Legal Bulletin No. 40
This bulletin was issued on 3 December 2021
Issued 3 December 2021
Welcome to the fortieth 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.
Appeal Case Summaries
Motor Accidents non-Presidential Member Decisions
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant now 88 years of age; significant pre-accident medical history including rheumatoid arthritis and bilateral hip replacements; injured as pedestrian; fracture of the left olecranon; fracture of the left public rami; fracture of the left humerus; fracture of the right lateral malleolus; good recovery with ongoing pain, stiffness and restriction of movement in left shoulder, left elbow and right ankle; increasing assistance required with personal hygiene, grooming and domestic duties; Held – claimant sustained serious injury; settlement of damages for non-economic loss approved.
Decision date: 30 July 2021| Member: Susan McTegg
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant under legal incapacity as result of injury; son appointed as appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 86 years of age; injured as passenger on bus; significant pre-existing conditions including injuries sustained in a number of falls and injury sustained in an earlier motor vehicle accident; at date of accident independent in personal care, meals delivered and cleaner once a fortnight; mobilised with a walking stick both inside and outside home including catching buses; accident caused fracture of the left femur; underwent total left hip replacement surgery; ongoing left hip pain, requires 4-wheel walker to mobilise in the community and walking stick at home; loss of confidence and becoming increasingly dependent; Held - settlement of claim for damages for non-economic loss approved.
Decision date: 17 August 2021| Member: Susan McTegg
Assessment of damages; Motor Accident Compensation Act 1999; front seat passenger in motor vehicle accident; significant pre-existing injuries; claimant 67 years of age; claimant had not worked since 2010; right knee replacement surgery 11 weeks prior to accident; whether accident caused aggravation of pre-existing conditions; whether aggravation continuing; Held – accident caused aggravation of injury to neck, lower back, right knee and psychological injury; accident not cause aggravation of pre-existing left knee or shoulder conditions; damages assessed for past treatment expenses; future treatment expenses and future commercial care; costs assessed.
Decision date: 7 September 2021| Member: Susan McTegg
Miscellaneous claims Assessment; wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; rider of scooter moved into left hand lane; truck turned left across path of scooter; dispute as to whether truck wholly in left lane; dispute as to whether truck indicated before moving into left lane; discrepancy between evidence of insured driver, independent witness and claimant; necessity for assessment conference; whether claimant entitled to recover exceptional costs; Held – due to inconsistency between witnesses, insurer not discharge onus of proof; claimant not wholly or mostly at fault; just resolution of dispute included needed for assessment conference; costs assessed on exceptional basis pursuant to section 8.10(4)(b) of the Motor Accident Injuries Act 2017.
Decision date: 22 November 2021| Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Psychological injury; claim for weekly benefits and medical expenses; no issue applicant suffered a work-related psychological injury; no issue applicant remains totally incapacitated for employment, or as to her pre-injury earnings; respondent raises defence under section 11A of the Workers Compensation Act 1987 and alleges the applicant’s injury was wholly or predominantly caused by its reasonable actions with regards to discipline; Held - the applicant’s injury was caused by a multitude of causal factors, including a dispute the subject of litigation in the Fair Work Commission, disciplinary matters raised after that dispute arose and an incident where two children collided in the classroom and one of them was injured; in any event, the respondent’s actions with respect to discipline upon which it relies were unreasonable; they included the provision of a final warning to the applicant only a few weeks before her last day at work which arose from an allegation made against her which was unsubstantiated, found to be unproven by the respondent and the relevant regulator and held by the respondent itself to have been actuated by the malice of a co-worker; respondent ordered to pay the applicant weekly compensation and her reasonably necessary medical and treatment expenses.
Decision date: 28 October 2021| Member: Cameron Burge
Respondent disputes liability to pay compensation to a library worker on the basis that her psychological injury predominantly resulted from its actions with respect to discipline and performance appraisal within section 11A(1) of the Workers Compensation Act 1987; See v Commissioner of Police and Kushwaha v Queanbeyan City Council consideredbut not followed; Held - the respondent had not proven that its actions with respect to discipline and performance appraisal were the predominant cause of worker’s psychological injury; award for the worker during first and second entitlement periods.
Decision date: 28 October 2021| Member: Paul Sweeney
Application to Resolve a Dispute (ARD) dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 (2020 Act) and rule 77 of the Personal Injury Commission Rules 2021 (Rules); matter discontinued earlier in 2021; agreement reached that applicant would attend medico-legal assessment with respondent expert in January 2022, but re-issued ARD immediately; claim for weekly benefits and surgery; psych case originally accepted but disputed in reply form to current ARD following discussion re attendance in January 2022; applicant sought to sever psychological claim; Held - applicant misconceived Commission procedure by lodging when it was aware or ought to have been aware that the matter would be relisted before the agreed assessment on January 2022; ARD dismissed; severance application dismissed pursuant to rule 64 of the Rules.
Decision date: 16 November 2021| Member: John Wynyard
Claim for section 60 of the Workers Compensation Act 1987; expenses for surgery to cervical spine; Diab v NRMA Ltd considered; quality of medical evidence; South Western Sydney Area Health Service v Edmonds and Hancock v East Coast Timber Products Pty Limited discussed; Held - award for the respondent.
Decision date: 18 November 2021| Member: Catherine McDonald
Permanent impairment claim; multiple body systems claimed as result of injurious event in 2003; whether applicant suffered injuries to cervical spine and right shoulder in injurious incident; whether accepted injury to thoracic spine can be referred for medical assessment despite not being subject of any claim for permanent impairment; Held – the accepted thoracic spine injury should not be referred for assessment in circumstances where it is not the subject of any comment, let alone assessment by the applicant’s own independent medical examiner; Shankar v Ceva Logistics (Australia) Pty Ltd distinguished; the applicant made a claim for whole person impairment in reliance on the report of Dr Bodel; that report only assessed impairment with respect to the right shoulder and neck, not the thoracic spine; the accepted injury to the thoracic spine was not discussed in Dr Bodel’s report, let alone the subject of any assessment in it; indeed, Dr Bodel did not assess the thoracic spine at all; the applicant had not discharged the onus of proof in establishing injury to the neck and right shoulder, neither of which were the subject of complaint to treating practitioners until much later; mere proof that certain events occurred which predisposed the applicant to a subsequent injury will not, of itself, be sufficient to establish that such subsequent problems result from a work injury; on a common-sense evaluation of the causal chain, the applicant had not discharged her onus of proof in establishing a causal link between the injurious event in 2003 and her neck and right shoulder conditions; Kooragang Cement Pty Ltd v Bates applied; award for the respondent.
Decision date: 18 November 2021| Member: Cameron Burge
Claim for lump sum death benefit and funeral expenses by de facto spouse of the deceased; first respondent puts in issue whether the deceased was a worker (pursuant to section 4 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and/or deemed worker (pursuant to clause 2 of Schedule 1 of the 1998 Act); reference to Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L v Commissioner of Taxation (No.3) and Malivanek v Ring Group P/L on the issue of worker; reference to Humberstone v Northern Timber Mills and Scerri v Cahill on the issue of deemed worker; relevant date when interest on the lump sum death benefit should run from and rate of interest to be applied; Held – deceased was a worker because he was working in the business of the first respondent and not his own business as at the date of his injury and death; worker was also a deemed worker because he was not regularly carrying out contract driving for himself as at the date of his injury and death; lump sum death benefit to be paid to the applicant, as well as the payment of funeral expenses; interest awarded at the rate of 2% per annum from when full particulars of the claim were provided to the respondents.
Decision date: 19 November 2021| Member: John Isaksen
Death claim; determination of dependency and payment of death benefit; Held - order for payment of the death benefit.
Decision date: 19 November 2021| Senior Member: Glenn Capel
Claim for weekly compensation and medical expenses resolved in 2019; worker made claim for lump sum compensation in 2021 based on supplementary report that was not served in the prior proceedings; employer disputed claim on basis of an “Anshun” estoppel; Port of Melbourne Authority v Anshun Pty Ltd, Tomlinson v Ramsey Food Processing Pty Ltd, Fourmeninapub Pty Ltd v Booth and Bruce v Grocon Ltd discussed; Held - worker not estopped from bringing his lump sum claim; assessment by a Medical Assessor not required; claim determined by Senior Member; worker awarded lump sum compensation.
Decision date: 19 November 2021| Senior Member: Glenn Capel
Calculation of pre-injury average weekly earnings (PIAWE) under clause 8EA of Division 2 of the Workers Compensation Regulation 2016 being adjustment of the relevant earning period because of the COVID-19 pandemic; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) andProject Blue Sky Inc v Australian Broadcasting Authority considered; Held – no order.
Decision date: 23 November 2021| Member: Catherine McDonald
Claim for lump sum death benefit and weekly payments in respect of dependent child; liability accepted; identification of dependants who were wholly or partly dependent for support on the worker; applicant was the sole dependant; Held - orders for payment of the lump sum death benefit pursuant to section 85(1)(a) and weekly compensation pursuant to section 31(1)(a) of the Workers Compensation Act 1987.
Decision date: 24 November 2021| Member: Rachel Homan
Workers Compensation Medical Appeal Panel Decisions
Medical Assessor (MA) made an assessment of 19% whole person impairment (WPI) and deducted one tenth for pre-existing condition; employer submitted that assessment was made on basis of incorrect criteria MA failed to apply Guideline 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 reissued 1 March 2021 and the MA failed to make an appropriate deduction for pre-existing condition; Cole v Wenaline and Marks v Secretary, Department of Communities and Justice (No 2) considered; Held - Medical Assessment Certificate confirmed.
Decision date: 19 November 2021 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/psychiatric
Deterioration resulting in increase in impairment; worker underwent lumbar spine surgery; Riverina Wines Pty Ltd v The Registrar considered; assessment on appeal in respect of lumbar spine only; Held – Medical Assessment Certificate revoked.
Decision date: 23 November 2021 | Panel Members: Member Catherine McDonald, Dr John Ashwell and Dr Mark Burns | Body system: Lumbar spine and left lower extremity
Appeal by worker that the Medical Assessor (MA) made an assessment on the basis of incorrect criteria, and that the Medical Assessment Certificate (MAC) contained a demonstrable error; the appellant injured his lumbar spine and was assessed by the MA as having sustained 14% whole person impairment (WPI) as a result of such injury; the MA found that the worker no longer had radiculopathy in accordance with 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, re issued 1 March 2021 (Guidelines) as he only had an absent left ankle reflex; the Appeal Panel found error in the MAC in that there was a minor criterion indicating radiculopathy in accordance with 4.27 of the Guidelines, in addition to the major criteria found by the MA of absent ankle reflex on the left side; a further examination of the appellant worker was undertaken by a member of the Appeal Panel; Held - finding that there were sufficient criteria to satisfy 4.27 of the Guidelines; MAC revoked and new MAC issued containing an assessment of 16% WPI.
Decision date: 24 November 2021 | Panel Members: Member Brett Batchelor, Dr Roger Pillemer and Dr David Crocker | Body system: Lumbar spine and scarring
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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