Legal Bulletin No. 57
This bulletin was issued on 22 April 2022
Issued 22 April 2022
Welcome to the fifty-seventh 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; Motor Accident Injuries Act 2017; statutory construction; calculation of pre-accident weekly earnings; meaning of gross earnings received by the earner as an earner; whether earner as an earner define the period by which earnings are to be averaged or limit the earnings to be taken into account; decision of Merit Review Panel set aside.
Decision date: 22 April 2022 | Before: Harrison AsJ
WORKERS COMPENSATION – Injury in the course of or arising out of employment; failure to respond to a substantial, clearly articulated argument relying upon established facts; application of Dranichnikov v Minister for Immigration and Multicultural Affairs.
Decision date: 7 April 2022 | Before: Deputy President Michael Snell
WORKERS COMPENSATION – Calculation of the respondent’s pre-injury average weekly earnings as defined by clause 2 of Schedule 3 to the Workers Compensation Act 1987; factual findings; Najdovski v Crnojlovic; Whiteley Muir & Zwanenberg Ltd v Kerr; Raulston v Toll Pty Ltd applied.
Decision date: 11 April 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Claims assessment; approval of proposed settlement under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; non-minor injuries; claim for damages for non-economic loss; whole person impairment of 14%; claimant aged 64 years; L3 vertebral body fracture; bilateral sacral fractures; bilateral rib fractures; traumatic bowel injury; recurring bowel obstructions; Held- proposed settlement of $280,000 approved.
Decision date: 21 March 2022 | Member: Maurice Castagnet
Miscellaneous claims assessment matter; whether the insurer is entitled to reduce payments of weekly statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017; insured driver reversing from a driveway on King Georges Road, Hurstville NSW; driveway situated after a crest in the roadway; claimant was driver of a vehicle travelling over the crest causing a collision with the insured vehicle; claimant lost control of his vehicle and collided with the rear of a stationary truck; question as to whether the claimant was speeding; whether the claimant acted as a reasonable person ought to have in his situation, pursuant to section 5R of the Civil Liability Act 2002; found that the insurer had not discharged its onus to establish contributory negligence; Held- the insurer is not entitled to reduce payments of weekly statutory benefits; no finding of contributory negligence made.
Decision date: 5 April 2022| Member: Elizabeth Medland
Miscellaneous claims assessment; claimant fell at shopping centre; claimed that he was struck by a motor scooter in a shopping centre and suffered injury; whether, for the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (MAI Act), the claimant suffered injury as a result of a motor accident; Held- claimant carries the onus of establishing, on the balance of probabilities, facts said to demonstrate that he satisfies section 3.1 of the MAI Act and that he suffered injury that resulted from a motor accident; the claimant was struck twice by the scooter, once from behind and again after he had fallen; the claimant has suffered injury as a result of a motor accident.
Decision date: 8 April 2022| Member: Brett Williams
Whether for the purposes of sections 3.11 and 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); the insurer is entitled to cease statutory benefits payable in respect of the motor vehicle accident, the claimant was driving his motor vehicle along Fifteen Avenue West Hoxton Park, there was heavy traffic at the time and the vehicles immediately in front of the claimant had come to a halt; it then transpired the claimant was unable to bring his own vehicle to a halt and collided with the rear of the insured’s motor vehicle; Held- for the purposes of sections 3.11 and 3.28 of the MAI Act the motor accident was caused wholly by the fault of the injured person.
Decision date: 11 April 2022| Member: David Ford
Workers Compensation non-Presidential Member Decisions
Claim for total right knee replacement surgery; applicant pleads specific date of injury and respondent relies on prior incidents of right knee injury. application by applicant to amend to include section 4 (b) of the Workers Compensation Act 1987 (1987 Act) allegation after respondent’s submissions; application to amend refused due to injustice; applicant on the evidence establishes frank injury pursuant to section 4 (a) of the 1987 Act occurring on 15 October 2020 and that work a substantial contributing factor per section 9a of the 1987 Act; Aon Risk Services, Smith v Cropper, Mecha Engineering, Hussey, Hankinson, Hockey, Rootsey considered; Held- surgery proposed is reasonably necessary medical treatment which results from frank injury on 15 October 2020.
Decision date: 7 April 2022| Member: Philip Young
Claim for costs payable under section 60 of the Workers Compensation Act 1987 for proposed surgery in the nature left shoulder arthroscopy, biceps tenodesis and resuturing of rotator cuff and decompression; Held– the applicant requires medical and related treatment resulting from injury sustained on 23 April 2020 in the course of her employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting from that injury.
Decision date: 8 April 2022| Member: Jacqueline Snell
Section 60(5) of the Workers Compensation Act 1987 application for declaration that the supply of medicinal cannabis reasonably necessary; whether evidence of drug use and abuse five years ago relevant; whether inconsistent answers in cross examination relevant; whether alternative treatment appropriate; whether cost reasonable; Held- applying Honavar; presumption that treatment reasonably necessary not rebutted by credit issues; applicant now working and at university, conduct of 5 years ago does not displace presumption, answers in cross examination cavalier and careless but evidence established that treatment effective not displaced; applicant treated by injection, opioid medication, psychological counselling but not effective; costs of treatment open ended and uncertain: award respondent.
Decision date: 11 April 2022| Member: John Wynyard
Aggregation of impairment arising from separate events; Ozcan v Macarthur Disability Services Ltd, Secretary, New South Wales Department of Education v Johnson; whether the worker suffered a consequential condition as a result of the first injury; Kumar v Royal Comfort Bedding Pty Ltd; Held– the worker suffered two injuries, aggregation not possible; liberty to apply with respect to referral to Medical Assessor.
Decision date: 12 April 2022| Member: Catherine McDonald
Psychological injury; claim for compensation for ongoing weekly benefits and medical expenses; liability for injury disputed; respondent did not press liability dispute and resolved sections 36 and 37 and section 60 aspect of the claim of the Workers Compensation Act 1987 (the 1987 Act); applicant pressed section 38 claim; no dispute on evidence that applicant had no current work capacity and that it was likely to continue indefinitely that she would have no current work capacity; respondent disputed that Commission could make an order under section 38(2) of the1987 Act in the applicant’s favour because she had not been assessed by the insurer as having no current work capacity which was likely to continue indefinitely; Sabanayagam v St George Bank Ltd, Oliver Roberts v University of Sydney, Dickson v Zurich Financial Services Australia Limited (Dickson), Chea v Woolworths Limited considered; Held- that the Commission had jurisdiction to make an order under section 38 of the 1987 Act in favour of the applicant. Award for the applicant.
Decision date: 12 April 2022| Member: Jane Peacock
Claim for proposed medical treatment; Held- that Ms Beeton suffers from a consequential condition in the left hip as a result of the injuries to the lumbar spine and right hip on 26 January 2015, and that the proposed left hip replacement surgery is reasonably necessary as the result of such injury on 26 January 2015.
Decision date: 12 April 2022| Member: Carolyn Rimmer
Claim made by the applicant for permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury to the cervical spine, right shoulder, left shoulder and nervous system sustained on 20 January 2020 in the course of employment with the respondent; alleged injury to the left shoulder and nervous system placed in issue; Held– The applicant sustained injury to his nervous system on 20 January 2020 in the course of his employment with the respondent with his employment being a substantial contributing factor to injury and award for the respondent relevant to the applicant’s allegation of injury to his left shoulder; the applicant’s claim for permanent impairment compensation resulting from injury to his cervical spine, right upper extremity and nervous system, with date of injury of 20 January 2020 is remitted to the President for referral to a Medical Assessor for purpose of assessment of whole person impairment.
Decision date: 12 April 2022| Member: Jacqueline Snell
Claim for further lump sum compensation as provided for by clause 11 of Schedule 8 of the Workers Compensation Regulation 2016; whether it is necessary to establish deterioration of a condition before referral for assessment is made; reference to Abou-Haidar v Consolidated Wire P/L; the extent to which an estoppel can be relied upon by the employer from a previous complying agreement; reference to CSR limited v Gonzales and Bi-Lo P/L v Brown; Held– not necessary for the worker to establish that he has had a deterioration of his condition since previous complying agreement; Gonzales distinguished and estoppel limited to a previous agreement that the worker had 46% whole person impairment; referral for assessment for permanent impairment of the body systems claimed by the worker.
Decision date: 12 April 2022| Member: John Isaksen
Application to set aside notice issued pursuant to section 145 of the 1987 Act; employment, insurance, notice of injury, injury, incapacity and reasonable necessity of medical treatment in issue; applicant relied on section 11A of the Workers Compensation Act 1987(1987 Act), with respect to performance appraisal, discipline and/or provision of employment benefits; consideration of Attorney General’s Department v K; State Transit Authority of New South Wales v Fritzi Chemler; Pirie v Franklins Ltd; Department of Education and Training v Sinclair; Irwin v Director-General of Education; Kushwaha v Queanbeyan City Council; Hamad v Q Catering Limited. Held- second respondent was employed by the applicant, which was uninsured at the date of injury; second respondent sustained psychological injury in the employ of the applicant, as a result of aggravation, acceleration, exacerbation or deterioration of disease, pursuant to section 4(b)(ii) of the 1987 Act; second respondent complied with the notice provisions in giving notice of the injury; applicant does not have a defence to the claim, pursuant to section 11A of the 1987 Act; medical treatment afforded to the second respondent was reasonably necessary as a result of the injury; application to set aside section 145 notice refused; applicant to pay first respondent the sum of $155,664.87, in accordance with the notice; award for the third respondent; second respondent has at all material times had no capacity for work.
Decision date: 12 April 2022| Senior Member: Kerry Haddock
Application for declaration that applicant was not required to attend earning capacity assessment pursuant to section 44A of the Workers Compensation Act 1987, where liability for the claim has been disputed; Held-there is no dispute before the Commission; and it has no jurisdiction to make the declaration sought; consideration of Chatto v Transfield Services (Australia) Pty Ltd; Widdup v Hamilton; University of New South Wales v Lee; De Vries v Bega Valley Shire Council; the order sought is declined and the Application is dismissed.
Decision date: 13 April 2022| Senior Member: Kerry Haddock
Lump sum claim arising out of motor vehicle accident; liability for wrist accepted, but denied for left elbow and ulnar peripheral nerve; whether the assertion of injuries in statement sufficient to overcome the lack of contemporaneous evidence over a period of three years; whether findings by medico-legal expert without contemporaneous support adequate to establish claimed injuries and/or consequential conditions; Held- many contemporaneous records and claim forms did not mention the disputed claims in circumstances where lesser injuries such as bruising had been noted; applicant attempt to link subsequent complaints to the accident speculative; medicolegal expert unconvincing and lacking in causative explanation; applicant's statement compromised by passage of time and possibility of reconstruction, although no question raised as to her integrity; claims rejected; accepted injury not assessed as reaching the threshold; award respondent.
Decision date: 13 April 2022| Senior Member: John Wynyard
Section 60 of the Workers Compensation Act 1987 (1987 Act) claim including claim for cost of future left shoulder surgery; applicant specifies injury when horse reared striking left shoulder; applicant claims no prior condition apart from fractured left clavicle 21 years prior; history given by applicant to doctors; Held- incomplete for various reasons including failure to disclose a post injury dislocation, early reference to “recurrent” dislocations; award for applicant for section 60 of the 1987 Act expenses incurred for left shoulder in 2011 but causation of need for surgery not established; award for respondent in respect of section 60(5) declaration of the 1987 Act.
Decision date: 13 April 2022| Member: Philip Young
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and review under section 63 Motor Accidents Compensation Act 1999 (MAC Act); thirteen injuries listed in original application, nine resolved and four assessed (lumbar and cervical spine along with left and right shoulders); assessor determined current WPI greater than 10% but after reducing back, neck and left shoulder for pre-existing impairments determined WPI at 6%; claimant had earlier accident in 2009 and claim which settled; claimant had problems in various part of her body before and after that accident; no issue by claimant as to recovered injuries; no issue by insurer as to causation; methodology of calculation of pre-existing impairments in issue; Held- claimant’s WPI was not greater than 10% (8%); clause 1.31 of the Motor Accident Permanent Impairment Guidelines discussed and approach to calculation of pre-existing impairments considered; there was objective evidence of pre-existing symptomatic impairment in lumbar spine and cervical spine (were DRE II and still DRE II); based on consideration of 2009 medico-legal assessments and ongoing complaints and restriction of movement, left shoulder pre-existing impairment was 6%; no evidence of pre-existing impairment of right shoulder.
Decision date: 11 April 2022| Panel Members: Member Belinda Cassidy, Dr Mohammed Assem and Dr Drew Dixon | Injury module: Lumbar and cervical spines and left and right shoulders
Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury dispute and claimant’s review under section 7.26 of the MAI Act; claimant examined by two medical assessors; application for review of one lodged before outcome of the other assessment known; outcome of second in time assessment was that one injury was found to be non-minor; panel invited claimant to discontinue application; claimant asked Panel to proceed on basis the decision would assist the damages claim; Held- proceedings dismissed under s 54(b) of the Personal Injury Commission Act as they are now lacking in substance; discussion of relevance of minor injury decision as to the key that unlocks the door to ongoing statutory benefits under Part 3 of the MAI Act and the entitlement to recover damages under Part 4; threshold issue; not relevant to assessment of damages.
Decision date: 12 April 2022| Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Brian Williams | Injury module: Head (minor injuries)
Motor Accident Compensation Act 1999 (MAC Act); medical review panel; permanent impairment; causation; gastro-oesophageal reflux disease (GORD); constipation; opioid medication; medication consumption: whole person impairment; the claimant suffered injury in a motor vehicle accident; assessment of permanent impairment under the MAC Act; the dispute related to the ingestion of analgesic medications, opioids Panadeine Forte and Palexia; long term use of opioid medication, both pre- and post-accident; increase in medication usage as a result of chronic pain caused by accident; Held- GORD caused by the accident; constipation caused by the accident; analgesic gastropathy and medication induced motility disorder not caused by the accident; 0% whole person impairment (WPI) as a result of constipation under clause 1.248 of the Permanent Impairment Guidelines; 2% WPI as a result of GORD under Table 2, page 239 AMA 4 Guides; injury to right ankle and hindfoot previously assessed at 4% WPI and injury to lumbar spine previously assessed at 5% WPI; new combined certificate issued certifying a combined impairment of 11%.
Decision date: 12 April 2022| Panel Members: Member Susan McTegg, Dr Neil Berry and Professor Ian Cameron | Injury module: Digestive
Workers Compensation Medical Appeal Panel Decisions
Appeal by insurer asserting availability of additional relevant information, incorrect criteria and demonstrable error in respect of psychological injury acquired by gradual process; additional material relating to capacity to earn, relevant to error with respect to the Psychiatric Impairment Rating Scale area of function, “employability”; all material predated Medical Assessment Certificate (MAC) examination and appeared to have been in the possession of the insurer; that material, apart from one post MAC certificate of capacity, not admitted - application of Petrovic v BC Serv No 14 Pty Ltd and Ors; further application by appellant to admit other late documents including certificates of capacity, reports of treating psychiatrist and psychologist; not objected to by respondent worker; admitted pursuant to section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held- the additional material admitted required re-examination of the respondent worker; error established with respect to failure to provide reasons for assessment of Class 5 with respect to “employability”; following re-examination Panel was satisfied that respondent worker is appropriately assessed within Class 5 “employability”; the additional evidence and the opinion of the Medical Assessor member of the Panel established that the respondent worker appeared to have suffered an increased level of impairment with respect to “social and recreational activities” and was now appropriately assessed as falling within class 3 rather than Class 2 assessed in the MAC; MAC revoked.
Decision date: 31 March 2022| Panel Members: Member William Dalley, Dr Douglas Andrews and Professor Nicholas Glozier |Body system: Psychiatric/ psychological
Psychological Injury; appellant alleged error in the assessment of five categories under the Permanent Impairment Rating Scale (PIRS) namely Self-Care and Personal Hygiene, Social and Recreation Activities, Travel, Social Functioning and Concentration, Persistence and Pace; the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held- Medical Assessment Certificate confirmed.
Decision date: 1 April 2022| Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong |Body system: Psychiatric/ psychological
Worker appeals from assignment of classes in Psychiatric Impairment Rating Scale categories (PIRS) of Travel, Social functioning, and Concentration; relies on post Medical Assessment Certificate (MAC) statement to support argument that MA did not make enquiries or did not record her answers relevant to these categories during his consultation; Pitsonis v Registrar of the Workers Compensation Commission & Anor and Lukacevic v Coates Hire Operation Pty Ltd considered; Held- that in the circumstances the post MAC statement of the worker should not be admitted; on analysis of the PIRS categories Medical Appeal Panel (MAP) finds error in respect of classification of Travel; otherwise no demonstrable error. MAC revoked and new MAC issued to reflect the MAP’s determination in respect of Travel.
Decision date: 7 April 2022| Panel Members: Member Paul Sweeney, Dr Michael Hong and Dr Patrick Morris |Body system: Psychiatric / psychological
Respondent worker was referred for assessment of whole person impairment (WPI) resulting from injury to left knee on 8 October 2015; respondent had suffered previous injury to left knee on 17 October 1996; Medical Assessor considered that a proportion of respondent’s WPI was due to previous injury but considered it was too difficult and costly to determine what the proportion would be so assumed it was 10% pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that assumption was at odds with the evidence; Appeal Panel considered that the evidence established that the respondent had extensive arthritis in left knee immediately before her injury on 8 October 2015 and that the arthritis was initiated by her earlier injury; the Appeal Panel considered, given the extent of the arthritis in the respondent’s left knee at the time of her injury on 8 October 2015, making an assumption that the proportion to which the earlier injury contributed to her WPI was 10% is at odds with the evidence; Held- Medical Assessment Certificate revoked.
Decision date: 7 April 2022| Panel Members: Member Marshal Douglas, Dr John Brian Stephenson and Dr Neil Berry |Body system: Left lower extremity
Appeal by employer against Medical Assessment Certificate (MAC) of Dr R Kuru on the basis of demonstrable error and assessment made on the basis of incorrect criteria; the principal ground of appeal was that the Medical Assessor failed to make a deduction for previous injury, condition or abnormality in accordance with section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in the face of evidence of a previous injury to the lumbar spine and a 25 year history of intermittent lower back pain; finding that such a deduction should have been made, and that it should be 10% of the whole person impairment assessed as a result of the subject injury to the lumbar spine; Held- MAC revoked and new MAC issued.
Decision date: 12 April 2022| Panel Members: Member Brett Batchelor, Dr Drew Dixon and Dr Margaret Gibson |Body system: Lumbar spine and skin (TEMSKI)
Psychological Injury; appellant alleged error in the assessment of one category under the Permanent Impairment Rating Scale (PIRS) namely employability and in the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of one-third in respect of pre-existing injury, abnormality or condition; the Panel found that the Medical Assessor (MA) erred in assessing Class 4 when he should have assessed Class 5 for employability; the Panel found the MA erred in making a deduction of one-third under section 323 of the 1998 Act; the deduction of 1/3 was not open to the MA on the available evidence which demonstrates that the appellant’s conversion disorder was not active at the time of the subject injury; she had some depressive symptoms but no documented impairment and her taking of antidepressant medication prior to injury cannot justify a 1/3 deduction, noting as well that MA diagnosed the appellant as suffering post- traumatic stress disorder as a result of the subject injury, a psychological condition which the appellant had not previously suffered; the Panel made a 1/10th deduction; Held- Medical Assessment Certificate revoked.
Decision date: 12 April 2022| Panel Members: Member Jane Peacock, Dr Douglas Andrews and Dr Brian Parsonage |Body system: Psychiatric/psychological
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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