Legal Bulletin No. 49
This bulletin was issued on 25 February 2022
Issued 25 February 2022
Welcome to the forty-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.
Supreme Court Decisions
Allen v Dux Manufacturing Limited [2022] NSWSC 158
No point of principle.
Decision date: 23 February 2022 | Before: Harrison AsJ
Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161
ADMINISTRATIVE LAW — Jurisdictional error; decision by Review Panel under Motor Accidents Compensation Act 1999 (NSW); whether Panel failed to respond to a substantial argument; whether Panel decided the matter on a basis of which the plaintiff was not given notice; function of Panel to make a new assessment.
Decision date: 24 February 2022 | Before: McCallum JA
Motor Accidents non-Presidential Member Decisions
QBE Insurance (Australia) Limited v Lamborn [2022] NSWPIC 58
Settlement approval; 75 year old female; passenger in a motor vehicle involved in a head on collision; sustained severe internal injuries which included a serosal transverse colon tear and approximal jejunal laceration requiring laparotomy and repair, non-operative compression of L3 vertebra significant bruising on right side of the body, left arm and shoulder and cuts and abrasions to the forehead and hands; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; no claim for past or future economic loss; Held - her proposed settlement is just, fair, and reasonable; settlement approved.
Decision date: 20 January 2022| Member: David Ford
Maggar v NRMA [2022] NSWPIC 59
Miscellaneous claims assessment; section 3.28 and schedule 2, clause (3)(e) of the Motor Accident Injuries Act 2017; wholly or mostly at fault; rider of scooter; single vehicle accident; scooter slid on gravel/sand on rough, uneven patch of roadway at exit of roundabout; claimant dislodged from scooter and hit bitumen with force; Held - claimant not wholly or mostly at fault; not riding recklessly or inattentively when negotiating the roundabout; road conditions not immediately visible; claimant’s legal costs assessed at the maximum regulated fee; no exceptional circumstances warranting exceptional costs order.
Decision date: 24 January 2022| Member: Maurice Castagnet
Allianz Australia Insurance Limited v McEvoy [2022] NSWPIC 60
Settlement approval; 98-year-old female; pedestrian struck by a motor vehicle; sustained a severe injury to her left leg which resulted in the claimant undergoing a below knee amputation of the left leg due to an open fracture of the distal tibia with the excessive soft tissue loss; no allegation of contributory negligence; agreed the claimant’s injuries exceeded the 10% threshold and further conceded her entitlement to non-economic loss; no claim for past or future economic loss; Held- her proposed settlement is just, fair, and reasonable; settlement approved.
Decision date: 31 January 2022| Member: David Ford
Settlement approval; non-economic loss; pre-accident weekly earnings; provision of buffers; non-representation; Held - the amount of the claim for damages is approved in the total amount of $368,913.19.
Decision date: 4 February 2022| Member: Hugh Macken
Kennedy v GIO Insurance (Australia) Ltd [2022] NSWPIC 62
Miscellaneous claims assessment; application for a claim for statutory benefits made after 28 days after the motor accident; section 6.13(2) of the Motor Accident Injuries Act 2017; can time be extended; does section 50F of the Limitation Act 1969 apply to the Claimant to suspend the limitation period; statutory interpretation; Interpretation Act 1987; Project Blue Sky Mining v Australian Broadcasting Authority applied; Held - insurer is entitled to refuse payment of weekly payments of statutory benefits for the period before the claim was made; time for making the claim cannot be extended or suspended; section 50F of the Limitation Act 1969 does not apply; legal costs awarded to Claimant.
Decision date: 11 February 2022| Member: Ray Plibersek
ACV v The Nominal Defendant [2022] NSWPIC 64
Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; denial of liability for any statutory benefits by Nominal Defendant under section 3.36 of the MAI Act on the basis the claimant was the owner and driver of an uninsured vehicle and his injuries were caused wholly or mostly by his fault; single vehicle accident occurred when claimant drove deliberately at speed into a pole with the stated intention of committing suicide; Held - the claimant was not wholly or mostly at fault; medical evidence supported a finding that the claimant had long standing mental health issues and that the accident occurred when the claimant was in the midst of a medical (psychotic) episode; the blameless accident provisions in the Motor Accidents Compensation Act 1999, the no-fault provisions of the MAI Act and the cases of Davis v Swift, AAI Limited t/as GIO and Whitfield v Melenewycz considered.
Decision date: 14 February 2022| Member: Belinda Cassidy
Brown v The Nominal Defendant [2022] NSWPIC 65
Motor Accident Injuries Act 2017; statutory benefits claim; denial of liability for statutory benefits beyond the first 26 weeks on the basis the accident was caused wholly or mostly by the fault of the claimant; initial impact between claimant and QBE insured vehicle caused loss of control and two further impacts with another vehicle and an object; police report concluded accident caused by unidentified vehicle resulting in claim being transferred to the Nominal Defendant; incorrect history recorded by police; clarification from QBE insured whether unidentified vehicle involved obtained after proceedings commenced in Commission; Held - no unidentified vehicle involved in the cause of the accident; accident caused wholly by the fault of the claimant; in the alternative there may have been primary fault on the part of QBE’s insured vehicle but likely to be significant reduction for contributory negligence and therefore claimant would have been mostly at fault.
Decision date: 14 February 2022| Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Smith v Toll Pty Ltd [2022] NSWPIC 63
Accepted injury to left ankle; worker claimed consequential conditions to lumbar spine and right ankle; evidence both conflicting and not persuasive for a finding of consequential conditions as claimed; Kooragang Cement Pty Ltd v Bates, Comcare v Martin, Grant v Dateline Imports Pty Ltd and Simpson v Ausgrid all considered; Held - worker failed to discharge onus to prove consequential conditions; the assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation; the applicant has no entitlement to lump sum compensation.
Decision date: 11 February 2022| Member: Deborah Moore
Bunce v Sydney Traffic Control [2022] NSWPIC 66
Claim for permanent impairment compensation for primary psychological injury; respondent disputed claim on the basis of dispute as to the degree of permanent impairment and also that there was a secondary psychological condition or injury; considered whether section 65A(1) of the Workers Compensation Act 1987 (1987 Act) is in the nature of a defence and whether respondent has the onus; Parker v City of Rockingham with reference to Currie v Dempsey, and The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd with reference to Vines v Djordjevitch, Ritchie v Department of Community Services, State of New South Wales (NSW Department of Education) v Kaur ; whether section 4 of the 1987 Act injury must be established; State of New South Wales (NSW Department of Education) v Kaur considered; not secondary psychological condition; Held- section 65A(1) of the 1987 Act is a disentitlement provision in the nature of a defence and the onus is on the respondent to prove injury within the meaning of section 4 of the 1987 Act, not a consequential condition; found applicant had not sustained secondary psychological injury; mattered referred to a Medical Assessor for assessment.
Decision date: 14 February 2022| Member: Michael Wright
Motor Accidents Medical Review Panel Decisions
El Falak v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 24
Medical Review; permanent impairment; inconsistency on examination; causation; fractured femurs; shoulder injury; thumb injury; cervical spine injury; lumbar spine injury; hip injury; knee injury; scarring; combined certificate; the claimant suffered serious injury in a motor vehicle accident; the dispute related to the assessment of permanent impairment; inconsistency on examination accepted by Panel as result of maladaptive cognitive and behavioural response to persistent pain with the presence of a comorbid mood disorder; questions of causation of injury to cervical spine, left shoulder injury and bilateral thumb injuries addressed; Held- left femur fracture, right femur fracture, soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, soft tissue injury to the right shoulder, soft tissue injury to the left shoulder, bilateral hip injury, bilateral knee injury, right CMC joint injury-thumb, left CMC joint injury-thumb caused by the accident; soft tissue injury to the right shoulder, soft tissue injury to the left shoulder, right CMC joint injury-thumb and left CMC joint injury - thumb gave rise to a permanent impairment under the combined tables of 10%; scarring to both forearms and hands and to both thighs previously assessed at 4% whole person impairment; new combined impairment certificate issued certifying a combined permanent impairment of 14%.
Decision date: 16 February 2022| Panel Members: Member Susan McTegg, Medical Assessor Thomas Rosenthal and Medical Assessor Michael Couch| Injury module: Lower limb, upper limb and spine
Insurance Australia Limited t/as NRMA Insurance Limited v McCabe [2022] NSWPICMP 25
Medical Review Panel matter; claimant sustained injuries to neck, lower back, both shoulders and chest; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment assessed at greater than 10% by three Assessors and a combined certificate issued; insurer applied and was granted review under section 7.26 of the Motor Accident Injuries Act 2017 in respect of two of the three assessments; Panel determined it would determine both matters together; claimant’s chest injury included the rupture of a breast implant leading to extrusion of silicone into the breast tissue and lymph nodes; both implants removed 10 months after the accident; claimant developed granulomas in the injured breast due to the extruded silicone and development of granulomas; granulomas difficult to distinguish from malignancy and mastectomy recommended and undertaken with insertion of new implant and reduction of uninjured breast to achieve symmetry; insurer did not concede degree of impairment and queried whether the claimant has the total loss of a ‘mammary gland’ in circumstances where her left breast had been ‘restored to a substantially similar state’; Held - distinction between ‘mammary gland’ and ‘breast’ discussed; nature of surgery undertaken reviewed and clauses 6.256 and 6.257 of the Motor Accident Guidelines (the MA Guidelines) considered and applied; surgical removal of nipple, aureole, ducts, lobules, ligaments and fatty tissue down to the pectoral muscle on the chest was total loss of mammary gland within the meaning of clause 6.256 of the MA Guidelines; claimant deemed to have a whole person impairment of greater than 10%.
Decision date: 17 February 2022| Panel Members: Member Belinda Cassidy, Medical Assessor Neil Berry and Medical Assessor Michael McGlynn| Injury module: Upper limb
Workers Compensation Medical Appeal Panel Decisions
Hartnett v Secretary, Department of Education [2022] NSWPICMP 16
Appeal against the assessment of impairment in respect of psychological injury in 2008 alleging deterioration, additional evidence, incorrect criteria and demonstrable error; evidence of deterioration confined to a letter from treating psychiatrist (the additional evidence) stating the worker had suffered an adverse reaction upon learning of the Medical Assessment Certificate (MAC); appellant also submitted assessments in respect of five of the six areas of function in the Psychiatric Impairment Rating Scale (PIRS) table was not available on the evidence; the appellant also alleged that the Medical Assessor (MA) had incorrectly applied section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in assessing “concentration persistence and pace”; Held - in respect of appeal based on “additional evidence”, the letter could not be said to constitute “additional evidence”; Lucacevic v Coates Hire Operations Pty Ltd applied; there was no other evidence of deterioration and the grounds of deterioration and additional information failed; the assessments with respect to the five areas of function complained of were open to the MA on the evidence and no error or application of incorrect criteria was demonstrated; however, assessment of the area of function “concentration, persistence and pace” was affected by error; that error was not a deduction pursuant to section 323 of the 1998 Act but it appeared to the Panel that the MA had attempted to apply section 65A(2) of the Workers Compensation Act 1987 to this area of function; it was not clear from the reasons in the MAC whether any deduction had been made; the Panel considered that this approach was inappropriate in the light of Mercy Connect Limited v Kiely; adopting that approach the Panel came to the same conclusion as the MA with respect to this area of function; MAC confirmed.
Decision date: 10 February 2022| Panel Members: Member William Dalley, Dr Michael Hong and Dr Patrick Morris| Body system: Psychological/psychiatric
Dnata Catering Australia Subsidiary 1 Pty Ltd v Bazzi [2022] NSWPICMP 17
Respondent worker sustained primary psychological injury deemed to have occurred on 17 October 2018; parties agreed that respondent worker developed secondary psychological injury resulting from an injury to the back on 11 April 2019; Held- Medical Assessor erred in failing to address the secondary psychological condition; respondent worker re-examined; Medical Assessment Certificate revoked.
Decision date: 11 February 2022| Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Patrick Morris| Body system: Psychological/psychiatric
Lynch v D & J Mikkelsen Pty Ltd [2022] NSWPICMP 18
Appellant worker sustained injury to lumbar spine and left lower extremity; Approved Medical Specialist (AMS) assessed 8% whole person impairment for the lumbar spine and deducted one fifth for pre-existing condition; on examination AMS found loss of asymmetry of reflexes, positive nerve root tension and muscle wasting; failure to provide reasons as to why the criteria found on clinical examination did not satisfy the requirements for radiculopathy as set out in clause 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 was a demonstrable error; Held – Medical Assessment Certificate revoked.
Decision date: 11 February 2022| Panel Members: Member Carolyn Rimmer, Dr Margaret Gibson and Dr Roger Pillemer| Body system: lumbar spine and left lower extremity
Orange City Council v Maric [2022] NSWPICMP 19
Lumbar spine injury; appeal limited to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; Medical Assessor had deducted one-tenth under section 323 of the 1998 Act to account for the pre-existing injury, abnormality or condition; the employer appealed the extent of the deduction; the Appeal found that the deduction of one-tenth was not at odds with the available evidence and confirmed the Medical Assessment Certificate (MAC); Held- MAC confirmed.
Decision date: 15 February 2022| Panel Members: Member Jane Peacock, Dr Brian Noll and Dr Gregory McGroder |Body system: Cervical spine, lumbar spine and right lower extremity
Bourke Aboriginal Health Service v Doolan [2022] NSWPICMP 20
Employer appeal against failure by Medical Assessor (MA) to make a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for pre-existing asymptomatic psychological injury; Held - error made by MA in that he found that only pre-existing work-related psychological injuries should be deducted; evidence confirmed the presence of pre-existing depression that contributed to the impairment caused by the subject injury; Medical Assessment Certificate revoked, and 1/10th deduction certified.
Decision date: 15 February 2022| Panel Members: Member John Wynyard, Dr Julian Parmegiani and Dr Doug Andrews| Body system: Psychological/psychiatric
Pengilly v TAFE NSW [2022] NSWPICMP 21
Appeals by the worker against a 1/10th deduction by the Medical Assessor (MA), and by the employer against his evaluation of the Travel category in the Psychiatric Impairment Rating Scale; whether MA had given adequate reasons for his section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) finding in the face of the unanimous view of the qualified specialists for each party; whether the MA had given adequate reasons for finding a class 2 value for the “Travel” category in the face of the unanimous view of the qualified specialists for each party that a class 1 value was appropriate; Held- the reasons given by the MA regarding the section 323 of the 1998 Act deduction included matters of past history that neither specialist was aware of, and his reasoning was adequate; the opinions of other practitioners were not binding on him in any event; Wingfoot Australia Partners Pty Ltd v Kocak and Jones v The Registrar WCC applied; similarly, the unanimous opinions regarding the appropriate class value for the category was not binding where an MA reached a different conclusion; the MA had the advantage of the face-to face video hearing; MA reasons confirmed, but Medical Assessment Certificate revoked to correct mathematical rounding error by the MA.
Decision date: 16 February 2022| Panel Members: Member John Wynyard, Professor Nicholas Glozier and Dr Douglas Andrews| Body system: Psychological/psychiatric
Transport for NSW v Pettit [2022] NSWPICMP 22
Appeals in respect of assessment of whole person impairment (WPI) for two separate injuries; in assessing the lumbar spine, the parties agreed that the components of the assessment, DRE category, and Table 4.2 components added together totalled 26% WPI when Medical Assessor (MA) had incorrectly calculated 27% WPI; Held - error clearly established but parties’ agreement was not in accordance with paragraph 4.37 of the WorkCover Medical Assessment Guidelines 2006 which required resort to the Combined Values Chart when combining DRE and interference with ADLs with Table 4.2 modifiers; Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores & Ors applied to give 25% WPI; the appellant employer submitted in respect of injury to the right knee that the MA had failed to assess a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 when that course was contrary to the weight of the evidence; an earlier assessment by an Approved Medical Specialist in 2011 had assessed a deduction of 2/5 in respect of pre-existing osteoarthritis; there was evidence of pre-existing osteoarthritis at the date of injury and the evidence required the MA to consider whether any part of the impairment resulted from that condition; the MA had not disclosed his reasons for making no deduction and error was established; a deduction of one-tenth was assessed and applied.
Decision date: 16 February 2022| Panel Members: Member William Dalley, Dr Mark Burns and Dr John Ashwell| Body system: Lumber spine and right lower extremity
State of NSW (HealthShare NSW) v Echeverry [2022] NSWPICMP 23
Worker alleged that she suffered permanent impairment as a result of a “personal injury” caused by “nature and conditions” of her employment involving arduous work during a period of 10 years; matter referred to Medical Assessor (MA) on this basis; MA certified 17% whole person impairment and made no deduction for any previous injury; employer alleged that the MA should have made a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of frank injuries which occurred during the 10 year period of arduous work it had conceded caused personal injury; Held- it was not open to the MA to make a deduction for injuries during this period as they were not “previous injuries”; Cullen v Woodbrae Holdings Pty Ltd considered and applied; Medical Assessment Certificate confirmed.
Decision date: 16 February 2022| Panel Members: Member Paul Sweeney, Dr James Bodel and Dr David Crocker| Body system: Right upper extremity and left upper extremity
Motor Accident Merit Review Decisions
Glover v GIO [2022] NSWPICMR 7
Dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; self-employed; Held - the claimant’s gross earnings is their gross profits; being their gross receipts less their immediate cost of production.
Decision date: 7 February 2022| Merit Reviewer: Kriesen Seeneevassen
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of pre-accident earning capacity schedule 1, clause 7 of the MAI Act; meaning of post-accident earning capacity schedule 1, clause 8 of the MAI Act; qualifications, training, skills and experience; suitable employment; whether overqualification is relevant consideration; costs; Held – the reviewable decision is affirmed.
Decision date: 10 February 2022| Merit Reviewer: Katherine Ruschen
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of pre-accident weekly earnings (PAWE); schedule 1, clause 4(1) of the MAI Act; PAWE; calculation of PAWE for sole trader or self-employment; Held – the reviewable decision is varied.
Decision date: 11 February 2022| Merit Reviewer: Katherine Ruschen
Zhao v Allianz [2022] NSWPICMR 10
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of pre-accident weekly earnings (PAWE) schedule 1, clause 4(3) and 4(2)(b) of the MAI Act; PAWE; change of circumstances; COVID-19 disaster payments; whether PAWE impacted by COVID-19; whether adjustment for COVID-19 allowed; calculation of PAWE; Held – the reviewable decision is set aside.
Decision date: 14 February 2022| Merit Reviewer: Katherine Ruschen
Khadka v CIC-Allianz [2022] NSWPICMR 11
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of pre-accident earning capacity; schedule 1, clause 7 of the MAI Act; meaning of post-accident earning capacity; schedule 1, clause 8 of the MAI Act; employment reasonably available; whether circumstances other than training, skills and experience relevant to pre-accident earning capacity; weekly benefits under section 3.8 of the MAI Act; Held– the reviewable decision is set aside.
Decision date: 17 February 2022| Merit Reviewer: Katherine Ruschen
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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