Legal Bulletin No. 5
This bulletin was issued on 1 April 2021
Issued 1 April 2021
Welcome to the 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.
Workers Compensation non-Presidential Member Decisions
Claim for weekly compensation and section 60 expenses in respect of alleged psychological injury; whether diagnosable psychological condition; applicant employed under traineeship; meaning of “discipline” in section 11A(1); Kushwaha v Queanbeyan City Council and Webb v State of New South Wales considered; calculation of pre-injury average weekly earnings; Held- applicant sustained psychological injury; defence under section 11A(1) not established; respondent to pay weekly compensation and section 60 expenses.
Decision date: 18 March 2021 | Member: Rachel Homan
Dispute whether surgery reasonably necessary and results from injury; competing medical views; applicant engaged in heavy work as a canteen worker performing most of the heavy lifting because of co-worker’s disabilities; proper test for section 4(b)(ii) not applied by insurer; Held- nature and conditions of applicant’s employment aggravated applicant’s cervical disease and medical evidence supports surgery; applicant entitled to declaration sought.
Decision date: 18 March 2021 | Member: Philip Young
Reimbursement pursuant to section 145 of the 1987 Act; psychological injury in circumstances of previous psychological treatment; consideration of current work capacity.
Decision date: 19 March 2021 | Member: Elizabeth Beilby
Worker alleges medical condition of the left hip as a result of accepted injury to the lower back; where conflicting medical evidence as to the aetiology of the worker’s symptoms; where medical practitioners did not observe altered gait on examination; where employer’s IME opines that there is no scientific basis for the concept of “consequential injury”; Held- finding of causal nexus between back injury, surgery and hip condition; permanent impairment claim referred to medical assessor; evidence of treating hip surgeon accepted in preference to other doctors; opinion of employer’s IME in respect of consequential injury rejected as a bare ipse dixit.
Decision date: 19 March 2021 | Member: Paul Sweeney
Claim for weekly benefits compensation under section 40 of the 1987 Actand medical expenses; worker claimed he had suffered loss of income as result of a reduced capacity to undertake overtime shift work at pre-injury level; worker relied on Wages Schedule identifying comparative earnings; Held – satisfied worker suffered partial incapacity for work; satisfied worker entitled to rely on Wage Schedule; assessment of loss undertaken in accordance with Mitchell v Central West Health Service; award for applicant on claim for weekly payments under section 40 and medical expenses.
Decision date: 19 March 2021 | Member: Nicholas Read
Disputed injury to the right hip and consequential conditions to lumbar spine and knees; disputed claim for proposed bilateral knee replacement surgeries and lumbar fusion surgery; Held- award for the applicant pursuant to section 4(b)(ii) of the 1987 Act in relation to injury to the right hip, finding of altered gait and development consequential conditions in lumbar spine and knees; award for applicant in relation to proposed surgeries.
Decision date: 22 March 2021 | Principal Member: Josephine Bamber
Claim for weekly benefits and medical and related treatment expenses resulting from injury sustained on 12 June 2020 due to the nature and conditions of the applicant’s employment; the respondent placed injury and incapacity in issue; Held– the applicant sustained injury to his right knee on 12 June 2020 in the course of his employment with the respondent and the applicant’s employment with the respondent was a substantial contributing factor to injury; the applicant had no current capacity for work between 16 June 2020 and 27 January 2021 and the respondent is to make payments of weekly benefits under section 36 and section 37 of the 1987 Act accordingly; the applicant required medical treatment and services as a consequence of the injury he sustained to his right knee and the respondent is to pay the applicant’s medical and related treatment in the sum of $2,079 in accordance with section 59 and section 60 of the 1987 Act.
Decision date: 22 March 2021 | Member: Jacqueline Snell
Claim for weekly benefits and medical and related treatment expenses resulting from psychological injury sustained in the course of employment; respondent raised defence under section 11A of the 1987 Act with respect to transfer and placed incapacity in issue; Held– the applicant sustained psychological injury in the course of employment and the applicant’s employment with the respondent was the main contributing factor to injury; the applicant’s psychological injury was not wholly or predominantly caused by the reasonable action taken by the respondent with respect to transfer; the applicant had no current capacity for work between 28 May 2020 and 6 August 2020 and the respondent is to make payments of weekly benefits under section 36 of the 1987 Act accordingly; the applicant required medical and related treatment as a consequence of the psychological injury she sustained and the respondent is to pay the applicant’s medical and related treatment in the sum of $1,892.50 in accordance with section 59 and section 60 of the 1987 Act.
Decision date: 22 March 2021 | Member: Jacqueline Snell
Claim for declaration that surgery reasonably necessary; liability declined on basis that need for bilateral hip surgery did not result from the injury; back injury suffered in 2011; diagnosed at the time as a minor sprain; worker developed significant osteoarthritis in the hips in 2014; investigations in February 2015 showed L4/5 disc prolapse; Qannadian v Bartter Enterprises considered in relation to approach to content of clinical notes; Held- award for the respondent; contemporaneous clinical notes inconsistent with worker’s statements, all of which made some years after the subject employment injury.
Decision date: 22 March 2021 | Member: John Wynyard
Claim for death benefits and apportionment thereof pursuant to sections 25 and 29 of the 1987 Act by the widow of a deceased ‘worker’ who died of a heart attack in the course of his employment as a restaurant chef; the first respondent/employer declined liability relying on sections 4(b)(ii), 9A and 9B of the 1987 Act; finding that the conditions under which the deceased was required to work, and the stress and long hours of that work for the employer, was the main contributing factor to aggravation of the hypertension from which the deceased suffered; that aggravation caused heart arrhythmia which led to his death; Held- finding accordingly that the reliance of the first respondent on section 9A defence not applicable; finding that the nature of the deceased’s employment with the employer gave rise to a significantly greater risk of the injury suffered by the deceased than had he not been employed in employment of that nature; section 9B defence not made out; finding that the applicant, her two infant children and the deceased’s mother, resident in Hong Kong, all wholly or partly dependent on the deceased for support at the time of his death; orders made for apportionment, and for payment by the employer to, or for the benefit of, the applicant and other dependants of the sums apportioned to them; orders made for payment of weekly benefits to the two infant dependants and for the payment of funeral expenses to the applicant.
Decision date: 23 March 2021 | Member: Brett Batchelor
Apportionment of liability; section 22 of the 1987 Act; just and equitable in the special circumstances of the case; section 22A of the 1987 Act; application of the Limitation Act 1969 to contribution; Held- liability apportioned pursuant to sections 22 and 22A of the 1987 Act; Limitation Act 1969 does not apply to contribution.
Decision date: 23 March 2021 | Member: Kerry Haddock
Claim for interest on section 25 death benefit; dependants sought rate commensurate with Supreme or District Court practice, or at Public Trustee rate for best performing fund; phrase “duly made” in section 109 interpreted in Kaur v Thales Underwater Systems Pty Ltd and following cases said to be too restrictive; Held- Kaur v Thales Underwater Systems Pty Ltd followed; doctrine of stare decisis applied.
Decision date: 23 March 2021 | Member: John Wynyard
Claim for cost of proposed disc replacement surgery at L4/5 and L5/S1 level pursuant to section 60 of the 1987 Act; accepted injury at L5/S1; disputed claim for consequential condition at L4/5; Held- the applicant has sustained consequential condition at L4/5; the proposed surgery is reasonably necessary as a result of the injury.
Decision date: 24 March 2021 | Member: Kerry Haddock
Injury and consequential condition; whether worker suffered injury or consequential condition to L2-L4 segments of her lumbar spine requiring surgery; applicant suffered injury to L4/5 segment in a fall in 2008, together with other accepted injuries; development of problems in other lumbar segments disputed; Held- the applicant did not discharge the onus of proof with respect to the presence of a relevant lumbar spine injury, as the evidence did not disclose the presence of relevant pathological change in the claimed body parts; Castro v State Transit Authority (NSW) discussed; it is not necessary for a worker to satisfy the requirements of an injury as defined in section 4 of the 1987 Act in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd followed; to establish a consequential condition, an applicant must demonstrate an unbroken chain which provides a relative causal explanation between the claimed condition and the original injury; Kooragang Cement Pty Ltd v Bates applied; the applicant did not establish on the balance of probabilities that she suffered a consequential condition to the claimed body parts as a result either of the nature and conditions of her employment or as a result of a stumble at home which took place shortly after she underwent left lateral femoral nerve release surgery; award for the respondent.
Decision date: 24 March 2021 | Member: Cameron Burge
Workers Compensation Medical Appeal Panel Decision
Left shoulder injury, consequential condition in cervical spine and scarring; Medical Assessor (MA) assessed DRE II (5% WPI) for the cervical spine but then purported to make a 100% deduction under section 323 on the basis of his findings on causation; Held- the MA was in error because causation is outside his province; the MA did not err in respect of his assessment of 0% WPI for activities of daily living or 0% WPI for scarring as these findings were open to him; MAC revoked.
Decision date: 18 March 2021 | Panel Members: Member Jane Peacock, Dr Brian Noll and Dr Margaret Gibson| Body system: Left upper extremity, scarring and cervical spine
The appellant submitted that the Medical Assessor (MA) erred in failing to evaluate scarring, failed to evaluate any impact on activities on daily living (ADL’s) and failed to evaluate the left toe injury, including sensory loss and other features; Held- the Panel agreed; the appellant was re-examined to assess outstanding matters and a fresh MAC issued; MAC revoked.
Decision date: 18 March 2021 | Panel Members: Member Deborah Moore, Dr James Bodel and Dr David Crocker| Body system: Left upper extremity, right lower extremity, lumbar spine and scarring- TEMSKI
Assessment of permanent impairment from psychiatric injury; appellant worker submitted AMS erred with respect to the assessment of his impairment in the areas of social and recreational activities and concentration, persistence and pace and did not make his assessment on the basis of correct criteria because AMS did not have sufficient regard to his statement and did not reconcile his assessment with the assessment of his IME; Held- Appeal Panel considered AMS had regard to whole of the evidence and applied his clinical judgment to determine the significance of the matters raised in the evidence with respect to how they affected the appellant’s function; the Appeal Panel considered that the AMS provided sufficient reasons for his ratings and that the AMS’s ratings were open to be made by him based on what in his clinical judgement he considered were the significant matters; MAC confirmed.
Decision date: 18 March 2021 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Douglas Andrews| Body system: Psychiatric/ psychological disorder
Right knee injury; assessment based on knee replacement surgery; Medical Assessor (MA) assessed fair result and made no deduction; clinical findings inadequate; re-examination by MA of the Appeal Panel; Held- based on clinical findings on re-examination, Panel assessed good result with no deduction; MAC revoked.
Decision date: 18 March 2021 | Panel Members: Member Jane Peacock, Dr Drew Dixon and Dr Tom Mastroianni| Body system: Right lower extremity
Referral for assessment of injury to cervical spine and thoracic spine deemed to have occurred on 28 June 2019; AMS assessed 5% for the cervical spine and 8% WPI for the thoracic spine resulting in a total assessment of 13% WPI; whether the AMS obtained a proper history and whether the significant factual inaccuracies in the MAC were demonstrable errors; AMS erred in reporting various details including present symptoms, and misquoted the report of a treating doctors concerning activities of daily living; worker re-examined; Held- Panel made same assessment of WPI as that made by the AMS and MAC confirmed as the review has not led to a different result and should not be interfered with (Robinson v Riley); MAC confirmed.
Decision date: 19 March 2021 | Panel Members: Member Carolyn Rimmer, Dr Margaret Gibson and Dr John Brian Stephenson| Body system: Cervical spine and thoracic spine
The appellant submitted that the Medical Assessor (MA) erred in two respects; firstly in making a deduction pursuant to section 323 of the 1998 Act; secondly the MA erred in his calculation of the appropriate uplift in respect of his activities of daily living; Held- the evidence supported the findings made and assessment by the Medical Assessor; MAC confirmed.
Decision date: 19 March 2021 | Panel Members: Member Deborah Moore, Dr J Brian Stephenson and Dr Drew Dixon| Body system: Cervical spine
Whether contralateral small joints in the hand showing pronounced restriction of movement was “normal” to be used as a base line; Chapter 2.20 of the Guidelines considered; Nguyen v Pasarela Pty Ltd considered; Held- MAC confirmed.
Decision date: 22 March 2021 | Panel Members: Member John Wynyard, Dr Margaret Gibson and Dr Brian Noll| Body system: Right upper extremity
Appellant worker suffered psychiatric injury; appellant sought Appeal Panel receive into evidence a statement she made after MAC issued relating to her function in each of the PIRS categories; Appeal Panel did not receive that statement into evidence because appellant could have reasonably made a written statement regarding that matter prior to assessment; appellant submitted AMS erred with respect to the ratings of her impairment in all PIRS categories because AMS did not have proper regard how she functioned; Held- Appeal Panel considered AMS applied his clinical judgment to determine the significance of the matters raised in the evidence with respect to how they affected the appellant’s function; the Appeal Panel considered that the AMS provided sufficient reasons for his ratings and that the AMS’s ratings were open to be made by him based on what in his clinical judgement he considered were the significant matters; MAC confirmed.
Decision date: 22 March 2021 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Patrick Morris| Body system: Psychiatric/ psychological disorder
Appellant suffered a left shoulder injury which required surgery with resultant portal scars; AMS assessed 14% for two body parts (upper extremity and hypertension) and 0% for the scars; the appeal submissions were limited to the assessment made by the AMS of 0% for the scars; Held- the AMS made findings on the characteristics of the scars which fell within the criteria for 0% WPI; the issue of whether one of the scars was “quite visible”, as the appellant submitted, or “barely visible”, as the AMS found, was a matter of clinical judgement; the finding by the AMS was consistent with the photograph; no demonstrable error had been established; Vannini v Worldwide Demolitions Pty Ltd applied; the appellant’s submission that the AMS had misapplied paragraph 14.6 of the fourth edition guidelines was also rejected; MAC confirmed.
Decision date: 23 March 2021 | Panel Members: Principal Member John Harris, Dr David Crocker and Dr James Bodel| Body system: Left upper extremity, skin (scarring) and cardiovascular system
Appeal against the assessment of whole person impairment based on Psychiatric Impairment Rating Scale with respect to areas of function “social and recreational activities, “travel” and “concentration, persistence and pace”; demonstrable error and application of incorrect criteria alleged; the appellant worker submitted the assessment failed to take into account his high level of function prior to injury and failure to consider relevant evidence of impairment; Held- the AMS had appropriately considered the relevant evidence and was entitled to rely on the information provided to him at the examination; Glen William Parker v Select Civil Pty Ltd applied; the respective assessments were open to the AMS on the evidence and no application of incorrect criteria nor demonstrable error was made out; MAC upheld.
Decision date: 23 March 2021 | Panel Members: Member William Dalley, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychiatric/ psychological disorder
Appeal by worker on the grounds of assessment was made on the basis of incorrect criteria, and that the MAC contained a demonstrable error; the appellant worker claimed that the Medical Assessor (then an Approved Medical Specialist) was in error in making a one tenth deduction from an assessment of 15% WPI as a result of injury to the digestive system (bilateral hernias) and scarring (TEMSKI); the appellant accepted the 15% WPI assessed but submitted that the Medical Assessor made three demonstrable errors in finding that pre-existing conditions in the respiratory system (asthma, chronic obstructive airways disease and smoking) contributed towards impairment in the gastrointestinal tract, that a deduction of 10% was made for these pre-existing respiratory conditions and that the Medical Assessor had not provided reasons as to why the pre-existing conditions contributed towards impairment of the gastrointestinal system; Held- the Appeal Panel found that the pre-existing conditions suffered by the appellant worker contributed to the WPI sustained by him as a result of injury to the digestive system, but that the Medical Assessor had failed to provide reasons for the deduction of one tenth for pre-existing conditions pursuant to section 323 of the 1998 Act that he made from his assessment of 15% WPI; the Appeal Panel re-assessed the deduction to be made and found that there was no error in the one tenth deduction made by the Medical Assessor; MAC confirmed.
Decision date: 23 March 2021 | Panel Members: Member Brett Batchelor, Dr John Dixon-Hughes and Dr Neil Berry| Body system: Digestive system and scarring
This publication is for informational purposes only. It should not be relied upon as legal advice and it is not a substitute for a full reading of the decisions. The Commission does not accept liability for the information or use of the information that is provided in this publication.
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