Legal Bulletin No. 39

Issued 26 November 2021

Welcome to the thirty-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.

Court of Appeal Decision

Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287

MOTOR ACCIDENTS – judicial review; assessment of permanent impairment; adequacy of assessor’s reasons; whether need to deal separately with further aspect of insurer’s case; requirement to distinguish jurisdictional error from error of law on face of record; requirement to state grounds of review with specificity.

Decision date: 25 November 2021 | Before: Basten JA, Leeming JA and Simpson AJA

Presidential Decisions

Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40

WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; fresh or additional evidence; findings of ‘injury’ pursuant to subclauses (i) and (ii) of section 4(b) of the Workers Compensation Act 1987; alleged factual error; application of Raulston v Toll Pty Ltd and associated authorities.

Decision date: 15 November 2021 | Before: Deputy President Michael Snell

Sirijovski v BlueScope Steel (AIS) Pty Ltd [2021] NSWPICPD 41

WORKERS COMPENSATION –Section 40 of the Workers Compensation Act 1987 in its form prior to commencement of the Workers Compensation Legislation Amendment Act 2012; the discretion in section 40(1).

Decision date: 17 November 2021 | Before: Deputy President Michael Snell

AVS Security Pty Limited v Workers Compensation Nominal Insurer (icare) [2021] NSWPICPD 42 

WORKERS COMPENSATION – Section 145 of the Workers Compensation Act 1987; section 43 of the Personal Injury Commission Act 2020; whether appellant is the corporate entity who employed the worker; reliance on company searches as evidence as to the trading name of the employer.

Decision date: 18 November 2021 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

White v AAI Limited t/as GIO [2021] NSWPIC 449

Head-on high speed collision; claimant 21 years old at date of accident; 24 years old at date of assessment; hospitalised for 23 days post-accident; life expectancy 62 years; significant injuries: T1 – T3 compression fractures L2 fracture; L3 burst fracture with 40% loss of height; right femoral mid-shaft transverse fracture; right 10-11 ribs fractures; small bowel perforation; Grade 1 liver laceration; psychological injury; abdominal scaring; Held - non-economic loss assessed at $360,000; past economic loss agreed; buffer of $275,000 for future economic loss; damages of $10,000 for travel costs allowed under section 4.5(1)(b) of the Motor Accident Injuries Act 2017; allowance reflects the increased cost of business class airfare for travel to Europe.

Decision date: 5 November 2021| Member: Brett Williams

Wang v QBE Insurance Australia Ltd [2021] NSWPIC 465

Application for reinstatement; failure to provide relevant particulars; three years or more after the motor accident; sections 6.2, 6.25 , 6.26 of the Motor Accident Injuries Act 2017; deemed withdrawn for not providing particulars; whether a full and satisfactory explanation for the failure to provide particulars provided; delay due to COVID-19, difficulty in obtaining medical evidence; solicitor’s difficulty in seeking instructions; Held - claimant has a full and satisfactory explanation for the delay in replying to the Insurer’s request for particulars; both limbs of sub-section 6.26(7)  satisfied, claim is reinstated; regulated legal costs awarded, no “exceptional circumstances”.

Decision date: 17 November 2021| Member: Ray Plibersek

Workers Compensation non-Presidential Member Decisions

Williams v Cubbyhouse Childcare NSW Pty Ltd [2021] NSWPIC 450

Accepted psychological injury; worker claimed it resulted from bullying and harassment by her manager; respondent claimed the injury was as a result of reasonable action by the employer with respect to discipline; the evidence supported the finding that the worker failed to fulfil her duties and that disciplinary action was appropriate; Held - the disciplinary action was reasonable; section 11A of the Workers Compensation Act 1987 defence made out; award for the respondent.

Decision date: 11 November 2021| Member: Deborah Moore

Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451

Worker; self-represented security guard alleged she was employed by the respondent; evidence that she was employed by a sub-contractor; Held – award for the respondent.

Decision date: 11 November 2021| Member: Catherine McDonald

Quinnell v Mars Maintenance Pty Ltd [2021] NSWPIC 452

Death claim; deceased committed suicide; dispute as to whether there was a causal connection between the deceased’s back injury and his depressive state, and whether the deceased’s death was caused by an intentional self-inflicted injury; determination of dependency, apportionment and payment of death benefit; Raulston v Toll Pty Ltd, Kumar v Royal Comfort Bedding Ltd, Holdlen Pty Ltd v Walsh discussed and applied; Held - causal connection established; deceased’s death was not caused by an intentional self-inflicted injury; apportionment and orders for payment of the death benefit and funeral expenses.

Decision date: 11 November 2021| Senior Member: Glenn Capel

Atkins v Palmer Steel Frame & Truss Pty Ltd [2021] NSWPIC 453

Claim for lump sum death benefit; liability accepted; identification of dependants who were wholly or partly dependent for support on the worker; Richardson v Turfco Australia Pty Ltd considered; applicant was the sole dependant; Held - orders for payment of the lump sum death benefit pursuant to section 85A(1)(a) of the Workplace Injury Management and Workers Compensation 1998 Act (1998 Act) and interest pursuant to section 109 of the 1998 Act.

Decision date: 12 November 2021| Member: Rachel Homan

Jabihullah v HAQ Transport Pty Ltd [2021] NSWPIC 454

Claim for the cost of surgery pursuant to section 60 of the Workers Compensation Act 1987 Act, in the form of C6/7 anterior cervical discectomy and fusion; the respondent claims that the applicant suffered a soft tissue injury only to his cervical spine, whereas the applicant claims that he suffered an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering; the respondent denies that the surgery claimed is reasonably necessary as a result of the injury claimed by the applicant, or the injury asserted by the respondent; both parties rely on Diab v NRMA Ltd at [88]; Held -  finding that the applicant suffered an aggravation of the pre-existing C6/7 disc protrusion from which he was suffering; finding that the surgery proposed by the applicant’s treating neurosurgeon was reasonably necessary as a result of such injury; respondent ordered to pay for the cost of and incidental to such surgery.

Decision date: 15 November 2021| Member: Brett Batchelor

Almanaa v FBS Formwork Group Pty Ltd [2021] NSWPIC 455

Pre-injury average weekly earnings (PIAWE) dispute in respect of injury on first day of employment with respondent; unsigned statement; consideration of Symbion Health Limited (formerly Mayne Group Limited) v Franks & Linfox Australia Pty Limited; clause 4, schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation considered; consideration of objective test required for clause 4 and clause 8F; whether award should be basis of clause 8F(1)(b) determination; Held - without proof of application of award clause 8F(1)(b) does not apply and clause 8F(1)(a) applies; oral contract formed and PIAWE determined on basis of oral contract.

Decision date: 15 November 2021| Member: Michael Wright

Pettigrew v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC 456

The applicant was an enrolled nurse employed by the Hunter New England Local Health District; in 2018 the applicant suffered psychological injury following aggressive and violent behaviour by a patient; the respondent served a work capacity notice contending that the applicant had capacity to earn her pre-injury earnings; a preliminary issue arose as to whether the Commission had jurisdiction to determine the matter as the applicant had been and was a resident in Queensland and the matter was required to be heard by a court pursuant to section 75 (iv) of the Commonwealth of Australia Constitution (Constitution); Held -the Commission formed an opinion consistent with the parties’ joint submission that the matter was federally impacted, and the proceedings were required to be filed in the District Court; consistent with the limitations on Tribunals discussed in Attorney-General of NSW v Gatsby, the dismissal of an application must be made to give effect to the opinion; observations that a consequence of dismissal in federally impacted matters is that a worker will lose the benefit of a stay if the application is dismissed: section 289B(3) of the Workplace Injury Management and Workers Compensation Act 1998; 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: 15 November 2021| Principal Member: John Harris

Basedow v Komatsu Australia Pty Limited [2021] NSWPIC 457

Claim for provision of new vehicle or vehicle modifications pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); whether provision of a vehicle is a ‘curative apparatus’ in the circumstances of the applicant’s case pursuant to paragraph (e) of the definition in section 59 of the 1987 Act; Coomber v Red Funnell Fisheries Newcastle Pty Ltd and Newcastle Regional Public Tenants Council Incorporated v Grant considered; identification of the relevant therapeutic features; whether vehicles proposed are reasonably necessary treatment; Held – award for the applicant pursuant to section 60 of the 1987 Act; orders with respect to market or trade in value of worker’s existing vehicle.

Decision date: 16 November 2021| Member: Rachel Homan

Green v Seven Network (Operations) Ltd [2021] NSWPIC 458

Psychological injury; worker a contestant in a reality television program, who claims injury due to vilification and bullying in the course of employment; whether right to recover compensation suspended pursuant to section 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); whether worker refused to submit to examination pursuant to section 119(1) of the 1998 Act; worker agreed to attend examination by psychiatrist but not by psychologist; Godfrey v Wollongong Women's Information Service Inc discussed; Held - that a psychologist is not a medical practitioner and respondent could not compel the worker to attend an examination by a psychologist; entitlement to compensation is not suspended pursuant to section 119(3) of the 1998 Act.

Decision date: 16 November 2021| Member: Carolyn Rimmer

Birleson v State of New South Wales (NSW Police Force) [2021] NSWPIC 459

Claim for compensation for pain and suffering by police officer pursuant to the former section 67 of the Workers Compensation Act 1987 (1987 Act); the applicant claims in respect of loss of sense of smell and taste and other disabilities as a result of suffering a fractured nose when assaulted in the course of his duties; agreement to accept section 66 of the 1987 Act compensation for 10% whole person impairment in respect of loss of sense of smell, taste and nasal distortion; principal claim for pain and suffering in respect of loss of sense of smell and taste which affects his social life and continuing duties as a policeman; restriction in sporting activities; some anxiety sequelae as a result of the injury; Tyler v Marsden Industries referred to; Held - finding that the applicant worker entitled to compensation for pain and suffering of 45% of the maximum amount payable pursuant to section 67 of the 1987 Act of $50,000; award for the applicant of $22,500 and costs.

Decision date: 16 November 2021| Member: Brett Batchelor

Wardle v Diocese of Wagga Wagga [2021] NSWPIC 460

Claim for weekly compensation in respect of a psychological injury; liability disputed by respondent on grounds the accepted injury was wholly or predominantly caused by its reasonable actions with respect to performance appraisal; meaning of “performance appraisal” in the context of section 11A of the Workers Compensation Act 1987 discussed; whether some of the less formal processes to which the applicant was subjected could be said to amount to performance appraisal; whether the performance appraisal process was the whole or predominant cause of the applicant’s injury; whether the steps taken by the respondent with respect to performance appraisal were reasonable; whether the applicant suffered incapacity for employment, and if so, to what extent; Held - performance appraisal must be a formal, structured process rather than a process of continued and protracted assessment; Dunn v Department of Education and Training and Irwin v Director-General of Education discussed and followed; the evidence discloses the less formal processes were not performance appraisal, including statement evidence from the respondent’s witnesses to that effect; rather the performance appraisal process began with a meeting held on 28 October 2019; the performance appraisal was the predominant cause of the applicant’s injury; the applicant’s contention that other matter such as a lack of training and guidance were also causative of his injury is not supported by the balance of the evidence; the steps taken were not reasonable in the circumstances; the applicant was given no notice of the agenda of the meeting to which he was called, the contents of the concerns his employer had, nor was he given the opportunity to have a support person present with him at the meeting; rather, the applicant was submitted to what was essentially a surprise meeting at which the respondent set out a number of issues which ultimately formed the basis for a performance improvement plan; moreover, the performance improvement plan itself lacked sufficient specificity in material aspects to be considered reasonable in the circumstances; Commissioner of Police v Minahan referred to; Ritchie v Department of Community Services discussed and followed; the applicant was totally incapacitated up to 19 March 2021, and thereafter remains partially incapacitated; the defence under section 11A is not made out; respondent ordered to pay the applicant weekly compensation from 18 August 2020 to date and continuing as set out in the Certificate of Determination.

Decision date: 16 November 2021| Member: Cameron Burge

Woodford v Westpac Group [2021] NSWPIC 461

Claim for weekly and permanent impairment compensation and medical expenses regarding alleged psychological injury; applicant employed as customer service officer in bank and subjected to repeated interactions with aggressive and violent customer over 12 months, and other work-related problems; respondent denies injury and alleges if there was a work-related injury it was wholly or predominantly caused by its reasonable actions with respect to promotion of the applicant’s co-worker within the branch; Held - applicant suffered work-related psychological injury; the causes of the injury were multi-factorial, not wholly or predominantly the promotion of the applicant’s co-worker; respondent to pay the applicant weekly compensation as set out in the Certificate of Determination; claim for permanent impairment compensation remitted to President for referral to a Medical Assessor; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.

Decision date: 16 November 2021| Member: Cameron Burge

McBain v Active Contracting Pty Ltd [2021] NSWPIC 462

Claim for cost of bilateral total knee replacements; accepted injury to left knee; whether applicant suffered a frank injury to his right knee at the same time; alternatively whether worker developed consequential condition in his right knee as a result of accepted injury; respondent accepted proposed left total knee replacement is reasonably necessary as a result of the accepted injury; whether proposed right total knee replacement is reasonably necessary as a result of the accepted injury; whether the chain of causation was broken by a subsequent injury to the right knee; Held - claim that applicant suffered a frank injury to his right knee at the same time not made out; finding that applicant developed an altered gait as a result of the accepted injury; finding that the need for the right total knee replacement was materially contributed to by the accepted injury; right total knee replacement is reasonably necessary as a result.

Decision date: 16 November 2021| Member: Jill Toohey

Cheng v Krio Krush Basic Foods Pty Limited [2021] NSWPIC 463

Claim by Mandarin speaking woman for lump sum compensation for injuries caused by the nature and conditions of her work as a process worker over 16 years; no record of contemporaneous complaint; first recorded complaint six months after ceasing work, and for disputed lumbar spine injury some six weeks later; respondent medico-legal expert initially supported her, but section 78 notice denied liability for lumbar spine injury and notified applicant that further report being sought because of the lack of contemporaneous medical support; subsequent report not supportive for that reason; whether lack of contemporaneous complaint affected satisfaction of the applicant’s burden of proof; whether mention of a contemporaneous complaint to a practitioner from whom no evidence tendered affected standard of proof; whether section 78 notice should be stuck out; Held- respondent expert accepted applicant in first report as witness of truth; lack of contemporaneous complaint not decisive; applicant’s credit not impugned; nature of work consistent with onset of lumbar symptoms as with other accepted injuries; section 78 notice complied with statutory obligations; absence of report from identified medical practitioner a matter of concern, but not determinative; cultural customs and limited understanding a factor; award for the applicant; matter referred for assessment.

Decision date: 16 November 2021| Member: John Wynyard

Alimmari v Unilver Australia (Holdings) Pty Ltd [2021] NSWPIC 464

Applicant employed by respondent as machine operator and cleaner; applicant claimed for weekly payments of compensation; agreed right shoulder injury; disputed lumbar spine injury; also dispute regarding the employment for which the applicant is suited; Held - applicant suffered injury to back; applicant could work full time in several positions; applicant’s current weekly earnings less than 80% of pre-injury average weekly earnings; award for the applicant.

Decision date: 16 November 2021| Member: Marshal Douglas

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Ltd v Vella [2021] NSWPICMP 214

This was a treatment and care dispute concerning operative procedures to the right shoulder and lumbar spine and 13 other wide-ranging categories of treatment resulting from a motor accident on 18 April 2016; the claimant had prior surgery to the L3/4 disc in 2011 and subsequent treatment; it was alleged that he injured his neck, right shoulder and lumbar spine in the 2016 motor accident; Held- the claimant was reviewed by a number of doctors in 2016 for the neck and right shoulder and these parts were referenced in the claim form; the treatment for the lumbar spine commenced in late 2016; there was no medical reason why the claimant would have sustained a disc trauma to L2/3 in the motor accident and a late complication of an unrecognised acute lumbar spine injury was medically unlikely; the previous surgery to the adjacent disc and subsequent heavy work and a complete lack of low back complaint were matters suggestive of no low back injury from the motor accident; based on the contemporaneous complaints, absence of prior complaint, continuity of complaints and supporting opinion of treating specialists, the Panel was satisfied that the claimant suffered a tear of the supraspinatus tendon in the motor accident; the motor accident need only be a material contribution to the need for treatment; AAI Ltd v Phillips applied; Panel accepted that the shoulder surgery and its consequences were related to the motor accident; discussion about the meaning of reasonable and necessary in the circumstances and a poor outcome does not mean that the treatment was not reasonable and necessary in the circumstances; Diab v NRMA Ltd applied; further discussion concerning the vague nature of 13 general and non-specific treatment disputes being referred for medical assessment which appeared inconsistent with the provisions of the Personal Injury Commission Act 2020 and insurer’s obligations; original medical assessment revoked in respect of the treatment relating to the low back.

Decision date: 10 November 2021 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr David McGrath | Injury module: Upper limb and spine

Venizelou v AAI Ltd [2021] NSWPICMP 215

The claimant suffered injury in 2020 to the left knee when she fell as a passenger on a bus; the claimant had a pre-existing arthritic knee and a total knee replacement was recommended in 2017; that treatment did not proceed and prior to the motor accident the claimant was independent, exercising and in full time employment; following the motor accident, the claimant developed recurrent locking and a significant increase in symptoms; Held – the motor accident aggravated and accelerated degenerative changes and caused further tearing of a degenerate lateral meniscus; this was a non-minor injury as defined in section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act); the motor accident need only be a material contribution to the need for treatment; AAI Ltd v Phillips applied; Secretary, Department of Education v Johnson referred to; the Panel accepted that the motor accident significantly increased the symptoms and brought forward the need for surgery which was undertaken in mid-2021; discussion about the meaning of reasonable and necessary in the circumstances; the medical evidence unanimously concluded that the surgery was appropriate and required; original medical assessment revoked.

Decision date: 11 November 2021 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Geoffrey Stubbs | Injury module: Lower limb and upper limb

Workers Compensation Medical Appeal Panel Decisions

Kelly v Simmonds Plastering Pty Ltd [2021] NSWPICMP 216

Medical dispute referred for assessment on basis of a frank injury to right knee and disease injuries to both knees caused or materially aggravated by the nature of the applicant’s employment as a plasterer; Medical Assessor only assesses frank injury and makes a deduction of 50% pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment Certificate revoked; section 323 reassessed on basis of a frank injury and disease injuries to both knees; Cullen v Woodbrae Holdings Pty Ltd considered and distinguished; Held - a “pre-existing injury or condition” is one that existed before the deemed date of injury.

Decision date: 12 November 2021 | Panel Members: Member Paul Sweeney, Dr Brian Noll and Dr David Crocker | Body system: Left lower extremity and right lower extremity

Chisholm v Life Without Barriers [2021] NSWPICMP 217

Appeal from assessment of whole person impairment (psychological); whether assessor erred in assessing a class 2 impairment in respect of Self-care and personal hygiene; whether assessor erred in assessing a class 2 impairment in respect of Social and recreational activities; Held - Medical Assessment Certificate confirmed.

Decision date: 15 November 2021 | Panel Members: Member R J Perrignon, Dr Patrick Morris and Professor Nicholas Glozier | Body system: Psychological/psychiatric

Manly Fresh Pty Ltd v Bachhal [2021] NSWPICMP 218

Psychological injury; arbitrator found that worker suffered a primary and a secondary injury; Medical Assessor (MA) did not apportion impairment as required by section 65A of the Workers Compensation Act 1987; State of NSW v Kaur and Mercy Connect v Kiely considered; appellant also argued that MA erred in the assessment of social functioning; difference of opinion; Ferguson v State of NSW considered; Medical Assessment Certificate revoked.

Decision date: 15 November 2021 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier and Dr Patrick Morris | 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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