Legal Bulletin No. 45
This bulletin was issued on 28 January 2022
Issued 28 January 2022
Welcome to the forty-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.
WORKERS COMPENSATION – proceedings in respect of Part 2A of the Civil Liability Act 2002; special provisions for offenders in custody; monetary threshold to appeal a decision of a Member required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); section 4 of the 1998 Act; definition of “compensation”.
Decision date: 10 January 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Assessment of damages under Part 4 of the Motor Accident Injuries Act 2017; liability admitted by insurer; claim for non-economic loss and past and future economic loss; high speed accident on Hunter Expressway, NSW; claimant was airlifted to John Hunter Hospital and sustained several fractures, mainly to the right lower limb; agreed amongst the parties that the claimant is unable to return to pre-injury employment as a heavy vehicle mechanic in the mining industry; claimant is currently 29 years of age suffering significant disruption to enjoyment of life, with major impact on family relationships and plans for the future; claimant developed alcohol dependence post-accident and suffers significant psychological symptoms as a result of the accident; claimant has made admirable efforts to re-enter the workforce and retrain, however, some efforts have been thwarted by his injuries; Held- continuing in his current employment is unreasonable due to his injuries; non-economic loss awarded in the amount of $375,000; total damages awarded: $1,417,789.96.
Decision date: 8 December 2021| Member: Elizabeth Medland
Application for a late claim for an assessment; within three years after the motor accident, sections 6.2 and 6.14 of the Motor Accident Injuries Act 2017; claimant motorcycle in a collision with car; claimant states that he posted application in May 2018; insurer denies receiving application; second application made in November 2018; whether a full and satisfactory explanation for delay in making the application. Held- claimant did not have a full and satisfactory explanation; delay due to first application being lost; claimant states he made several telephone calls to Insurer; no records of any calls; claimant has failed to provide a full account of his actions, knowledge and beliefs from 12 July 2018 to 12 November 2018; late claim may not be made within three years after the date of the motor accident; legal costs awarded, $1,200 plus GST.
Decision date: 23 December 2021| Member: Ray Plibersek
Motor Accident Injuries Act 2017 (the 2017 Act); damages claim; approval of settlement under section 6.23 of the 2017 Act; claimant self-represented; settlement of $77,000 for past loss of earnings and future loss of earning capacity; injury; soft tissue injury neck, fractured rib, bruising; return to full duties within 3 weeks, development of chronic pain condition; work activities varied but no loss of hours or diminution in wages; referred for medical assessment; WPI assessed at 5%; Held- settlement approved; no matter of principle.
Decision date: 14 January 2022| Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Claim for cost of L5/S1 fusion; whether onus of proof met; whether concurrent treatment for psychiatric illness relevant to consequential condition to low back caused by fracture of the right leg; whether treatment proposed actually or potentially effective; whether proposed treatment appropriate; whether other treatment available; Held- evidence insufficient on a number of grounds; GP management of applicant revealed substantial and constant treatment by psychologists, and a Consultant Psychiatrist; no evidence as to effect of applicant’s psychological state whether suitable candidate for surgery; evidence unsatisfactory as to the cost of the proposed treatment; observations on purpose of section 60(5); award respondent.
Decision date: 14 January 2022| Member: John Wynyard
Section 4(b)(ii) of the 1987 Act; prior left knee injury and surgery; claim for section 66 & 67 compensation; whether aggravation, acceleration, exacerbation, or deterioration of underlying degenerative condition and/or prior injury; late notice and late claim alleged; Held- applicant had work-related PTSD as reasonable cause to explain late notice/claim; high tibial osteotomy results from aggravation, acceleration, exacerbation and deterioration; reasonably necessary; matter remitted to the President for referral to Medical Assessor for WPI determination.
Decision date: 14 January 2022| Member: Philip Young
Claim for injury to the cervical, thoracic and lumbar areas of the spine; cervical spine injury disputed; whether applicant suffered incomplete partial cord lesion; whether nature of pathology relevant; Held- nature of pathology a live issue; Inghams Enterprises Pty Limited v Belokoski applied; applicant expert opinion unsatisfactory on several grounds and in conflict with other expert opinions; award respondent for claim for injury to cervical spine; matter remitted for assessment of thoracic and lumbar injuries.
Decision date: 14 January 2022| Member: John Wynyard
Claim for weekly compensation pursuant to section 38 of the 1987 Actfrom 1 August 2016 to 26 April 2021; previous award for the applicant in respect of period to 31 December 2012; respondent maintained there was a new diagnosis, and aggravation by subsequent employment, so that the applicant had to establish that employment was the main contributing factor to the injury; and the Commission does not have jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act; Held- the Commission has jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act; the date of injury has been determined to be 19 April 2004; the applicant is not required to establish that employment was the main contributing factor to the injury; consideration of Sabayanayagam v St George Bank Ltd, and other cases discussed in Roberts v University of Sydney; applicant had no work capacity from 1 August 2016 to 26 April 2021; award for the applicant of weekly benefits from 1 August 2016 to 26 April 2021, pursuant to section 38 of the 1987 Act, and section 60 expenses.
Decision date: 18 January 2022| Member: Kerry Haddock
Section 4(b)(ii) of the 1987 Act injury to the cervical spine disputed; entitlement to weekly benefits disputed; proposed surgery to the cervical spine disputed; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes,State Transit Authority v El-Achi, AB v AW, Jones v Dunkel, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held- the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the cervical spine within the meaning of section 4(b)(ii) of the 1987 Actarising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019; the applicant has had no current work capacity from 9 January 2019 within the meaning of section 32A of the 1987 Act; the C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Peter Khong reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 9 January 2019 within the meaning of section 60 of the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 9 January 2019.
Decision date: 18 January 2022| Member: Anthony Scarcella
Worker’s legal representatives withdrew from proceedings; claim ill-conceived and matter not ready to proceed to a conciliation conference and arbitration hearing due to absence of crucial evidence; worker had insufficient knowledge and capacity to act as an unrepresented litigant; worker’s conduct inappropriate; Held- matter not ready to proceed to conciliation conference and arbitration hearing; proceedings dismissed for want of due dispatch.
Decision date: 18 January 2022| Senior Member: Glenn Capel
Lump sum claim; issues in relation to injury; also, application of section 65(2) of the 1987 Act and section 322(3) of the 1998 Actwhether injuries could be assessed together for permanent impairment; Held- injury sustained to thoracic spine and right upper extremity (shoulder) pursuant to section 4(b)(ii) of the 1987 Act; these injuries can be assessed together as they arose out of the same incident; injury to bilateral plantar fascia, ankles and sub-talar regions pursuant to section 4(b)(ii) of the 1987 Act did not arise out of the same incident as that of the thoracic spine and right upper extremity (shoulder) and cannot be assessed with those injuries; Ozcan v Macarthur Disability ServicesI and Cemco (Australia) Pty Ltd t/as Carralls’ Engineering and Mining v Carrall discussed; injuries to thoracic spine and right upper extremity (shoulder) remitted to President to be referred to Medical Assessor as the lump sum claim for compensation for those injuries exceeded the threshold in section 66(1) of the 1987 Act;date of injury held to be date of lump sum compensation claim, applying SAS Trustee Corporation v O’Keefe; the lump sum claim in respect of the injuries to bilateral plantar fascia, ankles and sub-talar regions cannot be referred for assessment of permanent impairment as they do not exceed threshold in section 66(1); Sukkar v Adonis Electric Pty Ltd applied.
Decision date: 19 January 2022| Principal Member: Josephine Bamber
Motor Accidents Medical Review Panel Decisions
The claimant suffered injuries in a motor vehicle accident in 2016; the dispute related to the assessment of permanent impairment; Held- the claimant suffered injury to the lumbar spine which required discectomy; this impairment was assessed at 5% as there was no objective signs of radiculopathy within the meaning of clause 1.138 of the Guidelines; the claimant also suffered soft tissue injuries to the thoracic spine and right forearm with no assessable impairment; the claimant suffered two subsequent motor vehicle accidents; the second motor vehicle accident was minor and only caused a short-term aggravation; there was no objective evidence that the third motor vehicle accident resulted in the permanent impairment within the meaning of clause 1.34 of the Guidelines noting that the claimant had undergone lumbar spine surgery prior to that accident; original medical assessment revoked in part.
Decision date: 13 January 2022| Panel Members: Principal Members John Harris, Dr Michael Crouch and Dr David McGrath | Body system: Lumbar spine, thoracic spine, upper extremity and skin
The claimant suffered injuries in a motor vehicle accident in 2017; the dispute related to the assessment of permanent impairment of the left shoulder and the spine; Held- the claimant was re-examined by the two medical assessors on the Review Panel and presented in a consistent manner with good range of movement in the spine and left shoulder; the Panel was satisfied that the claimant suffered injuries to the left shoulder, neck and low back and referred pain from neck to the thoracic spine; the suggested variation in movements to other doctors did not detract from the consistent presentation in the above findings; furthermore, the Panel is not required to choose between competing medical opinions and is required to form its own opinion; Insurance Australia Group Ltd v Keen; the claimant’s permanent impairment of each area of the spine was 0% based on the physical examination; the impairment of the left shoulder was 2% based on direct trauma and neck symptoms effecting range of movement; original medical assessment revoked.
Decision date: 13 January 2022| Panel Members: Principal Member John Harris, Dr Alan Home and Dr Leslie Barnsley | Body system: Cervical spine, thoracic spine, lumbar spine and left upper extremity
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of whole person impairment; psychological injury; 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 Functioning;whether assessor erred in assessing a class 2 impairment in respect of Concentration, Persistence and Pace; Held- MAC confirmed.
Decision date: 14 January 2022| Panel Members: Member Richard Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier| Body system: Psychological/ psychiatric
Appeal against section 323 deduction of 1/10th in a finding of 15% whole person impairment for psychiatric injury; chapter 11.10 methodology not used by Medical Assessor; applicant had significant pre-existing PTSD from work with Police Force; Held- re-examination required to apply Chapter 11.10; Marks v Secretary, Department of Communities and Justice applied; MAC revoked; deduction of 29% substituted.
Decision date:17 January 2022 | Panel Members: Member John Wynyard, Professor Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/ psychiatric
Psychological injury deemed to have occurred in July 2014; claim for lump-sum compensation assessed by Approved Medical Specialist in July 2017 assessed as not reaching the threshold and Certificate of Determination issued in 2018; further psychiatric assessment by independent medical expert in April 2021 asserted as the basis of a request for reconsideration of the 2018 Certificate of Determination; at telephone conference parties agreed to an order rescinding the Certificate of Determination to permit the filing of an appeal pursuant to section 327 (a) and (b) for the purposes of obtaining a threshold assessment; Held - there was prima facie evidence of deterioration warranting re-examinations by a Panel Medical Assessor; re-examination together with additional evidence established deterioration leading to increased impairment; more recent events did not break the chain of causation; Medical Assessment Certificate revoked for the limited purpose of threshold issue.
Decision date: 18 January 2022| Panel Members: Member William Dalley, Dr Douglas Andrews and Dr Julian Parmegiani | Body system: Psychological/ psychiatric
Worker appeals from a certification by Medical Assessor that she did not suffer whole person impairment as a result of a closed head injury on grounds of deterioration and fresh evidence namely audio-vestibular testing; Held- panel determines that there is no evidence of deterioration; audio-vestibular testing held to be fresh evidence but not capable of altering the outcome of the assessment in view of the worker’s clinical history; MAC confirmed.
Decision date: 18 January 2022| Panel Members: Member Paul Sweeney, Dr Robin Fitzsimons and Dr Michael Davies| Body system: cervical spine
Allegation of error by way of failure to provide adequate reasons for assessment of DRE cervical category I; Held- the medical assessor had not recorded sufficient information to permit understanding of assessment in DRE category I rather than DRE category II; upon re-examination, Panel satisfied assessment as DRE II was appropriate; MAC revoked.
Decision date: 19 January 2022 | Panel Members: Member William Dalley, Dr Mark Burns and Dr Brian Noll | Body system: Lumbar spine, cervical spine and right upper 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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