Legal Bulletin No. 58

Issued 29 April 2022

Welcome to the fifty-eighth 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.

Motor Accidents non-Presidential Member Decisions

Leggett v AAI Limited t/as GIO [2022] NSWPIC 163

Late claim for damages referred for assessment 3 years and 8 months after the accident section 7.33 of the Motor Accident Injuries Act 2017; whether full and satisfactory explanation for the delay has been provided; claimant relied on lawyers; not advised of time limits; Smith v Grant applied; Held- comprehensive account of relevant acts and omissions provided; claimant relied on lawyers to progress his claim; it was reasonable for the claimant to rely on his lawyers; claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment.

Decision date: 4 March 2022 | Member: Brett Williams

Williams v QBE Insurance (Australia) Limited [2022] NSWPIC 164

Claims assessment; claim referred to the Personal Injury Commission (Commission) more than 3 years after the motor accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted by the Commission; operation of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of ‘full and satisfactory explanation’ where the term is defined for the purposes of Part 6 of the MAI Actbut not Part 7;  comparison with provisions in the Motor Accidents Compensation Act 1999 (1999 Act); applicability of authorities addressing 1999 Act provisions relating to ‘full and satisfactory explanation; application for referral to the stood over list; Held - for the purposes of section 7.33 of the MAI Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment.

Decision date: 6 April 2022 | Member: Shana Radnan

Leow v Allianz Australia Insurance Limited [2022] NSWPIC 166

Miscellaneous assessment matter; the claimant a pedestrian crossing 20m east of intersection ran in front of two vehicles stopped for red light and subsequently is hit by insured travelling in the third lane; insured driver was travelling along Liverpool Road, in the right hand lane in a easterly direction; collision between the claimant and the insured driver as claimant walked/ran out in front of the insured without warning; speed limit 60km/h; insured driver travelling within the speed limit; insured driver faced with a solid green light; whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Held- the claimant was mostly at faut running into path of oncoming vehicle,insured driver was keeping a proper lookout; the accident caused mostly by the fault of the claimant, no reason to change 80% contributorily negligent.

Decision date: 15 April 2022 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

CAA v Secretary, Department of Education [2022] NSWPIC 143

The applicant claims weekly benefits and medical and related treatment resulting from primary psychological injury sustained in the course of employment with the respondent; the applicant’s claim is disputed with the respondent raising defence under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline; Held– defence raised under section 11A(1) of the 1987 Actfails and the applicant has entitlement to weekly benefits and medical and related treating resulting from primary psychological injury sustained in the course of his employment with the respondent.

Decision date: 5 April 2022 | Member: Jacqueline Snell

Ferro v Mercon Group Pty Limited [2022] NSWPIC 165

Claim for weekly compensation; injury to left lower extremity accepted; respondent disputes injury to cervical spine, lumbar spine, visual system and psychological injury; applicant’s preinjury earnings agreed; Held- the applicant has not discharged the onus of proof with respect to the alleged injuries to the cervical spine, lumbar spine and the visual system; award for the respondent on the claim for injuries to those body systems; the evidence, including that of the applicant’s general practitioner, discloses the applicant suffered a psychological injury; the lay and medical evidence supports a finding the applicant was totally incapacitated for employment for the relevant 130 week period; the applicant has not discharged the requirements for establishing an entitlement to weekly benefits pursuant to section 38 of the Workers Compensation Act 1987 (1987 Act); respondent to pay the applicant weekly compensation from the date of injury to 2 August 2019 in accordance with sections 36 and 37 of the 1987 Act.

Decision date: 14 April 2022 | Member: Cameron Burge

Fernandez v The Benevolent Society [2022] NSWPIC 167

Claim by appellant for the cost of two staged surgery procedure proposed by Dr Papantoniou, namely L5/S1 fusion to be performed first, and the revision L3-S1 fusion, reasonably necessary as a result of injury to the lumbar spine on 2 March 2011; the respondent denies the reasonable necessity for such surgery, claiming that in accordance with Diab v NRMA Ltd that alternative pain management treatment should be first be pursued before the extensive and expensive two surgery proposed be embarked upon, and that the applicant’s social circumstances may be a driver of the applicant’s pain, accepting however the genuineness of her complaints of pain; the respondent also submits that the treating surgeon is the only specialist advocating surgery, and that his opinion lacks objectivity because of his failure to comply with Practice Note 3 of the Personal Injury Commission, or record any other declaration of objectivity; the respondent’s Independent Medical Examiner acknowledges a minor lumbar strain only as a result of the frank incident in which the applicant was involved; long history of conservative treatment with short term limited relief from pain or symptoms; Held- finding that the surgery proposed reasonably necessary as a result of injury on 2 March 2011.

Decision date: 19 April 2022 | Member: Brett Batchelor

Vila v Essential Smash Repairs Pty Ltd (Deregistered) & others [2022] NSWPIC 168

Calculation of pre-injury average weekly earnings; meaning of “actual earnings paid or payable” in section 44E(1)(b) of the Workers Compensation Act 1987 as in force at the date of injury; Speirs v Industrial Relations Commission of NSW; Flying Solo Properties Pty Ltd t/as Artee Signs v Collet referred; Held– finding that actual earnings paid or payable was the rate at which the worker was paid.

Decision date: 20 April 2022 | Member: Catherine McDonald

Wiltshire v Cram Fluid Power Pty Ltd [2022] NSWPIC 169

The applicant makes a claim for permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury to the left wrist and consequential injury to the right wrist, right shoulder, left shoulder and cervical spine; alleged consequential injury to the right wrist, right shoulder, left shoulder and cervical spine placed in issue; Held– the applicant has sustained consequential injury to his right wrist and right shoulder resulting from injury sustained to his left wrist in the course of his employment with the respondent; award for the respondent in respect of alleged consequential injury to his left shoulder and cervical spine; the applicant’s claim for permanent impairment compensation resulting from injury sustained by the applicant to his left wrist and consequential injury to his right wrist and right shoulder, as agreed or determined, is remitted to the President for referral to Medical Assessor for the purposes of assessment of whole person impairment.

Decision date: 20 April 2022 | Member: Jacqueline Snell

Maple v Cromer Golf Club Limited [2022] NSWPIC 170

Disputed work capacity decision; sole issue the applicant’s ability to earn; parties agree applicant’s capacity 16 hours per week but dispute because applicant actually earning $16.63 per hour; Held- applicant capable of earning $25.00 per hour over a sixteen-hour week; no dispute concerning pre-injury average weekly earnings; award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 accordingly.

Decision date: 20 April 2022 | Member: Philip Young

Motor Accidents Medical Review Panel Decision

Allianz Australia Insurance Ltd v Vella [2022] NSWPICMP 86

The claimant was involved in a motor accident on 18 April 2016 when he sustained various injuries; finding made the low back not injured in motor accident because of prior back injury, delay in complaints including in the claim form and onset of pain explicable by prior work injury and ongoing heavy lifting at work; findings made that claimant injured his cervical spine and right shoulder; the motor accident involved another vehicle colliding with the driver door resulting in direct impact into the shoulder; claimant had contemporaneous and consistent complaints of cervical spine and right shoulder symptoms; the claimant was examined by a Medical Assessors and found asymmetric movement in the cervical spine which was consistent with pathology; claimant had developed adhesive capsulitis following right shoulder surgery; Held- poor outcome from surgery which was causally related to the motor accident was assessable and compensable; Hunter v Insurance Australia Ltd applied; claimant assessed at 15% whole person impairment; original assessment revoked because injury findings differed from original assessment.

Decision date: 4 April 2022| Panel Members: Principal Member John Harris, Professor Ian Cameron and Dr Drew Dixon| Injury module: Spine and upper limb

Workers Compensation Medical Appeal Panel Decisions

Altos v N & S Trolley Services Pty Ltd [2022] NSWPICMP 87

Claim for further permanent impairment compensation for lumbar spine and digestive system; Medical Assessor issued two Medical Assessment Certificates (MAC); MACs internally inconsistent; requirement to show path of reasoning; State of NSW v Kaur discussed; re-examination Held– MAC revoked.

Decision date: 14 April 2022| Panel Members: Member Catherine McDonald, Dr John Dixon-Hughes and Dr Mark Burns|Body system: Lumber spine and digestive system

Upper Hunter Shire Council v Towns [2022] NSWPICMP 88

Employer’s appeal from assessment of whole person impairment (WPI) as a result of an injury to the worker’s lumbar spine on 24 March 2009; Medical Assessor (MA) assessed an additional 1% WPI pursuant to Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment for previous laminectomies to the lumbar spine in 1991, and 1986, and to the lower thoracic spine in 2004; Held- that as the medical dispute between the parties concerned the consequences of the injury on 24 March 2009, it was not open to the MA to include the previous surgeries in the assessment of WPI; the MA also erred in considering the surgery in 2004 to the thoracic segment of the spine as a basis for a deduction from the assessed WPI in the lumbar segment of the spine pursuant to section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment revoked.

Decision date: 19 April 2022 | Panel Members: Member Paul Sweeney, Dr Tommasino Mastroianni and Dr Drew Dixon |Body system: Lumbar spine

Ward v RSL Lifecare Limited [2022] NSWPICMP 89

Appeal against finding of nil per cent for referral regarding injury to cervical spine; whether Medical Assessor (MA) entitled to ignore terms of referral and find no injury; failure by parties to ensure terms of consent order reflected their agreement; Held- parties agreed at the teleconference that the referral was to describe the cervical spine as a ‘consequential condition’ but consent orders and referral described an ‘injury’ instead; finding by MA that asymmetrical range of motion in the cervical spine not assessable contrary to terms of referral; settled law that an MA is confined by the terms of the referral, subject to when it does not reflect the agreement between the parties as to the dispute; Skates applied; Medical Assessment Certificate revoked and 7% whole person impairment added for impairment to the cervical spine.

Decision date: 19 April 2022| Panel Members: Member John Wynyard, Dr John Brian Stephenson and Dr Gregory McGroder |Body system: Left upper extremity and cervical spine

Forbes Shire Council v Young [2022] NSWPICMP 90

Psychological injury; Psychiatric Impairment Rating Scale categories of travel and concentration, persistence and pace; worker resided in an isolated location and took a 500km round trip for medical treatment; assessment in class 2 for travel was appropriate in the circumstances; Ferguson v State of New South Wales and Parker v Select Civil mentioned; Held- Medical Assessment Certificate confirmed.

Decision date: 20 April 2022| Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Patrick Morris |Body system: Psychiatric/psychological

Motor Accidents Merit Review Decisions

Cresswell-Hughes v QBE Insurance (Australia) Limited [2022] NSWPICMR 21

Merit review; whether costs are reasonable and necessary; schedule 2(1) (aa) of the Motor Accident Injuries Act 2017 (MAI Act); section 8.10 of the MAI Act; costs of internal review; costs of medical assessment; schedule1(2) of the Motor Accident Injuries Regulation 2017; regulation 10; regulation 20; regulation 22; regulation 23; Held– the application is remitted to the insurer.

Decision date: 19 April 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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