Legal Bulletin No. 62
This bulletin was issued on 27 May 2022
Issued 27 May 2022
Welcome to the sixty-second 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 – section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and clause 2 of Schedule 1 to the 1998 Act; requirement to establish an intention to create legal relations; Secretary, Department of Family and Community Services v Bee discussed; principles applicable to disturbing a Member’s factual determination; Raulston v Toll Pty Limited applied.
Decision date: 13 May 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
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; the claimant was attempting to make a right hand turn at an intersection when his vehicle was struck by the insured’s motor vehicle which was travelling in the opposite direction; the collision occurred between both vehicles at the intersection; the insured’s driver travelling at an excessive speed in the circumstances and not keeping a proper lookout; the claimant was attempting to make the right hand turn with all due care and caution and was travelling at a very slow speed; 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 together with unregulated fee incurred in obtaining a report from Traffic engineer.
Decision date: 11 May 2022 | Member: David R Ford
Settlement approval; insurer arranged for the claimant to be assessed in respect of his whole person impairment by a medico-legal expert however, there was no assessment of the claimant’s surgical scars under the TEMSKI scale; claimant is unrepresented; insurer failed to request claimant to provide it with clear colour photographs of the surgical scars upon his body; Member concerned the surgical scars may attract a whole person impairment of some significant degree; section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) considered; Held- proposed settlement is rejected as Member is not satisfied the settlement complies with the applicable requirements of the MAI Act or the Motor Accident Guidelines 2017.
Decision date: 13 May 2022 | Member: David R Ford
Settlement approval; 69-year-old female; passenger in accident; 9 fractured ribs, fractured sternum, shock and bruising; 0% whole person impairment so no entitlement to non-economic loss; past economic loss; future economic loss Penrith City Council v Parks considered; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 18 May 2022 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for proposed medicinal cannabis treatment; accepted lumbar injury; whether treatment is reasonably necessary; alternative treatment in form of pain management program suggested by respondent’s expert; adverse side effects considered; where prior addiction history disclosed to treating practitioners; multimodal conservative treatment attempted with adverse reactions noted in the medical evidence; ongoing physical and psychological symptoms; Held- a one-month trial of the medicinal cannabis treatment program proposed by the treating practitioner is reasonably necessary.
Decision date: 12 May 2022 | Member: Rachel Homan
Consideration of defence pursuant to section 14(2) of the Workers CompensationAct 1987 Act (1987 Act); defence failed as clear that the applicant has sustained a serious and permanent disablement; characterisation of environment where the applicant sustained injury was found to be a seamless continuation of work Christmas function at the respondent’s family residence; Held- finding that injury was sustained within the meaning of section 4 of the 1987 Act.
Decision date: 12 May 2022 | Senior Member: Elizabeth Beilby
Applicant unable to wear personal protective equipment (mask) without aggravating his sinusitis; Hospital respondent unable therefore to continue employing him; whether NSW Health Orders can be waived; whether employment a substantial contributing factor or the main contributing factor; Held- applying Badawi and AV, employment neither substantial or main contributory factor; onus of proof not met; public policy during unprecedented emergency due to pandemic not shown to have any exceptions: award respondent.
Decision date: 13 May 2022 | Member: John Wynyard
Application by the respondent for admission of documents and material that should have been disclosed to the applicant in support of the respondent’s defence to the applicant’s claim pursuant to section 11A of the Workers Compensation Act 1987 (1987 Act) and attached or referred to in section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notices; consideration of Procedural Direction PIC3, regulations 38(1) and 41(1) of the Workers Compensation Regulation 2016; Held- finding that the applicant was prejudiced by the non-disclosure of the documents and material and failure of the respondent to refer to or attach such documents and material to the section 78 of the 1998 Act notices, which was not cured by a direction for lodgement of evidence at the telephone conference; respondent’s application for admission of the documents and material refused.
Decision date: 16 May 2022 | Member: Brett Batchelor
Application for reconsideration of claim for death benefit to make a claim for interest on lump sum from date of claim to date of determination; consideration of Samuel v Sebel Furniture Limited; Cameron v StateCover Mutual Ltd; Zhang v Universe Investments Pty Ltd t/as Kings Seafoods; Port of Melbourne Authority v Anshun Pty Ltd; Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd; Kaur v Thales Underwater Systems Pty Ltd; Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited; Baldwin v Fleetmaster Services Pty Ltd; Mudgee Explorer Tours Pty Ltd v Clarke; Hu v Rongfar Property Services Pty Ltd; Youseph v Homebush Unit Trust t/as Primo Smallgoods; and Hughes Helicopters Pty Ltd v Brink; Held- decision of Commission reconsidered; award for applicant of interest from date claim was accepted, as applicant is minor child of deceased worker; interest to be paid on lump sum of $504,350 from 11 August 2021 to 18 February 2022 at the rate of 2% per annum; first respondent to pay interest to NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the Workers Compensation Act 1987 for the applicant until she attains the age of 18 years.
Decision date: 16 May 2022 | Senior Member: Kerry Haddock
Psychological Injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); applicant alleged he sustained a psychological injury due to bullying and harassing behaviour at work by his supervisor; whether the applicant sustained an injury pursuant to sections 4(a), 4(b)(i) and 9A of the 1987 Act; respondent raised defence pursuant to section 11A(1) of the 1987 Act; whether the applicant’s employment was the main contributing factor to his psychological injury; whether the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; Held– applicant sustained a compensable psychological injury pursuant to sections 4(b)(i) of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; matter referred to President for referral to a Medical Assessor for determination of whole person impairment.
Decision date: 16 May 2022 | Member: Karen Garner
Claim for the cost of two lots of surgery as a result of injury to the right wrist in the form of carpal tunnel syndrome, and the condition of cubital tunnel syndrome consequent upon such wrist injury, and for weekly benefits for two periods of 14 days each following such surgery; the first respondent was uninsured at the time of injury; the second respondent denied liability for the claim on the basis that the accepted injury to the right wrist did not result in the applicant suffering carpal tunnel syndrome and the condition of cubital tunnel syndrome consequent upon such injury; Held- finding that the applicant worker did suffer from carpal tunnel syndrome as a result of the accepted injury to the right wrist and also from the condition of cubital tunnel syndrome consequent upon such injury; finding that the two lots of surgery to the applicant’s right wrist and elbow were reasonably necessary as a result of injury to the right wrist; finding that the applicant was totally incapacitated for work for the two periods of 14 days each following the two lots of surgery; the second respondent ordered to pay the applicant’s section 60 of the Workers Compensation Act 1987 (1987 Act) expenses as a result of injury to the right wrist, including the costs of surgery, and weekly benefits for the two periods of 14 days each following surgery; the first respondent ordered to reimburse the second respondent for the compensation paid pursuant to the awards in favour of the applicant for section 60 of the 1987 Act expenses and weekly benefits.
Decision date: 16 May 2022 | Member: Brett Batchelor
The applicant sustained cervical spine injuries in 1997 and 2000; these injuries caused radicular type symptoms in the right arm; prior medical assessments for threshold purposes only attributed the entire cervical spine assessment to the 1997 injury and the right arm assessment to the 2000 injury; the claimant brought the present proceedings seeking to aggregate the right arm assessment with the cervical spine assessment for the 1999 injury; Held- common law principles of causation apply to the Workers Compensation Acts: Ozcan v Macarthur Disability Services Ltd and Secretary, Department of Education v Johnson considered; a review of the medical evidence and the medical assessments established that the assessment of the right arm symptoms to an aggravation of the cervical spine surgery which was caused by the 1997 injury; this meant that the assessment of the right upper extremity resulted from the 1997 injury and fell within the second category of State Government Insurance Commission v Oakley; order made for aggregation; observations made that the decision was not an endorsement that a new claim could be brought, or reconsideration sought of prior orders in light of the Court of Appeal’s reasoning in Ozcan.
Decision date: 17 May 2022 | Principal Member: John Harris
Claim for weekly payments and section 66 of the Workers Compensation Act 1987 (1987 Act); due to heavy and repetitive work as a barman & cellarman; allegations of cervical & lumbar spine injury section 4 (b) (ii) of the 1987 Act from 2014 to September 2015 then up to & on ANZAC day 25 April 2018; Held- applicant’s claim for cervical spine injury accepted but claim for lumbar spine injury or consequential condition not established on the evidence; award in favour of applicant for weekly payments 26 April 2018 for 130 weeks; matter remitted to the President for referral of cervical spine injury for assessment.
Decision date: 18 May 2022 | Member: Philip Young
Claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); accepted frank injury to left knee; in 2014, claim for compensation pursuant to section 66 of the 1987 Act in respect of frank injury to left knee resolved by complying agreement pursuant to section 66A of the 1987 Act and compensation paid pursuant to the complying agreement on basis of 4% whole person impairment (WPI); accepted consequential condition to right knee; in 2021, claim for compensation pursuant to section 66 of the 1987 Act in respect of left knee frank injury and right knee consequential condition on basis of 34% WPI; whether 2021 claim for compensation pursuant to section 66 of the 1987 Act precluded by section 66(1A) of the 1987 Act on basis that it is a second claim; whether 2021 claim was a variation of the 2014 claim; Held– the applicant has no entitlement to pursue the claim for permanent impairment compensation pursuant to section 66 of the 1987 Act.
Decision date: 18 May 2022 | Member: Karen Garner
Motor Accidents Medical Review Panel Decisions
Medical assessment of whole person impairment (WPI) and insurer’s review under section 7.26 of the Motor Accidents Injuries Act 2017; collision involving side impact from the left. Injuries alleged included cervical spine, left and right shoulders, left and right knee; original assessment assessed WPI at 12%; attendance at hospital for left knee pain and possible neck injury. After five weeks referral for bilateral shoulder ultrasounds; right knee pain allegedly developed six months after accident; issues of causation and consistency; Held- neck injury now DRE 1; no direct injury to shoulders but shoulder restriction due to neck injury; injury to left knee but not right knee; in terms of WPI assessment shoulder movement inconsistent therefore range of motion method not adopted; left knee injury had recovered and no WPI; total WPI 3%; no real matter of principle.
Decision date: 3 May 2022| Panel Members: Member Belinda Cassidy, Dr David McGrath and Dr Shane Maloney | Injury module: Spine, lower and upper limb
The claimant was involved in a motor accident in 2017; the Panel had determined in an earlier dispute (Gerling (No 1)) that the claimant injured her low back resulting in surgery; the parties had referred 24 treatment and care disputes, 22 of which related to claims for future treatment; the Panel had previously determined that the recency of the low back surgery meant that the condition had not stabilised and that the future treatment could not be determined at this stage; the claimant sought to “rephrase” the future treatment disputes and have the Panel determine these as past treatment disputes; Held- that application was opposed and rejected by the Panel as the amendment would create procedural unfairness; any amendment would cause further delay as the affected party would be entitled to adduce further evidence; the Panel determined the past dispute for domestic assistance making orders specifying varying degrees of assistance over the past four years; the amount of assistance was reduced due to previous findings that the claimant did not injure her shoulders or knees in the subject accident, and these were contributing to the loss; the claimant’s condition had improved substantially following surgery and an order made for modest assistance (3 hours per week) since that time based on the need to restrict heavy lifting such as cleaning and shopping
Decision date: 12 May 2022| Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Geoffrey Stubbs| Injury module: Spine
The claimant suffered injury in the motor accident; the claimant suffered soft tissue injury to the cervical spine, lumbar spine and both shoulders; pre-accident cervical pathology Held- soft tissue injury to the lumbar spine and right shoulder resolved; soft tissue injury to the left shoulder; in cervical spine the Panel found positive nerve root tension signs but unable to demonstrate two of the criteria for upper cervical radiculopathy; clause 5.8 of the Motor Accident Guidelines; soft tissue injury to the cervical spine; minor injury finding confirmed.
Decision date: 16 May 2022| Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Margaret Gibson | Injury module: Upper limb and spine
Mr Paul was involved in a motor accident in 2015 when he was riding a motor bike and struck head on by a vehicle travelling in the opposite direction; Mr Paul suffered a serious traumatic right hip dislocation and right acetabular fracture which caused traumatic loss of cartilage; he also suffered a fractured left scaphoid which failed to unite, a TFCC tear and tear of the membranous band of the scapholunate ligament; Mr Paul has undergone various surgical procedures on the left arm, including a medial femoral condyle flap from the left knee to the left wrist in an attempt to stabilise the united fracture; Held- the claimant suffered various scars to the left arm due to the surgical procedures and the left leg due to the translocation of the medial femoral condyle flap; the requirement for the left leg surgery and any consequent scarring is related to the motor accident: Hunter v Insurance Australia Ltd; pursuant to clause 1.263 of the Motor Accident Permanent Impairment Guidelines, the “total effect of the scarring on the organ system” must be assessed. Combined scarring assessed at 2% impairment; claimant reassessed at 15% permanent impairment which included assessments of the right lower limb (5%) and left upper limb (8%).
Decision date: 17 May 2022| Panel Members: Principal Member John Harris, Dr Rhys Gray and Dr Wing Chan| Injury module: Spine, upper and lower limb
The claimant suffered injury in a motor vehicle accident: injury to left shoulder, left chest wall, lumbar spine, cervical spine, right shoulder and left arm; dispute related to the assessment of permanent impairment; inconsistency of presentation; surveillance video; inconsistencies on examination; dispute as to recommended ultrasound guided corticosteroid injection of the left shoulder AC joint; Held- revoke certificate of Assessor Bodel; claimant exaggerated the extent of his disability to medical practitioners; diagnosis of acromioclavicular crepitus to left shoulder; inability to assess by range of motion due to inconsistencies; assessment of 3% whole person impairment (WPI) based on table 19 AMA 4 Guides due to crepitus; no injury to left upper limb; soft tissue injury to left chest wall, recovered; soft tissue injury to lumbar spine, recovered; soft tissue injury to cervical spine; 0% WPI cervical spine; no injury sustained to right shoulder; no provision in Motor Accidents Injuries Act 2017 to enable a dispute to be determined in respect of treatment “to be provided”; no power to determine dispute as to ultrasound guided corticosteroid injection of the left shoulder.
Decision date: 18 May 2022| Panel Members: Member Susan McTegg, Dr Geoffrey Stubbs and Dr Margaret Gibson | Injury module: Upper limb and spine
Workers Compensation Medical Appeal Panel Decisions
Allegation of incorrect criteria and demonstrable error in the first appeal; further worker’s appeal based upon the availability of additional relevant information (MRI scan post examination); Medical Assessor (MA) alleged to have failed to take into account relevant considerations with regard to activities of daily living and to have failed to apply required tests for radiculopathy with respect to lumbar spine injury; subsequent MRI scan said to support greater interference with activities of daily living and presence of radiculopathy; Held- assessment of activities of daily living was open on the evidence and in accordance with the appellant’s own independent medical expert; additional statement contradicting history recorded by the MA not admitted; although MA did not record measurement of musculature in the legs, he reported that there was no evidence of radiculopathy, detailing findings with respect to the three major criteria, none of which were present. It was therefore unnecessary to report findings with respect to muscle wasting when appellant’s own independent medical expert had not detected any asymmetry; the first appeal failed; the second appeal alleged that the report of an MRI scan taken after the MA’s examination provided additional relevant evidence warranting re-examination; the report appeared only to confirm earlier imaging and was not relevant to a fact in issue; the second appeal failed and the Medical Assessment Certificate was confirmed.
Decision date: 12 May 2022| Panel Members: Member William Dalley, Dr Drew Dixon and Dr Gregory McGroder |Body system: Lumbar spine and scarring
Appellant challenged the assessment as regards the manner in which the ma assessed the injuries to both knees; Respondent conceded errors in the Medical Assessor’s calculations but no other errors; Panel agreed; no demonstrable error as regards the assessment but the errors regarding the calculations needed to be rectified; Held- Medical Assessment Certificate revoked.
Decision date: 13 May 2022| Panel Members: Member Deborah Moore, Dr Roger Pillemer and Dr John Brian Stephenson |Body system: Lumbar spine, left and right lower extremity
Appeal from assessment of 9% whole person impairment (6% cervical spine; 3% right upper extremity; shoulder); whether evidence of conduct of examination admissible; whether assessor failed to have regard to statement evidence; whether assessor gave adequate reasons for a finding of no radiculopathy in the right upper extremity; whether he erred by failing to use a goniometer or inclinometer in measuring range of motion; whether he erred by failing to supply documentary evidence of his measurements; Held- appeal dismissed and Medical Assessment Certificate confirmed.
Decision date: 16 May 2022| Panel Members: Member Richard J Perrignon, Dr Mark Burns and Dr James Bodel |Body system: Cervical spine and right upper extremity (shoulder)
Cervical Spine assessment; appellant alleged error in the assessment by the Medical Assessor (MA) of the cervical spine as DRE Category I; Appeal Panel found error and appellant re-examined; the assessment of the Appeal Panel was DRE Category II of the cervical spine based upon the criteria in AMA 5 at Page 392, table 15-5 namely; clinical history compatible with a specific injury and asymmetric loss of range of motion; this equates to 5% whole person impairment; there is no allowable additional impairment for ADLs noting that the MA has given ADLs for the lumbar spine; there is no deductible proportion; Held- Medical Assessment Certificate revoked.
Decision date: 17 May 2022| Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder |Body system: Cervical and lumber spine, left and right upper extremity – elbow and digestive system – hernia
Appeal against a 1/3rd deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) had considered the wrong injury as a result of mistaking the terms of the referral; whether deduction permissible in asymptomatic cases; Held- asymptomatic cases can attract a deduction, Vitaz referred to; however by failing to follow the terms of the referral that the injury date was deemed, the MA made a demonstrable error, Cullen v Woodbrae Holdings Pty Ltd, Craigie v Faircloth & Reynolds referred to; MA did not consider whether appellant suffered from a pre-existing injury when he commenced with the employer 20 years earlier; MA relied on the appellant’s pre-existing condition as at the deemed date; Held- Medical Assessment Certificate revoked.
Decision date: 18 May 2022| Panel Members: Member John Wynyard, Dr Roger Pillemer and Dr Tommasino Mastroianni |Body system: Cervical and scarring
Industrial deafness; appellant alleged error in manner in which the Medical Assessor (MA) approached assessment in circumstances where there was a prior settlement and in failure to include losses below 3000Hz; the Appeal Panel found error; the whole of the impairment due to the injury needed to be assessed by him including considering the nature and duration of occupational noise exposure over about 46 years and the nature and extent of all the hearing losses without reference to any prior settlement entered into by the appellant; the appellant cannot be double compensated and any prior settlement would ultimately be deducted; however an MA is not to approach the assessment of the overall permanent impairment due to occupational noise exposure by using the prior settlement as the starting point for the assessment of the loss and merely assess further losses after that settlement to determine the total impairment; Held- Medical Assessment Certificate revoked.
Decision date: 18 May 2022| Panel Members: Member Jane Peacock, Dr Joseph Scoppa and Dr Brian Williams |Body system: Hearing loss
Matter involved assessment of permanent impairment from psychiatric injury; appellant worker submitted Medical Assessor erred by, firstly, obtaining a history inconsistent with the evidence and by not asking sufficient questions so as to obtain a correct history, secondly, not assessing his impairment in several of the PIRS categories the same as IMEs had assessed it to be, and thirdly, wrongly characterising his participation in video and online games and his browsing eBay; all of which he did alone, as being a social and recreational activity; Held- Appeal Panel rejected the first and second of those submissions, but accepted the third and found the Medical Assessment Certificate (MAC) contained a demonstrable error; MAC revoked.
Decision date: 18 May 2022| Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Patrick Morris |Body system: Psychiatric/psychological
Motor Accidents Merit Review Decision
Dispute about statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); self-employed claimant, calculation of pre-accident weekly earnings, pre-accident weekly earnings; schedule 1, clause 4 of the MAI Act; deduction of business expenses; application for dismissal of merit review which was lodged late; Held – the reviewable decision is affirmed; late application accepted, clause 7.35 of the Motor Accident Guidelines applied.
Decision date: 18 May 2022| Merit Reviewer: Michael Sofoulis
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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