Legal Bulletin No. 36
This bulletin was issued on 5 November 2021
Issued 5 November 2021
Welcome to the thirty-sixth 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
Miscellaneous claims assessment; late claim for statutory benefits; claim made nearly 12 months after accident; claimant advised by General Practitioners (GPs) to lodge workers compensation claim; claimant acted on advice from his GPs; delay in employer submitting claim to icare; application of section 6.13 of the Motor Accident Injuries Act 2017 (MAI Act); whether the claimant had provided a full and satisfactory explanation for the delay in making the claim for the purposes of section 6.2 of the MAI Act; Karambelas v Zanic (No 2), Walker v Howard , Russo v Aiello and Hunter v Roberts applied; Held - the claimant’s explanation was “full”; claimant lodged a workers compensation claim; claimant acted on what he was told by his GPs; in the absence of legal advice, it is not unreasonable for the claimant to have relied on what his doctors told him; for many people their doctors are the professional with whom they have the most contact and place they most trust; claimant not aware of time limits; a reasonable person in the position of the claimant would have been justified in experiencing the same delay; the explanation for the delay in making the claim is “satisfactory”; a full and satisfactory explanation for the delay in making the claim for statutory benefits had been provided.
Decision date: 21 September 2021| Member: Brett Williams
Mostly at fault decision; Held - not caused mostly by the fault of the injured person; lane filtering; claimant travelling under 30 kph; dispute as to excessive speed; regulation 151A of the Road Rules 2014.
Decision date: 29 September 2021| Member: Terence Stern
Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; miscellaneous claims assessment; whether claimant wholly or mostly at fault under sections 3.11 and 3.28 of the MAI Act and whether weekly benefits should be reduced for any contributory negligence under section 3.38 of the MAI Act; single vehicle accident; motorcycle on semi-rural road; rider lost control on a bend sustaining catastrophic injury; failure to see speed advisory and curve warning sign; deficiencies in road design and signage which did not comply with current standards caused the accident; consideration of expert evidence; Held - claimant not wholly or mostly at fault and no contributory negligence; costs assessed in accordance with the Regulation.
Decision date: 19 October 2021| Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) for injury claimed to have been suffered arising out of or in the course of the applicant’s employment by the respondent as a full time live-in caretaker on a rural property; the respondent disputed that the arrangement under which the applicant occupied the property amounted to a contract of service between him and the applicant, and that the applicant suffered injury arising out of or in the course of his employment pursuant to section 4 of the 1987 Act; the applicant could not remember what happened to him on the night he fell off the balcony of the residence on the property in which he was residing at the time of injury; over two and a half years later he put forward a reason, based on his usual practice of dealing with cattle on the property, as to why he believed he was on the balcony of the property before he fell; the applicant principally relied on Harris v Cudgegong Soaring Pty Ltd in support of his submission that there was a contract of service between the parties; the respondent cited Dietrich v Dare, Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson, and Teen Ranch Pty Ltd v Brown in its submissions opposing such a finding; the applicant relied on the test outlined by Dixon J in Henderson v Commissioner for Railways (WA) and Humphrey Earl Ltd v Speechley in support of its submissions on the section 4 issue; the respondent also cited these cases, submitting that the applicant was not engaged in an activity that was reasonably required, expected or authorised by the employer to carry out his or her duties (emphasis added) when he was injured; Held - finding that there was a contract of service between the parties; finding that the applicant’s reconstruction of the reason he was on the balcony before he fell and suffered injury was speculation, and that he had not discharged the onus of proof on him to show that he suffered injury arising out of or in the course of his employment with the respondent; award for the respondent.
Decision date: 17 August 2021| Member: Brett Batchelor
Claim for lump sum compensation for permanent impairment; accepted injury to lumbar spine while loading rubber belts onto a utility; accepted consequential condition of the upper and lower digestive tract as a result of pain killing medication; whether worker also suffered injury to the cervical spine; whether worker also suffered bilateral shoulder injuries; Held - finding that worker suffered injury to his right shoulder in the incident; finding that worker had not discharged his onus in relation to the left shoulder; lumbar spine, cervical spine, right upper extremity (shoulder) and upper and lower digestive tract to be referred to a Medical Assessor for assessment of whole person impairment.
Decision date: 20 October 2021| Member: Jill Toohey
Claim for section 60 of the Workers Compensation Act 1987 expenses for lumbar fusion at the level above previous fusion surgery; Diab v NRMA Insurance Ltd considered; Held – award for the applicant.
Decision date: 21 October 2021| Member: Catherine McDonald
Claim for the cost of hearing aids pursuant to section 60 of the Workers Compensation Act 1987; the applicant worker claimed he suffered industrial deafness which resulted in assessments of 0.1% bilateral hearing impairment (BHI) and 0% whole person impairment (WPI); the respondent’s independent medical examiner assessed 0% BHI and 0% WPI; the respondent asserted that the applicant had not suffered industrial deafness arising out of or in the course of his employment, or alternatively that the degree of such deafness did not materially contribute to the reasonable necessity for the supply and fitting of hearing aids; Murphy v Allity Management Services Pty Ltd, Diab v NRMA Ltd, Winters v Endeavour Energy and Bluescope Steel (AIS) Pty Ltd v Sekulovski referred to; conflicting audiograms; Held - finding that the audiogram relied upon by the applicant should be accepted, and that the industrial deafness suffered by the applicant materially contributed to the reasonable necessity for the cost of the hearing aids claimed by the applicant.
Decision date: 25 October 2021| Member: Brett Batchelor
Claim for permanent impairment for psychological injury; worker claims being intimidated and feeling unsafe at her workplace as being the cause of her injury; whether the worker sustained a disease injury pursuant to section 4 (b) of the Workers Compensation Act 1987; reference to Perry v Tanine Pty Ltd; reference to the application of ‘main contributing factor’ from AV v AW; Held – the worker’s employment was the main contributing factor to the contracting of a psychological disease; matter remitted to President for referral to Medical Assessor for assessment of whole person impairment.
Decision date: 25 October 2021| Member: John Isaksen
Skin cancer to outdoor worker applicant; squamous cell carcinoma through outdoor full-time work for respondent for 33 years; respondent argues disease or aggravation of disease and employment not the main contributing factor; Held – citing Cant v Catholic Schools Office, Booth v Four Men in a Pub Pty Limited and King v Commissioner of Police, acceleration of skin damage on facts and preponderance of medicine and employment the main contributing factor to the aggravation; award in favour of the applicant.
Decision date: 25 October 2021| Member: Philip Young
Accepted claim for injury to left shoulder, left hand and right knee; claim to have also sustained injury to neck; claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 in respect of 23% whole person impairment as a result of injury to left upper extremity, right lower extremity, cervical spine and TEMSKI scarring; inconsistent statements of applicant; lack of contemporaneous medical evidence; applicant claimed inconsistencies and omissions in evidence due to language difficulties; consideration of Nguyen v Cosmopolitan Homes; Held - no sense of actual persuasion that the applicant sustained injury to his cervical spine; award for the respondent with respect to the claim for injury to the cervical spine; matter remitted to the President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to the left upper extremity (left shoulder and left hand), right lower extremity (right knee) and TEMSKI scarring.
Decision date: 25 October 2021| Member: Kerry Haddock
Claim for weekly benefits, medical and related expenses and permanent impairment compensation; first respondent accepted injury to the lumbar spine as a result of a series of frank lifting incidents; whether the applicant suffered an injury to her lumbar spine with the first respondent as a result of the nature and conditions of her employment during two distinct periods; whether the applicant suffered an injury to her lumbar spine with the second respondent as a result of the nature and conditions of her employment and/or an aggravation, acceleration, exacerbation or deterioration of a disease process; Department of Education and Training v Ireland, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales, Kennedy Cleaning Services Pty Ltd v Petkoska, Military Rehabilitation and Compensation Commission v May, Federal Broom Co Pty Ltd v Semlitch, Kelly v Western Institute NSW TAFE Commission, State Transit Authority v El-Achi and AB v AW considered and applied; Carr v State of New South Wales (Mid North Coast Local Health District),The State Government Insurance Commission v Oakley, Secretary, New South Wales Department of Education v Johnson and Ozcan v Macarthur Disability Services Ltd considered; Held – the applicant suffered an injury to the lumbar spine arising out of or in the course of her employment with the first respondent on 31 October 2005, 10 February 2006, 19 December 2011, 31 January 2012 and 1 February 2012 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the Workers Compensation Act (1987 Act); the applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the first respondent between 2004 and 2006 and between 2008 and 10 April 2012 from duties involving constant heavy and repetitive bending, lifting, carrying, twisting, turning, pushing and pulling within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the applicant did not suffer an injury to the lumbar spine arising out of or in the course of her employment with the second respondent on 24 June 2016 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; matter remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act; following the issue of a Medical Assessment Certificate by a Medical Assessor, the matter is to be listed for a teleconference in respect of the outstanding issues regarding the applicant’s entitlement to weekly compensation and reasonably necessary medical and related expenses as a result of injury under the 1987 Act.
Decision date: 27 October 2021| Member: Anthony Scarcella
Workers Compensation President’s Delegate Decision
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; applicant injured in bakery; suitable employment identified as role as a bank branch manager; applicant had previously worked as an assistant manager in a bank and had transferrable skills, experience and qualifications for the role; Held - award for the respondent.
Decision date: 8 October 2021| Delegate: Parnel McAdam
Motor Accidents Medical Review Panel Decision
The Claimant was injured in a motor accident whilst walking across a pedestrian crossing; the original Medical Assessor (MA) held that the injuries were assessed at 15% permanent impairment for the purposes of the Motor Accident Injuries Act 2017; on review the Insurer only disputed that there was a fractured coccyx and that it should be assessed at 5%; Held - although the review is a new assessment of all matters, the Review Panel (RP) accepted the agreement of the parties that the findings of the MA of the other body parties; the MRI scan was reviewed by the MAs on the RP who agreed with the radiologist that it showed a subluxation at C2 on C3; there was no indication of a fracture line; the Claimant’s clinical symptoms were consistent with the MRI findings; it was appropriate to assess impairment based on analogy (clause 6.24 of the Motor Accident Guidelines) relating to the deformity of the second and third coccygeal segments with residual signs; this pathology is analogous to the non-union of a displaced coccygeal fracture as described in Table 3.4 of the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment; the RP came to the same assessment as the original MA for slightly different reasons; original certificate confirmed.
Decision date: 6 October 2021 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Richard Crane | Body system: Spine, left lower extremity, left upper extremity and scarring
Workers Compensation Medical Appeal Panel Decisions
Matter remitted back from Supreme Court following determination by Associate Justice Simpson; Appeal Panel upheld as to determination regarding section 323 of the Workplace Injury Management and Workers Compensation Act 1998, but revoked over disallowance of 2% for effects of treatment pursuant to Chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed. 1 April 2016 ; Held - fresh Medical Assessment Certificate issued for 16% whole person impairment.
Decision date: 21 October 2021 | Panel Members: Member John Wynyard, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological/psychiatric
Medical Assessor (MA) made an assessment of 7% whole person impairment (WPI) as a result of a psychiatric injury deemed to have occurred on 17 October 2018; Held - Appeal Panel accept that the inclusion of matters involving support and care of Mr MacCullagh’s father were irrelevant considerations in the Psychiatric Impairment Rating Scale of Self-Care and Personal Hygiene and this constituted a demonstrable error; assessment of WPI by the Appeal Panel was the same as that made by the MA; in those circumstances the Appeal Panel will confirm the Medical Assessment Certificate (MAC) as the review has not led to a different result and should not be interfered with; Robinson v Riley considered; MAC confirmed.
Decision date: 21 October 2021 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/psychiatric
Appeal from assessment of whole person impairment (psychological); whether Medical Assessor (MA) erred in assessing a class 2 impairment in respect of ‘Self-care and personal hygiene’; whether MA erred in assessing a class 2 impairment in respect of Concentration, persistence and pace’; Held – Medical Assessment Certificate (MAC) revoked; new MAC issued.
Decision date: 22 October 2021 | Panel Members: Member Richard J Perrignon, Dr Julian Parmegiani and Dr Michael Hong | Body system: Psychological/psychiatric
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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