Legal Bulletin No. 50
This bulletin was issued on 4 March 2022
Issued 4 March 2022
Welcome to the fiftieth 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 Decision
Fardell v Clinton Industries Pty Ltd  NSWSC 111
ADMINISTRATIVE LAW – Judicial review; workplace injury; Workers Injury Management and Workers Compensation Act 1998 (1998 Act); assessment of whole person impairment; section 323 of the 1998 Act deduction; jurisdictional error; error of law; matters that were not raised at first instance.
Decision date: 15 February 2022| Before: Harrison AsJ
Motor Accidents non-Presidential Member Decisions
Shamoun v Allianz  NSWPIC 67
Miscellaneous claims assessment; whether the proceedings should be dismissed; multiple non-compliances by the claimant with a direction given by the Personal Injury Commission; claimant not taking steps to prosecute his case; Held- proceedings dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 and rule 77(b) of the Personal Injury Commission Rules 2021.
Decision date: 10 January 2022| Member: Maurice Castagnet
Settlement approval; 81-year-old female; husband of the claimant fatally injured in a motor vehicle accident; claimant lodged an application for Compensation to Relatives Act 1897; no allegation of contributory negligence made; claim for funeral expenses; past and future loss of services, installation of home security system; Held- proposed settlement is just, fair, and reasonable; the proposed settlement is approved under section 6.23 (2)(b) of the Motor Accident Injuries Act 2017.
Decision date: 8 February 2022| Member: David Ford
Workers Compensation non-Presidential Member Decisions
Holmes v Central Coast Council  NSWPIC 70
Expedited assessment following work capacity decision to reduce psychiatrically injured worker’s weekly compensation to nil; whether decision made on basis of a misstatement by the vocational assessor of the recommendation made by the applicant’s GP; whether reliance on employer’s medico-legal Psychiatrist’s opinion as to capacity had any basis in fact; whether applicant’s status likely to continue indefinitely; Held - vocational assessor proceeded on wrong assumption that both the employer’s psychiatrist’s recommendations (fit for 14 hours per week) and the GP (fit for online study 8 hours per week) indicated a capacity to earn; GP stated before and after the work capacity decision was taken that applicant had no current capacity, and could only do online study from home for 8 hours per week; evidence confirmed that assessment; meaning of the phrase “continue indefinitely” considered; Roberts v University of Sydney applied; Chea v Woolworths considered; work capacity decision revoked; weekly payments restored pursuant to section 38(2) of the Workers Compensation 1987 Act.
Decision date: 17 February 2022 |Member: John Wynyard
Darious v Coles Group Supply Chain Pty Ltd  NSWPIC 71
Claim for ongoing weekly compensation and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses; accepted lumbar injury in lifting event at work; applicant claims injury to cervical spine and left shoulder in same event or injury to all body parts as a result of the nature and conditions of his employment; secondary psychological condition; inconsistencies in reported mechanism of injury and onset of symptoms in the medical evidence; prior symptoms and injuries at the relevant body parts not related to work; Held- the applicant failed to discharge his onus of demonstrating injury due to the nature and conditions of his employment or injury to his cervical spine in the frank event; the applicant sustained injury to his left shoulder in the frank event and a secondary psychological condition; total incapacity during period of weekly compensation claimed; awards for the applicant for weekly compensation and section 60 of the 1987 Act expenses.
Decision date: 7 February 2022| Member: Rachel Homan
Winiarski v Bankstown City Aged Care Pty Ltd  NSWPIC 72
Claim for costs of proposed shoulder replacement surgery; accepted injury to lumbar spine; respondent dispute alleged consequential condition to right shoulder; Held- applicant failed to establish that the injury to the lumbar spine on 18 November 2016 made a contribution to the fall on 9 November 2019; the applicant failed to discharge the onus upon her to establish that she sustained a consequential injury to her right shoulder as a result of the injury to her lumbar spine; award for the respondent.
Decision date: 18 February 2022 |Member: Carolyn Rimmer
Tahlia Louise Heycox by her tutor Shelley Young Heycox v SCPR & M Pennisi (no longer trading) & Others  NSWPIC 73
Claim for the death benefit and apportionment pursuant to sections 25 and 29 of the Workers Compensation Act 1987 (1987 Act) by the child of the deceased worker and the child’s mother; liability accepted; claim by child’s mother not pressed and submission made on her behalf that the worker’s child was the only person dependent on him and death benefit should be paid to her; McCafferty’s Management Pty Ltd v Pimlott, Aafjes v Kearney, Holdlen Pty Limited v Walsh and TNT Group 4 Pty Ltd v Halioris considered; Held - applicant was dependent on the worker at the date of his death; the applicant was the only person dependent on the worker at the date of his death; the first respondent to pay the sum of $504,350 to the NSW Trustee and Guardian to be held in trust pursuant to section 85(1)(a) of the 1987 Act for the applicant until she attains the age of 18 years.
Decision date: 18 February 2022 |Senior Member: Kerry Haddock
Thornton v Coles Supermarkets Australia Pty Ltd  NSWPIC 74
Claim under section 66 of the Workers Compensation Act 1987 (1987 Act) made, in November 2020, for lumbar spine injury from incident on 24 July 2014; liability accepted for payment of compensation since then; respondent files reply to application on 4 August 2021 noting quantum of the lump sum being the only issue; matter then referred to the medical assessor on 30 August 2021; respondent served notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 14 October 2021 seeking to dispute previously notified matters including whether incident occurred at all, or in the manner alleged by applicant, and whether any incident caused the injury; Held- the leave sought under section 289A (4) of the 1998 Act to rely on section 78 of the 1988 Act notice refused; application of Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services principles; in particular the merits and substance of the matter as well as the nature and extent of the delay producing likelihood of significant complexity and difficulty in a determination if the leave had been granted.
Decision date: 22 February 2022| Member: Michael Perry
Kassabian v IPN Medical Centres Pty Ltd t/as Sonic Health Group  NSWPIC 75
Employer denies claim for closed period of compensation solely on the basis of section 11A(1) of the Workers Compensation Act 1987; only issue for determination was whether the respondent’s actions with respect to discipline in investigating a medical practice manager were reasonable; Held- that while many aspects of the respondents disciplinary procedure was exemplary, prohibiting the worker from communicating with medical practitioners in the practice was not reasonable; these medical practitioners may have been able to provide evidence to rebut the allegation that the applicant had breached the respondent’s Safe & Quality Use of Medications Policy; award for the worker.
Decision date: 23 February 2022 |Member: Paul Sweeney
Workers Compensation President's Delegate Decision
Hakimi v Jupiter Pty Ltd  NSWPIC 69
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; whether applicant could work as a delivery driver; had worked as a machine operator; lack of medical evidence to support claimed extent of incapacity; role had been approved; respondent had attempted to provide rehabilitation services; Wollongong v Dewar discussed; Held- that role was not theoretical; award for the respondent.
Decision date: 10 February 2022 | President’s Delegate: Parnel McAdam
Motor Accidents Medical Review Panel Decision
Fisher v Insurance Australia Limited t/as NRMA Insurance  NSWPICMP 27
Motor Accidents Injuries Act 2017 (MAI Act); claimant sustained injuries to her neck and back in a two-impact collision at a roundabout; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment (WPI) assessed at 10%; claimant applied for and was granted review under section 7.26 of the MAI Act; no dispute as to neck injury (5%); no real dispute as to current WPI of back injury (10%) but dispute about deduction for pre-existing impairment; claimant had pre-existing back symptoms and proceeded to surgery after the accident; dispute as to scarring in respect of the back surgery; Held- certificate revoked and WPI assessed at 11%; consideration of clause 6.31 of the Motor Accident Guidelines regarding pre-existing impairment and best fit the table for the evaluation of minor skin impairment (TEMSKI) regarding scarring.
Decision date: 21 February 2022| Panel Members: Member Belinda Cassidy, Medical Assessor Margaret Gibson and Shane Moloney| Injury module: Spine and minor skin
Workers Compensation Medical Appeal Panel Decision
Marciano v State of New South Wales (Ambulance Service of NSW)  NSWPICMP 26
Appellant challenged the Medical Assessor’s (MA) assessment in respect of the Psychiatric Impairment Rating Scale categories, namely self-care and personal hygiene and social and recreational activities; Held- Panel confirmed assessment in relation to self-care and personal hygiene but revoked the assessment regarding social and recreational activities; MA erred in failing to consider Ballas v Department of Education (State of NSW); Medical Assessment Certificate revoked.
Decision date: 18 February 2022| Panel Members: Member Deborah Moore, Dr Michael Hong and Dr Patrick Morris| Body system: Psychological/psychiatric
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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