Legal Bulletin No. 52

Issued 18 March 2022

Welcome to the fifty-second 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

Woolstar Pty Ltd v Lando [2022] NSWSC 241

WORKERS COMPENSATION — Disease injury; where first defendant employed by Woolworths from February 1995; where first defendant tripped on step and suffered injuries to her right hip, right wrist and right ankle and consequential injury to her left hip; first defendant made a claim under section 66 of the Workers Compensation Act 1987 for permanent impairment; where plaintiff disputed liability; dispute referred to the Workers Compensation Commission for determination; dispute referred for medical assessment; appeal against medical assessment; where Appeal Panel declined to make a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of disease injury to first defendant’s right hip by reason of a pre-existing condition; whether Appeal Panel exceeded its jurisdiction by making ‘liability finding’ as between plaintiff and first defendant and departing from the findings of the Arbitrator at the Workers Compensation Commission.

Decision date: 10 March 2022 | Before: Simpson AJ

Presidential Decision

McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8

WORKERS COMPENSATION - Section 9A of the Workers Compensation Act 1987; Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd considered and applied; Held- Member’s Certificate of Determination dated 8 June 2021 is revoked; matter remitted to another non-presidential member for re-determination.

Decision date: 4 March 2022 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Alves [2022] NSWPIC 91

Claims assessment; assessment of damages; aggravation of asymptomatic degenerative changes on both wrists; whether aggravation has ceased; assessment of past and future economic loss; appropriate basis to assess loss; whether claimant had a practical residual capacity to earn; Nominal Defendant v Livaja considered; whether vicissitudes should be assessed at greater than 15%; Held- aggravation of degenerative changes in the wrists due to the accident persist; ongoing loss of capacity to earn that will be productive of financial loss attributable to wrist injuries; claimant had a practical residual capacity to earn; vicissitudes assessed at 20%; allowance made for past and future economic loss.

Decision date: 1 March 2022| Member: Brett Williams

Saleh v Allianz Australia Insurance Limited [2022] NSWPIC 97

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; claimant passenger in public bus; injured when she fell as she moved down the aisle to alight from the bus; CCTV footage provided but no expert evidence; Member invited to make findings based on her interpretation of the footage; Held- claimant wholly at fault; no evidence bus driver braked sharply or suddenly as alleged; no evidence any other passenger was thrown about the bus as alleged; cause of accident was claimant’s failure to take any care for her own safety; claimant did not hold onto anything as she stood up and moved through the bus; claimant held mobile phone in one hand and bus ticket in the other; no matter of principle; costs allowed on the regulated basis.

Decision date: 9 March 2022| Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Allport v Wollongong City Council [2022] NSWPIC 87

Claim for weekly payments psychological injury; whether worker sustained an injury in the course of her employment; whether expert opinions were provided in a fair climate; reference to Paric v John Holland (Constructions) P/L and Craddock v GH Varley P/L; in the alternative, defences pursuant to section 11A of the Workers Compensation Act 1987 for reasonable action taken in respect of performance appraisal, discipline and retrenchment; Held– expert opinion not provided in fair climate; opinion provided not sufficient to meet test of main contributing factor to the contracting or aggravation of a disease; award for the respondent.

Decision date: 7 February 2022| Member: John Isaksen

ACW v ACY & others [2022] NSWPIC 90

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: 28 February 2022 | Senior Member: Glenn Capel

Tosovic v Sigma Air Conditioning Pty Ltd [2022] NSWPIC 92

Design engineer injured while ice skating with children while on assignment for his employer in Vienna; ComCare v PVYW considered and applied; finding that the evidence established that the activity was induced or encouraged by employer; Held- award for the worker for total and partial incapacity during first and second entitlement periods and for permanent impairment compensation.

Decision date: 3 March 2022| Member: Paul Sweeney

Lelov v Blacktown City Council [2022] NSWPIC 93

Claim for weekly payments of compensation and medical expenses for psychological injury; whether worker sustained injury in the course of his employment; whether the worker sustained a disease injury pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987; reference to AV V AW; whether the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; reference to Hamad v Q Catering Ltd, Northern NSW Local Health Network v Heggie, and Irwin v Director General of School Education; whether the worker has had no current work capacity or a partial incapacity for work; Held– the worker’s employment was the main contributing factor to the aggravation of a psychological disease; the worker’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and the action that was taken was not reasonable; the worker has had no current work capacity as a result of the injury; award for weekly payments of compensation and medical expenses.

Decision date: 3 March 2022| Member: John Isaksen

De La Blanca v Kingsfeld Excavations Pty Ltd [2022] NSWPIC 94

Order sought by worker for the respondent to meet cost of L4/5 fusion; respondent admits injury but disputes surgery is reasonably necessary as a result of work injury; comparison of the opinions of four neurosurgeons; reference to Rose v Health Commission; Held– worker not able to establish that proposed surgery is reasonably necessary as a result of his injury.

Decision date: 4 March 2022| Member: John Isaksen

Hossain v 4 Eyes Pty Ltd t/as Beach Burrito Co [2022] NSWPIC 95

Claim for weekly compensation in respect of cervical and lumbar injury; failure of applicant to appear at teleconference; applicant departed country and solicitor unable to make contact; solicitor lacked instructions to enable him to participate in teleconference; Held- proceedings dismissed for want of due despatch.

Decision date: 4 March 2022| Member: Rachel Homan

Philpott v Australian Plays Transform [2022] NSWPIC 96

Challenge to work capacity assessment; applicant assessed as capable of doing suitable employment as a teacher for 26 hours per week; a University of Sydney report which demonstrated that approximately half a teacher's time is spent in preparation for face to face teaching was relied on to support a submission that the assessment of the applicant's earning capacity should be halved; Held- application dismissed; the Personal Injury Commission has no jurisdiction to alter mandated rates of pay; work capacity assessment confirmed.

Decision date: 4 March 2022| Member: John Wynyard

Workers Compensation President's Delegate Decisions

Broughton v MJB Engineering Services Pty Ltd [2022] NSWPIC 88

Work capacity dispute; whether the applicant was able to work in “suitable employment”; section 32A of the Workers Compensation Act 1987; Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR; Paric v John Holland Constructions Pty Ltd [1985] HCA applied; Held– applicant has no current work capacity; award for the applicant for weekly payments of compensation.

Decision date: 22 February 2022 | President’s Delegate: Kathryn Camp

Riley v BCS Infrastructure Support Pty Limited [2022] NSWPIC 89

Work capacity dispute; whether the applicant is able to work in “suitable employment”; whether the role of electrical product assembly is suitable employment; section 32A of the Workers Compensation Act 1987; Held– applicant is able to work in suitable employment; work capacity decision upheld; applicant’s claim for compensation declined.

Decision date: 28 February 2022 | President’s Delegate: Kathryn Camp

Workers Compensation Medical Appeal Panel Decisions

Amery v Calvary Community Care [2022] NSWPICMP 34

Psychological injury; application to rely on a statement about history provided to Medical Assessor; Lukacevic v Coates Hire Operations Pty Limited; assessment in Psychiatric Impairment Rating Scale categories; Ferguson v State of New South Wales, Parker v Select Civil Pty Limited discussed; deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held- Medical Assessment Certificate confirmed.

Decision date: 3 March 2022| Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/psychiatric

Ingram v State of New South Wales (NSW Police Force) [2022] NSWPICMP 35

Appeal by worker with psychological injury in respect of each of the Psychiatric Impairment Rating Scale categories; Medical Assessor assigned a class equal to or greater than the worker’s qualified psychiatrist in all but one category and assessed a greater whole person impairment; worker’s submissions merely sought a review of the class assigned in each category; Sydney Trains v Batshon considered and applied; failure to prove demonstrable error or incorrect criteria; Held- Medical Assessment Certificate confirmed.

Decision date: 4 March 2022| Panel Members: Member Paul Sweeney, Dr Paul Sweeney and Dr Douglas Andrews | Body system: Psychological/psychiatric

Baumgartner v State of New South Wales (NSW Police Force) [2022] NSWPICMP 36

Appellant challenged the Medical Assessor’s (MA) assessment in respect of the social and recreational activities; fresh evidence accepted; change in appellant’s circumstances shortly after assessment; however, that evidence did not alter the MA’s assessment because of other activities carried out by the appellant; Held- Medical Assessment Certificate confirmed.

Decision date: 4 March 2022| Panel Members: Member Carolyn Rimmer, Dr David Crocker and Drew Dixon| Body system: Psychological/psychiatric

The Westhaven Association v Heycox [2022] NSWPICMP 37

Worker injured her lumbar spine; Medical Assessor assessed 25% whole person impairment of the lumbar spine and applied a one tenth deduction for prior injury and pre-existing condition; whether a one tenth deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was manifestly too low given the evidence in the matter; Held- by the Panel that a deduction of one tenth was open to the Approved Medical Specialist on the evidence; Medical Assessment Certificate confirmed.

Decision date: 8 March 2022| Panel Members: Member Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon | Body system: Lumbar spine and Scarring

TAFE NSW v Patricia Pires [2022] NSWPICMP 38

Claim in respect of primary psychological injury caused by work events in the period 1 September 2016 and 28 September 2017; Held- Medical Assessor (MA) acted beyond the scope of his powers in that he did not limit his assessment of impairment to work events between 1 September 2016 and 28 September 2017; further error in the Medical Assessment Certificate (MAC) as the MA failed to consider whether Ms Pires had sustained a pre-existing psychiatric injury and if so, whether any impairment resulted from that pre-existing injury; further ground of appeal relating to assessment in the  Psychiatric Impairment Rating Scale categories of social and recreational activities and travel; worker re-examined and MAC revoked.

Decision date: 8 March 2022| Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier 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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