Legal Bulletin No. 54
This bulletin was issued on 1 April 2022
Issued 1 April 2022
Welcome to the fifty-fourth 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
INSURANCE – Liability insurance; motor vehicle; compulsory third party insurance; dispute as to percentage of impairment caused by motor vehicle accident given pre-existing condition; finding by medical assessor that surgery was not necessitated by accident; insured’s application for review of medical assessor’s decision by President of Personal Injury Commission dismissed; judicial review of medical assessor’s decision and dismissal of review application; finding that assessor failed to respond to substantial and clearly articulated argument, provide lawful reasons, and evaluate evidence as required; quashing of medical assessor’s decision and President’s delegate’s dismissal of review application; remittal to Personal Injury Commission for medical assessment by different assessor.
Decision date: 25 March 2022| Before: Brereton JA
WORKERS COMPENSATION – weight of the evidence; evidence of clinical notes; Mason v Demasi considered and applied.
Decision date: 16 March 2022 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Late claim; section 7.33 of the Motor Accident Injuries Act 2017; whether claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment; Walker v Howard; Karambelas v Zanic; Lee v Allianz Australia Insurance Limited applied; claimant did not know, and was not advised about the need to refer the claim for assessment; claimant relied on his lawyers; Held- the claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment.
Decision date: 18 March 2022| Member: Brett Williams
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act); high impact motor accident; claimant sustained a soft tissue injury to the cervical spine, a fracture of the left L4 transverse process in the lumbosacral spine, a fractured right scaphoid, a fractured right ankle involving the lateral malleolus and right 3rd through to 11th rib fractures; claimant aged 65 years at the time of the motor accident and was in part-time employment; ongoing symptoms in the region of the cervical spine, lumbosacral spine, right scaphoid and right ankle; whole person impairment agreed at 15% in respect of physical injuries; Reece v Reece and RACQ Insurance Limited v Motor Accidents Authority of NSW(No 2) considered and applied; Held- the proposed settlement of $273,000 is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities, the impairments and the losses sustained by the claimant, and taking into account the proposed reductions or deductions in the proposed settlement; the proposed settlement is approved under section 6.23(2)(b) of the MAI Act.
Decision date: 21 March2022| Member: Anthony Scarcella
Claim referred to the Commission for assessment five months late; whether the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment late; whether leave should be granted to refer the claim for assessment; section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); Walker v Howard; Karambelas v Zanic (No 2); Russo v Aiello; Hunter v Roberts; Smith v Grant; Lee v Allianz Australia Insurance Limited applied; Held- claimant relied on his lawyer; delay in large part occasioned by outstanding minor injury dispute and advice provided by lawyer; no claim for damages can be made if only injuries are minor injuries; section 4.4 of the MAI Act; claimant had provided a full and satisfactory explanation for the delay; leave granted for claim to be referred for assessment.
Decision date: 22 March 2022| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Claim for apportionment of lump sum death benefit and orders with respect to payment; adult children of deceased worker elected not to claim a portion of the lump sum; identification of other dependants; application for orders for payment of interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); when was the claim duly made; delays in making the claim due to difficulties identifying the correct employer; allegation of fraud in concealing the employer’s identity; request in the alternative for orders pursuant to section 235B of the 1998 Act; Held- the respondent was the sole dependant of the deceased worker; orders for payment of the lump sum pursuant to sections 29(1A) and 85A(1) of the Workers Compensation Act 1987; interest to be paid from date Application lodged until initial teleconference at 2% above the Reserve Bank of Australia cash rate; no order made pursuant to section 235B of the 1998 Act.
Decision date: 17 March 2022| Member: Rachel Homan
Psychological injury claim for permanent impairment compensation and medical expenses; whether applicant suffered psychological injury in course of employment, and if so, whether it was caused by the respondent’s reasonable actions with respect to discipline, promotion and/ or performance appraisal; Held- the applicant suffered a work-related psychological injury which was caused by a multitude of work-related factors; the conduct relied on by the respondent was not the main contributing factor to the applicant’s injury; matter remitted to President for referral to a Medical Assessor to determine the applicant’s permanent impairment; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.
Decision date: 17 March 2022| Member: Cameron Burge
Permanent impairment claim for hernia injury, consequential left ankle condition and disputed consequential lumbar spine condition; the latter condition said to have resulted from abnormal ambulation arising from the hernia injury and left groin pain, as well as the left ankle; consideration of medical records; consideration of Moon v Conmah P/L and Kooragang common sense causation; Held- lumbar spine condition was consequential to the hernia injury; matter referred to Medical Assessor for assessment.
Decision date: 18 March 2022| Member: Michael Wright
Claim for gratuitous domestic assistance; services being rendered in India; applicant sought that services be compensated at an hourly rate provided by the NSW Australian Bureau of Statistics (ABS) for Average Weekly Earnings (AWE) in New South Wales (NSW); the requirement is that the provider of gratuitous domestic assistance be paid a proper and reasonable amount for the services provided; a proper and reasonable amount for services provided in India cannot be determined by reference to AWE in NSW; Held- that a proper and reasonable amount in the circumstances of this case was determined by reference to the AWE in India; award for the applicant.
Decision date: 18 March 2022| Member: Jane Peacock
Claim for permanent impairment for psychological injury; whether the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; reference to Ponnan v George Weston Foods Ltd and ISS Property Services Pty Ltd v Milovanovic; whether the claim for permanent impairment can be determined without the need for assessment by a Medical Assessor (MA); reference to Etherton v ISS Property Services Pty Ltd; Held– the worker’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; not appropriate for the claim for permanent impairment to be determined by the Commission; referral for assessment of permanent impairment to MA.
Decision date: 21 March 2022| Member: John Isaksen
The applicant claims permanent impairment compensation resulting from injury sustained to his left upper extremity, right upper extremity, cervical spine and scarring in the course of his employment with the respondent; the respondent disputes the applicant’s alleged injury to the cervical spine and the level of impairment the applicant sustained resulting from injury sustained in the course of his employment with the respondent; Held– the applicant sustained injury to his cervical spine in the course of his employment with the respondent; the applicant’s claim for permanent impairment resulting from injury sustained to his left upper extremity, right upper extremity, cervical spine and scarring in the course of his employment with the respondent is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 22 March 2022| Member: Jacqueline Snell
Claim for weekly benefits for impairment said to arise from accepted in jury in February 2005 and from condition to cervical spine allegedly consequent upon it; liability declined on basis there was no consequential condition and applicant’s incapacity from 2011 was not caused by the accepted injury; Held- the applicant has not demonstrated a causal link between the 2005 injury and any cervical spine condition; the applicant returned to work on normal duties for a significant period after the injury at issue, and suffered a number of intervening injuries to his lumbar spine; the applicant has not demonstrated on a common sense basis that his claimed incapacity was caused by the accepted injury; award for the respondent.
Decision date: 22 March 2022| Member: Cameron Burge
The applicant claims the cost of surgical treatment for alleged injury sustained to her left shoulder in the course of her employment with the respondent; the respondent disputed the alleged injury to the applicant’s left shoulder in the course of her employment with the respondent and the respondent disputed the surgical treatment was reasonably necessary treatment for injury; Held– the applicant sustained injury to her left shoulder in the course of her employment with the respondent and her employment with the respondent is a substantial contributing factor to injury; the applicant requires medical and related treatment as a consequence of the injury, and the proposed surgical treatment is reasonably necessary treatment for the injury.
Decision date: 22 March 2022| Member: Jacqueline Snell
Claim for section 60 of the Workers Compensation Act 1987 (1987 Act) expenses; accepted injury to lower limbs arising out of or in the course of the workers employment; whether proposed “right transtibial osseointegration surgery with bone graft to tibia and targeted muscle reinnervation of tibial, saphenous and deep perineal nerves with reanastamosis” is reasonably necessary; worker with multiple medical conditions and limited life expectancy; in wheelchair; no dispute that the proposed treatment is the worker’s only prospect of walking again; no alternative treatment proposed; agreement to seek non-binding opinion of Medical Assessor; determination “on the papers”; applicant’s request for leave to make supplementary written submissions concerning Commission’s jurisdiction and interaction of the 1987 Act with Commonwealth age and disability discrimination legislation refused; Bartolo v Western Sydney Area Health Service and Diab v NRMA considered; Held- proposed treatment is not reasonably necessary; award for the respondent.
Decision date: 22 March 2022| Member: Jill Toohey
Claim for lump sum compensation following knife attack on the applicant at a park where he had been employed for over 30 years; whether applicant’s injury arose out of or in the course of his employment; whether applicant satisfied his onus of proof; whether respondent evidence rebutted the prima facie case presented by the applicant; whether the applicant can rely on section 14 of the Workers Compensation Act 1987 (1987 Act); whether psychiatric injury had been established; Held- although a prima facie case was established, the respondent met its evidentiary burden of proof to rebut the applicant’s prima facie case; Nguyen v Cosmopolitan Homes and Lewis v Doyle considered and applied; analysis of totality of the evidence demonstrated that the applicant was subject of a targeted attacked which involved a knife thrust to the heart (which did not penetrate the chest wall) and stab wounds over the shoulder one of which required surgery; injury did not arise out of or in the course of employment; Nunan v Cockatoo Docks & Engineering Co Ltd considered and applied; section 14 of the 1987 Act accordingly not applicable; Rhodes v Premier Motor Services Pty Ltd and Scharrer v The Redrock Co Pty Ltd considered and applied; applicant’s injury accordingly fell outside the terms of section 14(2) of the 1987 Act; finding that the injury caused serious impairment disablement but award for the respondent.
Decision date: 22 March 2022| Member: John Wynyard
The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 resulting from alleged injury to right upper extremity, left upper extremity, upper digestive system and scarring in the course of employment with the respondent, the applicant’s claim is declined with the respondent disputing; (a) the applicant sustained consequential injury to his left upper extremity as alleged, and (b) the level of impairment suffered by the applicant resulting from injury sustained in the course of employment with the respondent; Held– the applicant sustained consequential injury to his left upper extremity as a result of the injury he sustained to his right upper extremity in the course of his employment with the respondent; the applicant’s claim for permanent impairment compensation resulting from injury he sustained to his right upper extremity, left upper extremity, upper digestive system and scarring in the course of his employment with the respondent is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 23 March 2022| Member: Jacqueline Snell
Psychological injury as a result of bullying and harassment; claim for weekly payments and medical expenses; whether events from mid-2017 to late 2020 caused or contributed to psychological injury; finding that to the extent that they contributed they were not the main contributing factor; whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline; finding that injury wholly or predominantly caused by action with respect to discipline; manner in which action taken was not reasonable; respondent failed to discharge onus; whether the worker had incapacity as a result; Held- worker entitled to weekly payments; general order for section 60 of the Workers Compensation Act 1987 medical expenses.
Decision date: 23 March 2022| Member: Jill Toohey
Applicant’s application for reconsideration (RA) of Medical Assessor (MA) assessment finding of no complex regional pain syndrome (CRPS) injury for purpose of setting aside of certificate of determination (COD) and referral back to MA for reconsideration under section 329 (1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); discussion interaction of section 329 and section 322A and section 327 of the 1998 Act; discussion about Chapter 17 of Guidelines for the Evaluation of Permanent Impairment requiring that a CRPS assessment be undertaken in accordance with that Chapter; Held- RA to set aside COD declined and application to refer matter back to MA for reconsideration under section 329 of the 1998 Act refused.
Decision date: 23 March 2022| Member: Michael Perry
Claim for 21% whole permanent impairment by applicant for hernia injuries; applicant successfully sued treating surgeon in Supreme Court; whether Commission had jurisdiction to entertain all or part of the claim; Held- section 151Z(1)(c) of the Workers Compensation Act 1987 applied to prevent the claim for orchidectomy and scarring from being assessed; remaining claim regarding the original injury for right inguinal hernia was assessed at 9% and did not reach the threshold; award respondent.
Decision date: 23 March 2022| Member: John Wynyard
Motor Accidents Medical Review Panel Decisions
The claimant was involved in a motor accident on 22 January 2017 when he sustained soft tissue injuries to the cervical and lumbar spines; the claimant also had pre-existing bilateral shoulder problems for work injuries; the claimant alleged the motor accident aggravated the bilateral shoulder condition; Held- The claimant was examined by both Medical Assessors (MA) who found nil impairment under the Motor Accident Permanent Impairment Guidelines; that assessment was consistent with the fact that the nature of a soft tissue injury may and can resolve over time; finding made that the bilateral shoulder condition was not aggravated by the motor accident based on the absence of contemporaneous complaint to doctors and in the claim form, the absence of complaint that the shoulders was injured to various qualified doctors and the history provided to the MA; the nature of the motor accident was not consistent with a shoulder injury; QBE Insurance (Australia) Ltd v Shah applied; no need to assess the shoulders as they were injured in the motor accident; Jarvis v Allianz Australia Insurance Ltd applied.
Decision date: 11 March 2022| Panel Members: Principal Member John Harris, Dr Rhys Gray and Dr Shane Moloney | Injury module: Cervical and lumbar spines
Medical review; causation; pre-accident medical condition and treatment; radiological examinations by comparison before and after accident in near proximity to accident; complaint of exacerbation of cervical spine injury; post-accident surgery recommended for C6/7 fusion and discectomy; claimant not initially challenged about inconsistent answers by Medical Assessor; Panel review questioning of claimant but no medical re-examination; consideration of clauses 1.8 and 1.9 of Motor Accident Medical Assessment Guidelines (the Guidelines) and section 5D of the Civil Liability Act; the Panel was satisfied that there was a temporary aggravation of the claimant’s cervical spine symptoms but that the accident did not cause or contribute to a worsening of the impairment; the definition of causation in the Guidelines requires two arms of the definition to be satisfied and the Panel was not satisfied that this was the case; Held- Panel satisfied that no permanent cervical injury was caused by the accident.
Decision date: 22 March 2022| Panel Members: Member Alexander Bolton, Dr Drew Dixon and Dr Rhys Gray | Injury module: Cervical spine
This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for Persistent Depressive Disorder was satisfied; the Panel did not consider that Ms Vuong suffered from post-traumatic stress disorder (PTSD) at any time because there was no threat of serious injury or death in the motor accident which was an element for diagnosing PTSD under DSM-5; the Panel applied the principles in Lynch v AAI Ltd noting the insurer implicitly accepted that a minor injury could occur at any time; findings made that 8 sessions of psychological treatment were reasonable and necessary and would improve the recovery of the claimant; discussion of reasonable and necessary; principles in Diab v NRMA Ltd referred to; discussion of test for treatment arising from the motor accident only required a material contribution; AAI Ltd v Phillips applied; Held- findings made that the claimant suffered from Persistent Depressive Disorder which was a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 Act.
Decision date: 22 March 2022| Panel Members: Principal Member John Harris, Dr Tom Newlyn and Dr Michael Hong | Injury module: Psychiatric/psychological
Workers Compensation Medical Appeal Panel Decisions
Worker appeals on multiple grounds including failure to assess his right wrist and the deduction of 50% pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of a pre-existing osteoarthritic condition of the right thumb; Held- that failure to examine or record the examination of the wrist demonstrable error; no error in the deduction of 50% in respect of right thumb; on re-examination findings of the Medical Assessor (MA) confirmed-no impairment of the right wrist; typographical or calculation error in Medical Assessment Certificate (MAC); MA’s assessment of whole person impairment confirmed but MAC revoked and new MAC issued to correct the typographical error.
Decision date: 17 March 2022| Panel Members: Member Paul Sweeney and Dr Roger Pillemer and Dr Gregory McGroder | Body system: Right upper limb shoulder, thumb and scarring
Appeal from assessment of 15% whole person impairment (psychological); whether assessor erred in assessing impairment in respect of Travel; whether assessor erred in assessing impairment in respect of Employability; Held- Medical Assessment Certificate confirmed.
Decision date: 22 March 2022| Panel Members: Member R J Perrignon, Dr Michael Hong and Dr Julian Parmegiani| Body system: Psychiatric/psychological
Employer appeals from deduction of 1/10th from whole person impairment (WPI) pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of symptomatic pre-existing psychological condition; it submitted that the Medical Assessor (MA) erred in failing to consider and apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Chapter 11.10; alternatively, MA erred in failing to give reasons for application of section 323(2) of the 1998 Act; Marks v Department of Communities considered; Held- that the evidence before the MA did not permit an assessment of pre-existing WPI in accordance with the Psychiatric Impairment Rating Scale; the MA was correct to find it was” difficult” to so and apply a 1/10th deduction; Medical Assessment Certificate confirmed.
Decision date: 22 March 2022| Panel Members: Member Paul Sweeney, Dr Nicholas Glozier and Dr Patrick Morris | Body system: Psychiatric/psychological
Appeal asserting availability of additional relevant information, incorrect criteria and demonstrable error; Medical Assessor assessed injury to the left shoulder and consequential condition in the right shoulder, deducting 2/10 left shoulder and 3/10 right shoulder impairment as due to a pre-existing condition; statement of the appellant worker asserting failure to assess in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment said to constitute additional relevant information; Held- statement rejected – application of Petrovic v B C Serv No 14 and Others and Lukacevic v Coates Hire Operations; the reasons for the respective deductions were unclear from the Medical Assessment Certificate; error established in this regard; upon reassessment a deduction of 1/10 was found not to be at odds with the evidence.
Decision date: 22 March 2022| Panel Members: Member William Dalley, Dr Drew Dixon and Dr Gregory McGroder | Body system: Left upper limb (shoulder) and right upper limb (shoulder)
Motor Accidents Merit Review Decisions
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings; clause 4(1) of schedule 1 of theMAI Act; self-employed earner; sole trader; business expenses; depreciation expenses; payments to family members for income splitting and tax planning purposes; Held – the reviewable decision is affirmed.
Decision date: 21 March 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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