Legal Bulletin No. 48

Issued 18 February 2022

Welcome to the forty-eighth 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

Faiz v QBE Insurance (Australia) Ltd [2022] NSWPIC 41

Miscellaneous claims assessment application for a late claim for statutory benefits after three months after the motor accident; sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017; whether a full and satisfactory explanation for delay in making the application for statutory benefits; whether Claimant provided a full and satisfactory explanation for non-compliance with the motor accident verification requirements under sections 6.8 and 6.9 of the MAI Act; Held - Claimant had a full and satisfactory explanation for delay in making the application for statutory benefits; delay due to personal hardship; panic attacks, periods where homeless; no access to phone and internet; Claimant provided a full and satisfactory explanation for non-compliance with the motor accident verification requirements; late claim may be made; legal costs awarded, $1,000 plus GST.

Decision date: 3 February 2022| Member: Ray Plibersek

Coyne v The Nominal Defendant [2022] NSWPIC 54

Motor Accident Injuries Act 2017 (MAI Act); whether common law claim can be made against Nominal Defendant under section 2.30 of the MAI Act; in issue whether due inquiry and search had been undertaken to ascertain the identity of the vehicle in circumstances where 16 year old claimant had been given photograph at the scene after the accident which may have shown the vehicle, claimant did not save photo and phone later destroyed; Held- Claimant had not ever identified the vehicle because he had not looked at the photographs; The Workers Compensation Nominal Insurer vs Nominal Defendant distinguished; Claimant had a limited opportunity to obtain the details of the vehicle after the accident but was disabled from doing so due to his age and injury; Nominal Defendant v Meakes, Nominal Defendant v Ross and Nominal Defendant v Ayache considered; efforts of search and inquiry 12 months after the accident were due bearing in mind age of claimant and delay in onset of serious symptoms and advice at time of accident that he only had ‘minor injuries’; Claimant permitted to bring claim against the Nominal Defendant.

Decision date: 8 February 2022| Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Taylor v Ongmac Trading Pty Limited [2022] NSWPIC 42

Application for a declaration pursuant to section 60(5) of the Workers Compensation Act 1987 that a proposed right knee arthroscopy was reasonably necessary; applicant, having undergone a right knee arthroscopy on 2 July 2020, went to a hotel after attending his physiotherapist on 28 July 2020; his foot got caught in a rail, resulting in a twisting injury to his knee which caused a fresh tear to his medial meniscus, to a separate part of the medial meniscus to that which had been operated on earlier; whether the earlier work related knee injury materially contributed to the applicant's current condition; whether the applicant had fully recovered from his earlier arthroscopy; whether the mechanism of injury was such to have caused the fresh tear of itself; Held - contemporaneous material established that the applicant had not fully recovered; respondent's experts’ opinion that the mechanics of the injury sufficient to cause the fresh tear speculative and rejected; evidence of applicant's expert of high incidence of re-tearing following partial meniscectomies accepted by respondent's expert; Kumar v Royal Comfort Bedding Pty Ltd, Secretary, NSW Department of Education v Johnson , Ozcan v MacArthur Disability Services Ltd and Bouchmouni v Bakhos Matta trading as Western Red Services applied; award applicant.

Decision date: 3 February 2022| Member: John Wynyard

King v Lloyd Drilling Constructions [2022] NSWPIC 43

Claim for weekly benefits and medical expenses in respect of amputation injury to left thumb; liability disputed on basis applicant was not a worker or deemed worker; claim amended at arbitration hearing to close the period of claim for weekly benefits; respondent sought at arbitration hearing to place in dispute capacity for work and pre-injury average weekly earnings; respondent sought to rely on late evidence, including some served on the day of the arbitration hearing; applicant opposed leave being granted to place capacity for work and pre-injury average weekly earnings in dispute; and to rely on part of the late evidence; Held - leave refused to respondent to raise previously unnotified issues and to rely on part of the late evidence; consideration of section 289A(4) of Workplace Injury Management and Workers Compensation Act 1998; Mateus v Zodune Pty Limited trading as Tempo Cleaning Services discussed; directions made for written submissions on remaining issues.

Decision date: 3 February 2022| Senior Member: Kerry Haddock

Costigan v University of Wollongong [2022] NSWPIC 44

Claim for cost of bilateral hearing aids; Held - although occupational hearing loss may have been mathematically assessed as low on the whole of the evidence including the applicant’s exposure over employment of 41 years and his direct evidence of difficulty with hearing and tinnitus going back to 2000 the applicant’s work-related noise exposure materially contributed to his need for hearing aids; award in favour of the applicant.

Decision date: 4 February 2022| Member: Philip Young

Smith v Allstaff Australia Sydney Pty Ltd [2022] NSWPIC 45

Applicant claimed cost of left total hip replacement pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); claimed consequential condition as a result of accepted injury to lumbar spine; respondent did not dispute that surgery was appropriate form of treatment; applicant objected to admission of medical evidence on the basis that it had not been provided to him, pursuant to section 73 of the 1987 Act and clause 41 of Workers Compensation Regulation 2016 (Regulation); consideration of Murphy v Allity Services Pty Ltd, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Chown v Tony Madden Refrigeration Transport Limited, RSL (QLD) War Veterans Homes Ltd v Watkins; Held - compliance with section 73 of the 1987 Act and clause 41 of the Regulation is mandatory; respondent unable to establish compliance with Act and Regulation; medical evidence not admitted; applicant sustained consequential condition of his left hip as a result of injury to his lumbar spine; proposed surgery is reasonably necessary as a result of injury; respondent to pay the cost of surgery, pursuant to section 60(5) of the 1987 Act.

Decision date: 4 February 2022| Senior Member: Kerry Haddock

Krajewski v Otis Elevator Company Pty Ltd [2022] NSWPIC 46

Claim for past medical and related treatment payable under section 60 of the Workers Compensation Act 1987 (1987 Act) and claim for permanent impairment compensation payable under section 66 of the 1987 Actfor permanent impairment resulting from injury sustained to the cervical spine, lumbar spine, left upper extremity (left shoulder), left lower extremity (left knee) and scarring; while it was not disputed the applicant sustained injury to his lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the course of his employment with the respondent, it was disputed he sustained these injuries as a result of the nature and conditions of his employment with the respondent; it was disputed the applicant sustained injury to his cervical spine as a result of the nature and conditions of his employment with the respondent; the deemed date of injury was also disputed; Held - the applicant sustained injury to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the nature of a disease injury with his employment with the respondent being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury; the deemed date of injury is the date the applicant made his claim for permanent impairment compensation; the applicant has an entitlement to medical and related treatment payable under section 60 of the 1987 Actand the cervical spine surgical treatment the applicant came to was reasonably necessary treatment for the injury he sustained to his cervical spine; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 4 February 2022| Member: Jacqueline Snell

Follett v Accurate Asphalt & Road Repairs Pty Ltd [2022] NSWPIC 47

Claim pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to multilevel fusion surgery in respect of accepted lumbar injury; whether aggravation of degenerative pathology had ceased; whether surgery indicated in circumstances where applicant is obese; Held - the proposed surgery is reasonably necessary as a result of the work injury; award for the applicant for the costs of and incidental to the proposed procedure.

Decision date: 4 February 2022| Member: Rachel Homan

Kang Trans Pty Ltd v Kaur [2022] NSWPIC 48

Death claim; determination of dependency; apportionment; payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit and agreed interest apportioned and orders for payment.

Decision date: 7 February 2022| Senior Member: Glenn Capel

Labit v University of New South Wales [2022] NSWPIC 49

Claim for section 60 of the Workers Compensation Act 1987 expenses; balance of probabilities; Nguyen v Cosmopolitan Homes discussed; brief statement and brief medical evidence; Byrom v Inghams Enterprises Pty Ltd and South Western Sydney Area Health Service v Edmonds discussed; Held – award for the respondent.

Decision date: 8 February 2022| Member: Catherine McDonald

Wake v State Emergency Services [2022] NSWPIC 50

Work capacity dispute; calculation of pre-injury average weekly earnings (PIAWE); applicant took period of 6 months long service leave half pay within the 52 week PIAWE relevant earnings period; Schedule 3, clause 2 of the Workers Compensation Act 1987 and clause 8C of the Workers Compensation Regulation considered; statutory interpretation; consideration of Cain v Tamworth Aboriginal Medical Service; beneficial legislation consideration; Held - period of long service leave half pay excluded from relevant earnings period; award for the applicant.

Decision date: 8 February 2022| Member: Michael Wright

J V Jupp Pty Ltd v Frater [2022] NSWPIC 51

Death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit and agreed interest apportioned and orders for payment.

Decision date: 8 February 2022| Senior Member: Glenn Capel

Bennell v Willoughby City Council [2022] NSWPIC 52

Claim pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for cost of proposed cervical surgery as a result aggravation of degenerative disease condition as a result of heavy lifting at work for the respondent from 1997; initial presentation for treatment arising from unrelated circumstances of awkward sleeping in a foldout hospital bed while staying with seriously ill son in ICU; consideration of factual and medical opinion; deemed date of injury for proposed surgery pursuant to section 16 of the 1987 Act; Held - employment was the main contributing factor in the aggravation of the disease condition; award for the applicant.

Decision date: 8 February 2022| Member: Michael Wright

Azer v Cumberland City Council [2022] NSWPIC 53

Claim for permanent impairment compensation resulting from injury sustained to the right shoulder and consequential injury to the left shoulder, right elbow and injury in the nature of right carpal tunnel;  alleged consequential injury to the left shoulder and right elbow placed in issue; level of permanent impairment resulting from injury in issue; Held – the applicant has sustained consequential injury to the left shoulder; award for the respondent in respect of the allegation of consequential injury to the right elbow; claim for permanent impairment compensation resulting from injury to the right shoulder and consequential injury to the left shoulder and injury in the nature of right carpal tunnel is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 8 February 2022| Member: Jacqueline Snell

Kirkpatrick v Ellerston Pty Limited [2022] NSWPIC 55

Claim for death benefit and apportionment pursuant to sections 25 and 29 of the Workers Compensation Act 1987 (1987 Act) by the widow and children of the deceased worker; liability accepted; parties agreed on proposed apportionment; Wratten v Kirkpatrick considered and applied; Held - lump sum apportioned as to 70% to applicant; 15% to second respondent; and 15% to third respondent; first respondent to pay the sum of $583,940 to the applicant pursuant to section 85A(1)(a) of the 1987 Act; first respondent to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the 1987 Act for the second respondent until he attains the age of 18 years; first respondent to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the 1987 Act for the third respondent until he attains the age of 18 years.

Decision date: 9 February 2022| Senior Member: Kerry Haddock

Hawthorn v Tomago Aluminium Co Pty Ltd [2022] NSWPIC 56

Claim for the cost of bilateral hearing aids as being reasonably necessary as a result of undisputed noise induced hearing loss; the respondent asserts, based on the opinion of Dr Fernandes, that the average bilateral hearing loss is to be 40 dB over the higher frequencies of 2000, 3000 and 4000 Hz before a person becomes hearing handicapped such as to show the reasonable necessity for hearing aids as a result of injury; differing results of audiograms relied upon by the applicant and respondent; detailed examination of the medical evidence; Murphy v Allity and Diab v NRMA Insurance Ltd referred to; Held - award for the applicant and the respondent ordered to pay for the provision of bilateral hearing aids pursuant to the Workers Compensation Act 1987 and the Workers Compensation (Hearing Aid Fees) Order 2021.

Decision date: 9 February 2022| Member: Brett Batchelor

Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens [2022] NSWPIC 57

Claim for death benefit by estate of kitchen assembly worker; the deceased worked with a number of solvents and also from time to time as a welder; after ceasing work with the respondent, he developed bladder cancer which ultimately caused his death; the respondent denied liability, alleging the deceased had not suffered a work-related injury; the dispute was whether the deceased’s employment relevantly caused his fatal bladder cancer; Held - the applicant had not discharged the onus of proof in establishing a causal connection between the deceased’s employment and his bladder cancer; award for the respondent.

Decision date: 9 February 2022| Member: Cameron Burge

Motor Accidents Medical Review Panel Decision

Insurance Australia Ltd t/as NRMA v Sear [2022] NSWPICMP 15

The claimant was involved in a motor accident in 2013 and underwent cervical spine surgery in 2016 and lumbar spine surgery in 2017; the medical disputes related to whether the surgical procedures were reasonable and necessary and whether they were caused by the motor accident and the assessment of permanent impairment; Held - discussion of the insurer’s refusal to narrow the issues and whether such a position was inconsistent with the concept of a new assessment by a Review Panel under the Motor Accidents Compensation Act 1999; Allianz Australia Insurance Ltd v Rutland considered; expert evidence of biomechanical engineer considered relevant but not determinative; the acceptance or rejection of his evidence in other cases not relevant; Edwards v Noble applied; factual findings made that lumbar spine injured in the motor accident, but the cervical spine was not injured; the claimant admitted that neck symptoms only arose after two weeks, and other histories suggested that it was much longer; Panel did not accept that the delay in onset of symptoms together with the absence of treatment established injury to the cervical spine; finding made that the motor accident materially contributed to the need for surgical treatment of the lumbar spine; AAI Ltd v Phillips applied; surgical treatment held to be reasonable and necessary in the circumstances; claimant’s submission that a rejection that the surgery was reasonable and necessary is a finding of medical malpractice rejected; considerations given to factors discussed in Diab v NRMA; acceptance that the treatment was a last resort and conservative treatment had failed; the surgical treatment, whilst extensive, was appropriate and accepted medical procedures; claimant’s evidence that she had a positive outcome accepted and consideration given to the patient/doctor relationship which was unlike a pure medicolegal opinion; findings made that subsequent motor accident was a temporary exacerbation that resolved; assessment of impairment based on multilevel lumbar surgery assessed at 20% impairment as surgery found to be causatively related to the motor accident.

Decision date: 8 February 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Geoffrey Stubbs | Injury module: Spine and minor skin

Workers Compensation Medical Appeal Panel Decision

Teaupa v HealthShare NSW [2022] NSWPICMP 14

Allegation of demonstrable error and application of incorrect criteria with respect to assessment of two areas of function in the Psychiatric Injury Rating Scale, social functioning and concentration, persistence and pace; appellant submits that the Medical Assessor (MA)’s assessment was not available on the evidence; Held - the MA had performed the assessment in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021; the MA’s evaluation in each case was open and available on the evidence; Ferguson v State of New South Wales applied; Medical Assessment Certificate confirmed.

Decision date: 4 February 2022| Panel Members: Member William Dalley, Dr Patrick Morris and Dr Michael Hong | Body system: Psychological/psychiatric

Motor Accidents Merit Review Decision

Shqau v AAMI [2022] NSWPICMR 6

Merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1) of the MAI Act; gross earnings of self-employed painter and decorator; sole trader; treatment of business expenses including “instant asset write-off”; JobKeeper Payments as gross business income; Held – the reviewable decision is varied.

Decision date: 7 February 2022| Merit Reviewer: Maurice Castagnet

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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