Legal Bulletin No. 51
This bulletin was issued on 11 March 2022
Issued 11 March 2022
Welcome to the fifty-first 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.
Appeal Case Summaries
Court of Appeal Decision
ADMINISTRATIVE LAW – Judicial review; jurisdictional error; Motor Accidents Compensation Act 1999 (MAC Act); section 63(3) of the MAC Act; power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment; whether decision maker exceeded statutory role by determining asserted error on the merits; whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there were significant differences of opinion among medical practitioners; whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect; whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer.
Decision date: 7 March 2022| Before: Basten JA, Macfarlan JA and White JA
WORKERS COMPENSATION - Section 4 of the Workers Compensation Act 1987; injury arising out of employment.
Decision date: 1 March 2022| Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Dispute as to whether the insurer is entitled to reduce payments of weekly statutory benefits on account of the claimant’s contributory negligence, pursuant to section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); claimant was injured when attempting to cross roadway and stepped behind insured vehicle which was parallel parked next to the kerb; the insured reversed his vehicle causing collision; Held- insurer made an assessment of contributory negligence of 50%; contributory negligence assessed at 25%.
Decision date: 15 February 2022| Member: Elizabeth Medland
Claims assessment; damages claim only; liability wholly admitted; injury; passenger; head-on collision; causation of damage; combination of psychological and functional disability; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity; loss of opportunity to change career; theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witnesses; interest; legal costs; Personal Injury Commission Rules 2021; Malec v JC Hutton; Husher v Husher; Wallace v Kam; Luntz, Assessment of Damages for Personal Injury and Death, 5th edition considered; Held- on the issue of liability for the claim, the insurer admits it owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; damages assessed as $1,084,866; costs assessed as $79,318.89 in accordance with the Motor Accident Injuries Act 2017.
Decision date: 18 February 2022| Member: Terence O’Riain
Workers Compensation non-Presidential Member Decisions
Claim for lump sum statutory benefits; Held- liability accepted by the applicant; apportionment and dependency determined.
Decision date: 23 February 2022 (amended 24 February 2022) |Senior Member: Elizabeth Beilby
Claim for weekly benefits, medical expenses and lump sum compensation; the applicant resided in Queensland the time of filing the claim against the Hunter Shire Council; issue relates to whether the Personal Injury Commission (the Commission) has jurisdiction to determine claim; Ritson v State of New South Wales applied; Held- opinion given that the Commission lacks jurisdiction to determine claim.
Decision date: 24 February 2022 |Senior Member: Elizabeth Beilby
Claim for the cost of lumbar spinal surgery pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); injury in issue under section 4 of the 1987 Act, and submission that any reasonably necessary surgery resulted more from the nature and conditions of the applicant’s employment as a school cleaner rather than a frank incident when lifting a vacuum cleaner; detailed examination of medical evidence; finding of frank injury on the date claimed by the applicant; finding that surgery reasonably necessary as a result of the claimed frank injury; Diab v NRMA Ltd considered; Held- respondent ordered to pay doe the costs of and incidental to the lumbar spinal surgery proposed by the treating neurosurgeon.
Decision date: 24 February 2022 | Member: Brett Batchelor
The worker suffered an Achilles injury and was paid all entitlements under the Workers Compensation Act 1987 (1987 Act) by the insurer; the worker was a courier driver who provided his own truck and was paid for the work based on the matters such as the size of the delivery and the travel distance; higher rates were paid for priority deliveries and those occurring outside normal business hours; the issues were whether the employer could litigate this dispute and whether business expenses should be deducted from the income in calculating the pre-injury average weekly earnings (PIAWE) under Schedule 3 of the 1987 Act; Held- section 287(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is expressed in clear words that a dispute can arise between an employer and the insurer; the dispute between the employer and the insurer need only be in connection with a claim for compensation and did not require a dispute on the worker’s claim brought against the insurer; insurer’s submission that the provision read contextually with the mandatory provisions of the insurance policy rejected; reference made to authorities that subsequent delegated legislation cannot aid in the construction of an Act; Mine Subsidence Board v Wambo Coal Pty Ltd applied; further, clause 24 of the mandatory insurance provisions specified that the policy was subject to the provisions of the Act; insurer’s submission is inconsistent with other provisions in the 1987 Act where an employer can dispute an insurer’s decision; it would be incorrect to read section 287(1)(b) of the 1987 Act down and restricted to those situations where the 1987 Act expressly provided a right to contest an insurer’s decision; insurer’s submissions that a plain reading of the section would create “all sorts of litigation” were rejected; there were proper reasons based on premium effects why an employer should be able to contest an insurer’s decision in the Commission; the employer was entitled to litigate the issue in the Commission; as to PIAWE; the earnings in clauses 2 and 6 of Schedule 3 of the 1987 Act did not specify that expenses necessarily incurred were deducted from earnings; this contrasted with the premium provisions in section 174 of the 1987 Act which were contextually different and did not assist in the interpretation; the agreement between the employer and the worker specified the rates which were dependent upon work performed and were properly classified as earnings within the meaning of Schedule 3 of the 1987 Act; the insurer had correctly assessed the worker’s PIAWE based on the provisions of the agreement.
Decision date: 25 February 2022 |Principal Member: John Harris
Claim for section 60 of the Workers Compensation Act 1987 expenses for left shoulder arthroscopic rotator cuff repair and biceps tenodesis; accepted injury to left foot and ankle in fall from bobcat; whether left shoulder injury and/or consequential condition; previously reported shoulder symptoms and investigations; lack of contemporaneous evidence of shoulder involvement in falls; use of crutches following hindfoot surgery; Held- the applicant failed to discharge his onus of demonstrating injury and consequential condition due to secondary fall; consequential left shoulder condition due to use of crutches; the applicant failed to discharge his onus of demonstrating that surgery reasonably necessary as a result of injury.
Decision date: 28 February 2022 |Member: Rachel Homan
Claim for permanent impairment compensation; injury to certain body parts accepted, others disputed; causation; whether applicant suffered injury to cervical spine, left shoulder and/ or a consequential condition to his right knee; Kooragang Cement Pty Ltd v Bates followed; Castro v State Transit Authority discussed; Held- a common-sense evaluation of the evidence establishes the applicant suffered injury to his cervical spine; there is contemporaneous complaint and investigation of that body system; the evidence establishes the applicant suffered a consequential condition to his right knee; Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd discussed; the evidence does not establish on the balance of probabilities that the applicant suffered an injury to his left shoulder; matter referred for assessment of permanent impairment of the applicant’s left knee, lumbar spine, right shoulder, cervical spine, right knee and for assessment of scarring; award for the respondent on the claim for injury/ consequential condition to the left shoulder.
Decision date: 28 February 2022 | Member: Cameron Burge
Claim for medical expenses in respect of psychological injury following an incident where the applicant was denied use of toilet facilities at railway station; liability for injury and medical treatment disputed; respondent relied on section 11A of Workers Compensation Act 1987 (1987 Act), in respect of discipline; applicant claimed aggravation, acceleration, exacerbation or deterioration of disease, pursuant to section 4(b)(ii) of the 1987 Act; general order for medical expenses claimed; Held- applicant sustained aggravation of disease, to which employment was main contributing factor, pursuant to section 4(b)(ii) of the 1987 Act; section 11A of the 1987 Act has no application, as injury occurred before the disciplinary meetings; the respondent in any event would not have met its onus to establish a defence pursuant to section 11A of the 1987 Act; Pirie v Franklins Ltd and Department of Education and Training v Sinclair considered; medical treatment reasonably necessary as a result of the injury; consideration of Diab v NRMA Ltd.
Decision date: 1 March 2022 |Senior Member: Kerry Haddock
Psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant alleged she sustained a psychological injury due to bullying and harassing behaviour at work by her supervisor; whether the applicant sustained an injury pursuant to sections 4(a), 9A and 11A(3) of the 1987 Act; respondent raised defence pursuant to section 11A of the 1987 Act; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; Held– applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 11A(3) of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; matter referred to President for referral to a Medical Assessor for determination of whole person impairment.
Decision date: 2 March 2022 |Member: Karen Garner
Claim for consequential conditions; Held- award for applicant all body parts save for right hip.
Decision date: 2 March 2022 |Senior Member: Elizabeth Beilby
Workers Compensation Medical Appeal Panel Decisions
Ms Radnidge sustained a psychological injury in the course of her employment as a disability support worker; the Medical Assessor (MA) assessed 15% whole person impairment and found she had no pre-existing psychological condition; failure by MA to refer to clinical note of GP made 6 weeks before work injury in which he diagnosed anxiety and depression and prescribed anti-depressants; Appeal Panel found that the Approved Medical Specialist erred in failing to provide adequate reasons for concluding that there no pre-existing condition; the Appeal Panel applied a deduction of one-tenth pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and part 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held- Medical Assessment Certificate revoked.
Decision date: 24 February 2022| Panel Members: Member Carolyn Rimmer, Medical Assessor Michael Hong and Patrick Morris| Body system: Psychological/psychiatric
Appellant challenged the Medical Assessor’s (MA) assessment in respect of 3 Psychiatric Impairment Rating Scale categories, namely self-care and personal hygiene, concentration, persistence and pace (CPP) and employability and adaptation; Panel confirmed assessment in relation to self-care and personal hygiene and CPP but revoked the assessment regarding employability; appellant’s symptoms and difficulties in public places together with her failed attempts at voluntary work meant that she was more properly assessed as a Class 5; Held- Medical Assessment Certificate revoked.
Decision date: 24 February 2022| Panel Members: Member Deborah Moore, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/psychiatric
Appellant worker injured his right shoulder and neck and subsequently suffered a consequential condition in his left shoulder; appellant claimed to have a permanent impairment from those injuries and consequential condition; matter referred to Medical Assessor (MA) to assess; appellant contended that MA’s assessment of permanent impairment of cervical spine was not done in accordance with correct criteria and was not based on all of the MA’s findings from examination and on all relevant documentary evidence with which MA had been briefed; Held- Appeal Panel found that MA had made assessment in accordance with correct criteria and all of the evidence supported the assessment the MA made.
Decision date: 25 February 2022| Panel Members: Member Marshal Douglas, Dr Margaret Gibson and Dr Richard Crane | Body system:Cervical spine, right upper extremity (shoulder), left upper extremity (shoulder), Scarring right shoulder
Appellant challenged the MA’s assessment in respect of all 6 Psychiatric Impairment Rating Scale categories; fresh evidence rejected; further statements merely cavilled with the MA’s assessment; Petrovic v BC Serv No 14 Pty Limited and Ors considered; Panel confirmed assessment in relation to all categories save for Travel; the Medical Assessor assessed Class 1 but there was, but there was evidence the appellant avoided areas he had attended in the course of his duties; Panel accepted a Class 2 was appropriate, but that change did not alter the overall impairment assessment; Held -Medical Assessment Certificate confirmed.
Decision date: 25 February 2022| Panel Members: Member Deborah Moore, Professor Nicholas Glozier and Dr Michael Hong| Body system: Psychological/psychiatric
Appeal from finding of 11% whole person impairment (WPI) for injury to hips, back and for scarring; error in calculation of hip entitlement conceded by respondent; whether lumbar DRE I appropriate where claimant buried when an earth wall collapsed on him, and where he still complained of back symptoms; whether 1% finding for scarring appropriate when criteria present to suggest 2% or more; Held- calculation of conceded error incorrect and increased; DRE I category confirmed, as Medical Assessor (MA) aware of complaints and no DRE II criteria satisfied; MA satisfied requirement to explain his scarring assessment in view of the nice distinction between the claimant being able to locate the scar, and being able to ‘easily’ locate the scar; Medical Assessment Certificate (MAC) revoked and fresh MAC issued for 22% WPI.
Decision date: 2 March 2022| Panel Members: Member John Wynyard, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: Lumbar spine, right lower extremity (hip), left lower extremity (hip) and Scarring TEMSKI
Commercial fisherman suffered a lumbar spine injury (L3/4) lifting a box of fish and underwent surgery; previous lumbar spine injury at a different level (L5/S1) treated conservatively; Medical Assessor did not make allowance for radiculopathy but also did not make a deduction under section 323 Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker did not fulfil requirements in Guidelines for allowance for radiculopathy; no basis for section 323 of the 1998 Act deduction when surgery was at a different level and assessment was appropriate application of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edand Guidelines; Held– Medical Assessment Certificate confirmed.
Decision date: 2 March 2022| Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Roger Pillemer | Body System: Lumbar spine
Motor Accident Merit Review Decisions
Merit Review; legal costs for treatment and care dispute; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017; Held- claimant not awarded maximum regulated legal costs.
Decision date: 24 February 2022| Merit Reviewer: Ray Plibersek
Merit review; dispute about payment of statutory benefits under section 3.24 and/or 3.26 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of treatment and care; jurisdiction; schedule 2, clause 1(j) of the MAI Act; whether services provided by the claimant to dependents before the accident; whether thresholds in section 3.26 of the MAI Act met; whether services are for others or for the claimant; Held – the reviewable decision is affirmed.
Decision date: 24 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); the meaning of earner schedule 1, clause 2; whether the claimant is an earner; burden of proof; whether sufficient evidence to establish earner; section 6.24 of the MAI Act duty to co-operate; failure to co-operate; Held– the reviewable decision is affirmed.
Decision date: 25 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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