Legal Bulletin No. 55
This bulletin was issued on 8 April 2022
Issued 8 April 2022
Welcome to the fifty-fifth 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
ADMINISTRATIVE LAW — Judicial review; Workers Compensation; where parties agreed to terms of referral to Approved Medical Specialist (AMS); where Appeal Panel found AMS erred by going beyond terms of referral; whether referral entitled AMS to assess degree of permanent impairment arising from body parts not specifically referred; judicial review dismissed.
Decision date: 5 April 2022| Before: Harrison AsJ
WORKERS COMPENSATION – Sections 15 and 16 of the Workers Compensation Act 1987; deemed date of injury; Alto Ford Pty Ltd v Antaw, Stone v Stannard Bros Launch Services Pty Ltd discussed.
Decision date: 25 March 2022 | Before: Deputy President Elizabeth Wood
WORKERS COMPENSATION – Sections 59 and 60 of the Workers Compensation Act 1987; ‘reasonably necessary’; ‘curative apparatus’; Diab v NRMA Ltd; Thomas v Ferguson Transformers Pty Ltd; evidence in the Commission; Onesteel Reinforcing Pty Ltd v Sutton; weight of evidence; Shellharbour City Council v Rigby; factual error.
Decision date: 31 March 2022 | Before: Deputy President Michael Snell
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; Lee v Allianz Australia Insurance Limited & Toone v AAI Limited t/as GIO applied; claimant’s solicitor working in Covid lockdown without administrative support; claimant relied on her lawyers; Held- the claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment.
Decision date: 3 February 2022| Member: Terence O'Riain
Claims assessment application; whether claimant had used “best endeavours’ to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017 (MAI Act); meaning of “best endeavours”; Held- in the context of the MAI Act and section 7.32(3), the obligation of using“best endeavours” is satisfied if the claimant has taken reasonable steps to make, prepare and advance his claim towards a resolution; no practical utility in pursuing settlement where degree of permanent impairment remains in dispute; the obligation does not require the claimant to capitulate and compromise his claim for the sake of achieving a settlement before referring it for assessment by the third anniversary of the motor accident.
Decision date: 25 February 2022| Member: Maurice Castagnet
Claims assessment; application to compensate relatives; whether the proceedings involve federal jurisdiction; whether the Personal Injury Commission (the Commission) has jurisdiction to determine the proceedings where the claimant is a resident of the Australian Capital Territory and the insurer is an interstate statutory insurer (Victoria); whether the Commission has power to dismiss the proceedings if a party has not used their “best endeavours” to settle a claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017 considered; Held – the matter has jurisdiction to determine the proceedings.
Decision date: 22 March 2022| Member: Maurice Castagnet
Claim referred to the Commission for assessment four months late; section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); whether claimant has provided a full and satisfactory explanation for the delay; meaning of ‘full and satisfactory’ explanation where not defined in the MAI Act for the purposes of section 7.33; claimant relied on lawyers; not advised about time limits to refer the claim for assessment; whether an exceptional costs order under section 8.10(4) of the MAI Act should be made; Held- a full and satisfactory explanation for the delay had been provided; it was reasonable for the claimant to rely on his lawyers; leave granted to refer the claim for assessment; section 8.10 of the MAI Act only applies to claims for statutory benefits and not damages; no power to make costs order sought.
Decision date: 25 March 2022| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Psychological injury; perception of real events; Ag v K and Sta v Chemler considered; failure to comply with section 254 of the Workplace Injury Management and Workers Compensation Act 1998 notification of injury within 6 months (excused due to ignorance); egg shell skull psyche-relevance of prior psychological and physical ailments on the facts; Held- applicant’s independent medical examiner (IME) preferred on issue of injury within section 4 (b) (ii) of the Workers Compensation Act 1987 (1987 Act); wrong test applied by respondent’s IME; injury occurred 23 January 2018 but no incapacity resulting from injury until 29 January 2020 in absence of medical evidence; award in favour of applicant for weekly payments from 29 January 2020 medical expenses from 6 March 2020; referral to President for medical assessor section 66 of the 1987 Act.
Decision date: 25 March 2022| Member: Philip Young
Worker; deemed worker; agreement for the installation of respondent’s product by unlicensed installer; under the trade licence of another party; CFMMEU v Personnel Contracting Pty Ltd, ZG Operations Australia Pty Ltd v Jamsek; in the absence of a written contract; consideration of the indicia of employment remains relevant; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation; Held– applicant was neither a worker nor a deemed worker; award for the respondent.
Decision date: 25 March 2022| Member: Catherine McDonald
Claim for weekly compensation at a higher rate than currently being paid; accepted lumbar injury in 2018; whether acute flare in symptoms at work in 2021 constituted a new injury or recurrence of 2018 injury; where increase or intensification in symptoms attributed by all doctors to repetitive lifting of cartons of soft drink; applicant had returned to pre-injury duties following 2018 injury; although there were some residual symptoms, they were “manageable”; whether no current work capacity; after changing nominated treating doctor applicant’s capacity downgraded; Held- the applicant sustained a new injury pursuant to section 4(b)(ii) of the of the Workers Compensation Act 1987; weight of evidence favoured a finding of no current work capacity in the period of weekly compensation claimed; award in favour of the applicant for weekly compensation.
Decision date: 25 March 2022| Member: Rachel Homan
Claim for cost of left side diagnostic medical branch block and radiofrequency ablation; accepted injury to lumbar spine; whether proposed treatment reasonably necessary; Rose v Health Commission and Diab v NRMA Pty Ltd considered; Held- finding that proposed treatment reasonably necessary as a result of the worker’s injury.
Decision date: 28 March 2022| Member: Jill Toohey
Lumbar spine injury; disputed that the surgery sought in the form of decompression and fusion was reasonably necessary as a result of the injury; the respondent conceded that a decompression was reasonably necessary; Diab v NRMA referred to; evidence weighed in the balance; Held- satisfied, on the balance of probabilities, that the surgery sought in the form of a decompression and fusion was reasonably necessary as a result of the injury; award for the applicant.
Decision date: 29 March 2022| Member: Jane Peacock
The applicant claims the cost of recommended surgical treatment for injury to sustained to his low back in 2000 in the course of his employment with the respondent; the respondent disputes the recommended surgical treatment is reasonably necessary treatment for the injury the applicant sustained to his low back in 2000; Held– the recommended surgical treatment is not reasonably necessary medical treatment for the injury the applicant sustained to his low back in 2000.
Decision date: 30 March 2022| Member: Jacqueline Snell
Workers Compensation President’s Delegate Decision
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; whether applicant could work as a school crossing supervisor; requirement for potential employees to pass a working with children and police check; no evidence provided that the applicant would not pass those checks; insufficient medical evidence to support allegations of lethargy and lack of concentration; Held- award for the respondent.
Decision date: 28 March 2022| Member: Parnel McAdam
Motor Accidents Medical Review Panel Decisions
This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant was thrown off a motor bike and sustained injury to the neck; subsequent scan evidence showed annular tears at two levels of the cervical spine; Held- the Panel were not satisfied that the claimant suffered an annular tear in the motor accident; reference made to articles provided to the parties which suggested that annular tears are common in the population and generally asymptomatic and not necessarily associated with neck pain; other musculoskeletal structures are capable of causing pain and there was no diagnostic test that the annular tears were the cause of the neck pain; the Panel were not satisfied that the claimant suffered annular tears in the motor accident; Panel determined that it was unnecessary to determine whether an annular tear was a non-minor injury within the meaning of the Motor Accidents Injuries Act 2017 and the Motor Accident Injuries Regulation 2017; finding made that the claimant suffered a minor injury; original assessment confirmed.
Decision date: 24 March 2022| Panel Members: Principal Member John Harris, Dr Ian Cameron and Dr Trudy Rebbeck| Injury module: Cervical spine
The claimant was involved in a motor accident on 8 July 2016 when he sustained soft tissue injuries to the cervical and lumbar spines; claimant subsequently underwent discectomy at L4/5 held to be causally related to the accident; reference made to contemporaneous notes which referred to radiating right leg pain; Held- the claimant was examined by Medical Assessor Chan; claimant had no cervical spine symptoms and was assessed at DRE Category I; claimant had no signs of radiculopathy within the meaning of clause 1.138 of the Motor Accident Permanent Impairment Guidelines (the Guidelines); Assessment of DRE Category II made for the lumbar spine; surgical scar assessed at 0% in accordance with Table 18 of the Guidelines and principle of best fit; finding made that claimant did not injure his right leg; references in notes to symptoms in right leg were radicular features form the low back and not a discrete injury; claimant assessed at 5% whole person impairment; original assessment confirmed.
Decision date: 29 March 2022| Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Wing Chan| Injury module: Cervical, lumbar spine and scarring
Workers Compensation Medical Appeal Panel Decisions
Chronic regional pain syndrome; inconsistency observed on examination; Medical Assessor had taken inconsistency in range of movement in some joints into account because he did not include those joints in his assessment; Bojko v ICM Property Service Pty Ltd; Held- Medical Assessment Certificate confirmed.
Decision date: 24 March 2022| Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Drew Dixon| Body system: Right upper extremity (wrist, nervous system/CRPS referable to right upper extremity)
Appeal from assessment of 0% whole person impairment (cervical spine); whether assessor applied incorrect criteria by failing to give reasons for assessing a DRE Category I impairment; whether he formed a view inconsistent with the finding of injury; whether he in fact assessed a DRE Category II impairment; whether the symptoms were inconsistent with a DRE Category I impairment; whether he erred by failing to make allowance for ADL’s; whether he denied the worker procedural fairness; Held- appeal from assessment of cervical spine and right upper extremity; whether assessor erred in failing to assess the left upper extremity (not referred for assessment) after taking a history of symptoms in that body part; whether an appeal lies on the basis that the condition of the worker’s left upper extremity has deteriorated.
Decision date: 25 March 2022| Panel Members: Member R J Perrignon, Dr Margaret Gibson and Dr Gregory McGroder | Body system: Cervical spine and right upper extremity (right shoulder, right elbow, right wrist)
Appeal by worker against 19% whole person impairment assessment for psychological injury: whether additional information should be admitted, whether Medical Assessor (MA) erred in his assessment regarding categories in the Psychiatric Impairment Rating Scale, whether MA erred in assigning the same factual conduct to 2 separate categories; Held- additional evidence inadmissible; Lukacevic applied; no error established as to the assessment value ascribed to each category; Ferguson, Jenkins, Parker applied; factual conduct assigned to categories of self-care and personal hygiene, and social functioning relevant to each; Ballas considered; Medical Assessment Certificate confirmed.
Decision date: 30 March 2022| Panel Members: Member John Wynyard, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/psychological
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); meaning of pre-accident weekly earnings; pre-accident weekly earnings; schedule 1, clause 4 of the MAI Act; self-employment; partnership; operating expenses; whether earnings as an earner are the gross profit or net income of the business; Held- the reviewable decision is affirmed.
Decision date: 25 March 2022| Merit Reviewer: Katherine Ruschen
Merit review; pre accident weekly earnings (PAWE); claimant operated business as a sole trader; how is PAWE calculated; gross income or net income after deduction of business expenses; clause 4 of Schedule 1 of the Motor Accidents Injuries Act 2017 (MAI Act); interpretation of phrase “gross earnings received by the earner”; Held- Claimant’s PAWE should be calculated on the basis of the net profit of his business, after deducting business expenses but before tax; insurer erred in its calculation of the Claimant’s weekly payments under subsection 3.6 (2) of the MAI Act; remitted to the Insurer for reconsiderationand recalculation of the Claimant’sentitlement to weekly payments of statutory benefits; for consistency and equity the Insurer should use the same net per hour figure excluding the Claimant’s business expenses for all weekly benefits calculations; legal costs $NIL; merit review in ABQ v NRMA Insurance followed; decision in Allianz Australia Insurance Ltd v Jenkins noted.
Decision date: 26 March 2022| Merit Reviewer: Ray Plibersek
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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