and erred in preparation of the Table annexed to the Medical Assessment Certificate (MAC); the MA also erred in respect of the section 323  of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; both parties agreed that the Table contained errors and the Panel rectified those errors; Held - the Panel found that the section 323 of the 1998 Act deduction of 50% was consistent with all of the evidence, noting that the appellant had significant pre-existing conditions affecting her knees; MAC revoked essentially because of the errors in the preparation of the Table.

Decision date: 20 October 2021 | Panel Members: Member Deborah Moore, Dr Brian Noll and Dr Mark Burns | Body system: Lumbar spine, right lower extremity and left lower extremity

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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