Legal Bulletin No. 60
This bulletin was issued on 13 May 2022
Issued 13 May 2022
Welcome to the sixtieth 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.
WORKERS COMPENSATION – procedural fairness; onus of proof; inferences drawn; discussion of Jones v Dunkel  HCA 8; 101 CLR 298; adequacy of reasons; Beale v Government Insurance Office of NSW applied.
Decision date: 29 April 2022 | Before: Acting Deputy President Parker SC
Motor Accidents non-Presidential Member Decisions
Claimant seeks leave from the Personal Injury Commission to lodge her claim for damages after the three-year limitation period section 7.33 Motor Accident Injuries Act 2017 (MAI Act); satisfied a full and satisfactory explanation for the delay section 6.14(3) of the MAI Act within the meaning; section 6.2(1) and section 6.2(2) of the MAI Act; leave granted for the claim to be referred for assessment in accordance with the Motor Accident Guidelines.
Decision date: 30 March 2022 | Member: Elyse White
Contributory negligence; learner driver; onus of proof; inferences to be drawn; failure to provide statements; failure to take evasive action.
Decision date: 9 April 2022 | Member: Hugh Macken
Whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant was riding his motorcycle on a road with a 100km/h speed limit; approaching a vehicle which appeared to be stationary at some distance in front of the claimant; no brake lights applied by the vehicle nor right hand indicator activated; vehicle then attempted to make a right hand turn across the roadway into a driveway; claimant on his motorcycle had to take evasive action to avoid a collision; lost control of the motorcycle and sustained injuries; Held- motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.
Decision date: 14 April 2022 | Member: David R Ford
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant; section 3.28 of the Motor Accident Injuries Act 2017; where claimant’s vehicle struck in the rear by police vehicle at speed under flashing lights and siren en route to emergency; where claimant had commenced changing lanes at the time of the collision; whether driver of police vehicle took reasonable care; social utility of police vehicle attending emergency; whether the claimant failed to give way to emergency police vehicle; sections 5B, 5C and 5R of the Civil Liability Act 2002; Road Rules 79 and 305 of NSW Road Rules 2014; finding of contributory negligence on the part of the claimant assessed at 50%; Held– claimant not mostly at fault.
Decision date: 29 April 2022 | Member: Maurice Castagnet
Workers Compensation non-Presidential Member Decisions
The applicant was employed by two employers at the time he sustained injury in the course of his employment with the respondent and is in receipt of weekly compensation payable under the Workers Compensation Act 1987 (1987 Act) resulting from that injury; the applicant claims his pre-injury average weekly earnings (PIAWE) should be calculated in accordance with Schedule 3 item number 8 of the 1987 Act; the respondent disputes the applicant’s claim, with submission that the applicant’s PIAWE should be calculated in accordance with Schedule 3 item number 2 or item number 4 of the 1987 Act; Held– the applicant’s PIAWE is to be calculated in accordance with Schedule 3 item number 8 of the 1987 Act.
Decision date: 28 April 2022 | Member: Jacqueline Snell
Claim for lump sum compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act); applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” that may give rise to a claim for lump sum compensation for permanent impairment under section 66(1) of the 1987 Act; Held– the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A of the 1987 Act that may give rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.
Decision date: 28 April 2022 | Member: Karen Garner
Claim for weekly payments of compensation and lump sum payment for injury to the lumbar spine, right hip, and both knees, as well as psychological injury due to bullying in the workplace; respondent concedes injury to the lumbar spine but disputes all other injuries; claim for right hip made pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; claim for right knee condition made in the alternative as a consequential condition; reference to Attorney General’s Department v K in regard to claim for psychological injury; respondent disputes that the Commission has jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act in the circumstances of this dispute; reference to several decisions of Members of the Commission on this issue; Held– worker sustained disease injury to his right hip as provided for by section 4(b)(ii) of the 1987 Act; award for the respondent for the claims of injury to both knees; worker sustained consequential condition affecting his right knee as a result of injury to the right hip; worker sustained a psychological injury in the course of his employment; Commission has jurisdiction to make an award of weekly payments pursuant to section 38 of the 1987 Act in the circumstances of this dispute; award of weekly payments and referral to Medical Assessor/s for assessment of permanent impairment for both physical and psychological injuries.
Decision date: 28 April 2022 | Member: John Isaksen
Section 4(b)(ii) of the Workers Compensation Act 1987 injury to the cervical spine disputed but injury to the lumbar spine accepted as a result of the ergonomics of the applicant’s working environment; contemporaneous evidence; Department of Education and Training v Ireland; Nguyen v Cosmopolitan Homes; Federal Broom Co Pty Ltd v Semlitch; State Transit Authority v El-Achi; AB v AW; EMI (Australia) Ltd v Bes; Tubemakers of Australia Ltd v Fernandez; Woolworths Limited v Christopher-Coates; Davis v Council of the City of Wagga Wagga; Mason v Demasi; Bugat v Fox; Department of Aging, Disability and Home Care v Findlay; and Hancock v East Coast Timbers Products Pty Ltd considered and applied.
Decision date: 29 April 2022 | Member: Anthony Scarcella
Claim for lump sum compensation; psychological injury; worker had accepted exacerbation of pre-existing psychological condition; whether injury was wholly or predominantly caused by reasonable action with respect to discipline; finding that the respondent had not discharged its owners to establish that the injury was wholly or predominantly; Held- matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from psychological injury.
Decision date: 29 April 2022 | Member: Jill Toohey
Worker totally incapacitated by accepted psychological injury; Respondent denies liability on the basis that injury was wholly or predominantly caused by action with respect to discipline, performance appraisal, and dismissal within section 11A(1) of the Workers Compensation Act 1987 (1987 Act); worker subjected to lengthy performance improvement plans prior to dismissal; Dunn v Department of Education and Training and Chisholm v Thakral Finance Pty Ltd t/as Novatel Brighton Beach discussed and applied; Held- that the respondent had not established that that the performance improvement plans were “performance appraisal” or that its other actions which fell within section 11A(1) were the whole or predominant cause of injury; award for worker during first and second entitlement periods; permanent impairment claimed referred to an Medical Assessor.
Decision date: 29 April 2022 | Member: Paul Sweeney
Claim for lump sum compensation; worker suffered injuries to cervical spine, lumbar spine left upper extremity (shoulder), lower left extremity (knee, foot and ankle); no identified impairment in lumbar spine and body part assessed as 0% permanent impairment; whether body part of lumbar spine ought to be included in the referral to a Medical Assessor (MA); Held– claim made on the basis of combined assessment of worker’s medicolegal doctor that did not include any impairment assessment of the lumbar spine; no valid claim made in respect of any impairment to the lumbar spine capable of being referred for assessment by a MA; considered authorities regarding making a valid claim and Shankar v Ceva Logistics (Australia) Pty Ltd; no claim for impairment of the lumbar spine that was capable of forming the basis of a “medical dispute”; matter referred to a MA to assess the combined degree of permanent impairment resulting from the body parts to which rateable impairment has been identified by the worker’s medicolegal doctor.
Decision date: 29 April 2022 | Member: Nicholas Read
Claim for section 60(5) of the Workers Compensation Act 1987 declaration regarding cost of future left shoulder surgery; applicant’s credit regarding reporting of left shoulder injury in issue; held on the facts left shoulder ultrasound taken 2 weeks post injury and fellow worker’s account of incident consistent with applicant’s version of events; Dr Hyde page’s opinion concerning pain “masking” because of opioid medication for an unrelated injury regarded as a plausible explanation; Held- left shoulder surgery reasonably necessary resulting from 16 July 2020 injury; declaration in favour of the applicant.
Decision date: 2 May 2022 | Member: Philip Young
Claim for weekly compensation in respect of psychological injury due to “bullying and harassment”; factual dispute as to alleged workplace events; whether adequate history provided to treating practitioners and applicant’s medicolegal expert; contemporaneous evidence of concurrent personal stressors, performance management action and possible workplace restructuring inadequately addressed in applicant’s evidence; lack of particularity as to events relied upon; Held- weighing the evidence, the applicant failed to discharge his onus of establishing that employment was the main contributing factor or a substantial contributing factor to the injury; award for the respondent.
Decision date: 2 May 2022 | Member: Rachel Homan
Claim for compensation for permanent impairment for undisputed injury to cervical spine, left upper extremity (shoulder), right upper extremity (wrist), scarring (TEMSKI), and to the lumbar spine, disputed by the respondent; applicant relies on the ‘nature and conditions’ of her employment; the respondent asserts that such employment, whilst sufficient to be causative of the undisputed injuries, was not such as to cause injury to the lumbar spine; Held- finding that the arduous, strenuous and repetitive nature of the applicant’s employment causative of the aggravation of the applicant’s pre-existing degenerative condition in the lumbar spine; applicant’s employment was the main contributing factor to injury; award for the applicant in respect of injury to the lumbar spine; matter referred to Medical Assessor for assessment of permanent of all body parts claimed by the applicant.
Decision date: 2 May 2022 | Member: Brett Batchelor
Applicant claimed closed period of weekly benefits and medical expenses, including, pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act)the cost of proposed dental treatment, as a result of assault by a passenger on the bus he was driving; respondent disputed that the injury arose out of or in the course of employment, as the applicant was the aggressor and had grabbed the passenger, who retaliated in an attempt to get away; respondent disputed that the applicant had no capacity for work for the entire period claimed; and that the applicant was entitled to an award pursuant to section 60(5) of the 1987 Act; respondent relied on no medical evidence; CCTV footage of the incident taken by cameras in the bus viewed; consideration of Bill Williams Pty Limited v Williams; Held- injury arose out of or in the course of employment and employment was a substantial contributing factor to injury; applicant had no capacity for work in period claimed; award for the applicant for total incapacity pursuant to sections 36 and 37 of the 1987 Act; award for the applicant pursuant to section 60 of the 1987 Act including pursuant to section 60(5) in respect of proposed dental treatment.
Decision date: 2 May 2022 | Senior Member: Kerry Haddock
Accepted claim for injury to left shoulder and consequential condition of right shoulder; claim to have also sustained injury to neck; claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 in respect of 15% whole person impairment as a result of injury to left upper extremity; right upper extremity; and cervical spine; parties agreed that if applicant did not succeed on claim for injury to cervical spine, the medical dispute was not to be referred to a Medical Assessor, as her permanent impairment was not otherwise greater than 10%; lack of contemporaneous lay or medical evidence with respect to injury to cervical spine; first history of injury to cervical spine recorded by independent medical examiner four years after alleged injury; consideration of Nominal Defendant v Clancy; Davis v Council of the City of Wagga Wagga; and Nguyen v Cosmopolitan Homes; Held- No sense of actual persuasion that the applicant sustained injury to her cervical spine; award for the respondent with respect to the claim for injury to the cervical spine.
Decision date: 3 May 2022 | Senior Member: Kerry Haddock
Accepted by parties that applicant had a psychological injury arising out of her employment which was a substantial contributing factor; respondent alleged such injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of Section 11A of the Workers Compensation Act 1987 (1987 Act); in this case discipline; claim for total incapacity also disputed by Respondent; claim for permanent impairment compensation pursuant to section 66 of the 1987 Act in respect of 15% whole person impairment as a result of psychological injury; competing statements of lay witnesses; lack of contemporaneous medical evidence from treating doctor prior to notional date of injury; consideration of Poonan v George Weston Foods Pty Ltd and ISS Property Services Pty Ltd v Milovanovic; Held- Despite absence of treating doctor’s notes there was sufficient evidence from treating psychologist and lay witnesses including in the respondent’s evidence to conclude the disciplinary process which may have otherwise been reasonable was not a predominant cause of the psychological injury (the respondent not having seriously contended it was the whole cause); evidence including from respondent’s own doctor overwhelmingly supported finding of continuing total incapacity; award for the Applicant; matter remitted to the President for referral to Medical Assessor for assessment of whether applicant has attained maximum medical improvement and if so permanent impairment as a result of psychological injury.
Decision date: 3 May 2022 | Member: Christopher Wood
Claim for weekly payments of compensation for lumbar spine injury in 2005; worker paid weekly payments from 2005 to 2012 but claiming for 2 dependent children, for periods when he was outside the Commonwealth of Australia, the indexing of probable earnings but for the injury, and weekly payments from 2012 onwards; Held– worker has not provided sufficient evidence of having 2 children dependent upon him during period when he is entitled to receive weekly payments of compensation; worker can receive weekly payments of compensation when he was outside the Commonwealth of Australia; worker cannot index probable earnings but for the injury (reference to Whittaker v Abacus Security and Surveillance P/L); award for weekly payments at varying rates under various sections of the Workers Compensation Act 1987 from 12 August 2005 to 30 June 2015.
Decision date: 3 May 2022 | Member: John Isaksen
Workers Compensation Medical Appeal Panel Decisions
Appellant noted the Medical Assessor (MA) failed to refer to its IME report which claimed that the respondent had not reached maximum medical improvement (MMI); Panel confirmed failure to do so is a demonstrable error; re-examination required; respondent suffered from chronic recurrent dermatitis; Panel found MMI had been reached and that the MA’s findings regarding the effects on daily activities was consistent with the evidence; Held- Medical Assessment Certificate confirmed.
Decision date: 27 April 2022| Panel Members: Member Deborah Moore, Dr Paul Curtin and Dr Tim Anderson|Body system: Skin
Appellant challenged the assessment as regards the manner in which the Medical Assessor (MA) assessed the right ankle injury; although the MA’s comments on his findings on examination were fairly brief, he used a goniometer and clearly explained the results of his examination; his assessment took place some 18 months after the appellant was seen by her IME, Dr Tong; the appellant exhibited some flexion and extension; as the MA correctly noted: “It is not possible to suffer ankylosis and have a measurable ROM.” Held- Medical Assessment Certificate confirmed.
Decision date: 29 April 2022| Panel Members: Member Deborah Moore, Dr James Bodel and Dr Drew Dixon|Body system: Right lower extremity, scarring
Allegation of error with respect to history relied upon by the Medical Assessor (MA) as to the opinion of two treating specialists with regard to the requirement for knee replacement prior to the subject injury; the MA deducted one half pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 ; Held- error in respect of the chain of reasoning was established; it was arguable that the deduction assessed would be open upon the basis of the radiological evidence before and after the subject injury, but the MA had referred to the incorrect history as “strong evidence” supporting his view; upon review Medical Assessment Certificate revoked and a deduction of 2/5 was substituted.
Decision date: 2 May 2022| Panel Members: Member William Dalley, Dr James Bodel and Dr Mark Burns|Body system: Left lower extremity (knee)
Appeal seeking additional whole person impairment for the effects of treatment against an assessment of 13% regarding psychological claim; Held- Medical Assessor (MA) explicitly referred to the relevant guideline and explained his reasoning; MA under no obligation to ask the appellant the questions suggested in his submissions; Chan and Wingfoot considered; Medical Assessment Certificate confirmed.
Decision date: 2 May 2022| Panel Members: Member John Wynyard, Dr Douglas Andrews and Dr Nicholas Glozier |Body system: Psychiatric/Psychological
Worker alleges that Medical Assessor (MA) did not assess the medical dispute referred to him; he assessed whole person impairment (WPI) resulting from injury simpliciter rather than an injury which consisted in the aggravation of a disease in accordance with section 16 of the Workplace Injury Management and Workers Compensation Act 1998; the MA also erred in adding 2% WPI for ADLs; as the worker had difficulties with selfcare he should have added 3%WPI; Held- that while there were some ambiguities in the Medical Assessment Certificate (MAC) the worker had not demonstrated that the MA had failed to determine the medical dispute referred for assessment or erred in his assessment of ADLs; MAC confirmed.
Decision date: 2 May 2022| Panel Members: Member Paul Sweeney Dr James Bodel and Dr Margaret Gibson|Body system: Lumbar spine
Industrial deafness; appellant alleged error in the failure of the Medical Assessor (MA) to include losses at 1500 Hz; the Panel found MA’s reasoning did not explain adequately why the decline at 1500Hz, which he says includes loss that is the result of noise exposure, should not be included in the circumstances of this case which involve an extremely length period of noise exposure, namely, 49 years of noise exposure as a boilermaker, and, where there has already been an equation of the losses at the right ear to the left to exclude non-occupational noise exposure together with the mandatory statutory deduction to allow for presbycusis; Held- Medical Assessment Certificate revoked.
Decision date: 3 May 2022| Panel Members: Member Jane Peacock, Dr Paul Niall and Dr Brian Williams |Body system: Hearing loss
Appeal against assessment of 1/10th deduction for injury to the right knee from 20% whole person impairment and 1% for scarring; whether error of fact made by Medical Assessor (MA); whether error should cause a revocation of the Medical Assessment Certificate (MAC); whether MA obliged to refer to medical reports relating to pre-existing condition in any event; alleged that worker’s own expert had assessed a deduction of 40%, and appellant employer’s expert had assessed 50%; Held- MA mistaken when he stated that appellant employer’s expert reported prior to the last surgical procedure; his failure to analyse either of the two reports however did not vitiate the MAC; Chan and Wingfoot applied; the worker’s expert was palpably incorrect in his reasoning, and the appellant employer’s expert based his assumption that the asymptomatic degenerative changes made a ‘significant’ contribution to the development of osteoarthritis on an undated and unidentified investigation which was not otherwise mentioned in the evidence; contemporaneous material established that the meniscectomy first performed probably led to the further development of degenerative changes; MAC confirmed.
Decision date: 4 May 2022| Panel Members: Member John Wynyard, Dr James Bodel and Dr Drew Dixon |Body system: Right lower extremity and skin
Motor Accidents Merit Review Decisions
Whether the insurer is entitled to cease weekly payments of statutory benefits after 104 weeks under section 3.12, Division 3.3 of the Motor Accident Injuries Act 2017 where the claimant has not made a claim for damages; Held – the reviewable decision is affirmed.
Decision date: 12 April 2022| Merit Reviewer: Maurice Castagnet
Merit review; meaning of pre-accident weekly earnings, schedule 1(4)(2)(b) of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); change of earnings circumstance; whether PAWE can be adjusted by reason of the COVID-19 pandemic lockdown in the pre-accident period; disaster payments; earnings as an earner; Held– the reviewable decision is set aside.
Decision date: 26 April 2022| Merit Reviewer: Katherine Ruschen
Motor Accidents Merit Review Panel Decisions
Motor Accident Injuries Act 2017 (MAI Act); interim decision as to jurisdiction; statutory benefits claim; costs of medical disputes (minor injury and treatment) allowed on an exceptional basis under section 8.10(4) of the MAI Act and reasonable and necessary costs assessed; application by insurer for review of decision; preliminary point as to jurisdiction of Merit Review Panel; Held- Merit Review Panel has no power to review decision made in respect of section 8.10(4) of the MAI Act; that decision was a decision made by the Commission as constituted by a member and is not a merit review matter as listed in Schedule 2(1) of the MAI Act; Merit Review Panel’s jurisdiction is limited to an assessment of whether the claimant’s costs as permitted by the Motor Accident Injuries Regulation or by the Commission (constituted by the member) are reasonable and necessary; Rymer v Allianz Insurance [NSWPICMR] 45 and Allianz Insurance v Rymer  NSWPIC 534 referred.
Decision date: 3 February 2022| Merit Review Panel: Belinda Cassidy, Susan McTegg and Katherine Ruschen
Motor Accident Injuries Act (MAI Act); final decision as to assessment of costs following interim decision as to jurisdiction; statutory benefits claim; costs of medical disputes awarded at first instance on an exceptional basis under section 8.10(4) of the MAI Act and assessment of those costs; application by insurer for review of merit review decision; issue as to scope of costs; whole of claim or whole of medical assessment process or limited to Medical Review Panel matter only; issue of interpretation of original decision; issue of quantification of costs; Held- Merit Review Panel has no power to review any part of the merit review decision made in respect of section 8.10(4) of the MAI Act including the scope of cost; Member’s decision allowed exceptional costs of Medical Review Panel matter only; assessment of costs in a scheme where CTP premiums are compulsorily levied requires a level of scrutiny; itemised bill of costs submitted by claimant; original claim for costs in excess of $69,500, original decision certified reasonable and necessary costs of $35,255; Merit Review Panel’s assessment of reasonable and necessary costs of $16,642.50; regulated costs of $1,710 allowed for the review of the Merit Review decision.
Decision date: 13 April 2022| Merit Review Panel: Belinda Cassidy, Susan McTegg and 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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