Legal Bulletin No. 65
This bulletin was issued on 17 June 2022
Issued 17 June 2022
Welcome to the sixty-fifth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Section 11(1) of the Workers Compensation Act 1987 (the 1987 Act); reasonable action with respect to discipline; Commissioner of Police v Minahan; having regard not only to the end result but to the manner in which disciplinary action was effected; Jeffery v Lintipal Pty Ltd; test of reasonableness is objective; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services; employer confined to matters raised in dispute notices; sections 22 and 22A of the 1987 Act; apportionment; reasons; NSW Police Force v Newby.
Decision date: 7 June 2022 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Allegation of soft tissue injuries to the spine; Medical Assessment Service Report (MAS) determinations of a treatment dispute and of a Whole Person Impairment dispute; competing reports of occupational therapists; consideration of case law on balance of probabilities; Claimant considered a credible witness; finding on the balance of probabilities that the Claimant continues to suffer chronic pain; diagnosis of Major Depressive Episode on a background of chronic pain; buffer of $15,000 for future treatment including chronic pain management; consideration of case law on future economic loss; Medlin v State Government Insurance Commission; IAG Ltd t/as NRMA Insurance v Damian Mares; Dal v Chol; Allianz Australia Insurance Ltd v Kerr; section 126 Motor Accidents Compensation Act 1999 assumptions; authorities on buffer for future economic loss; Penrith City Council v Parks; Allianz Australia Insurance Limited v Kerr; past gratuitous care; no award made; future commercial domestic assessments; consideration of Insurance Australia Ltd t/as NRMA Insurance v Scott; finding that NRMA Insurance v Scott extends to commercial domestic care; no provision made for future commercial domestic assistance; total of damages assessed $235,603.65.
Decision date: 14 April 2022 | Member: Terence Stern
Section 4.4 Motor Accidents Injuries Act 2017; minor injury; application for assessment of damages made before medical dispute regarding minor injury assessed; no entitlement to damages once minor injury confirmed; dismissal of application to assess damages; Commission has no jurisdiction to make a decision regarding damages; dismissed under section 54 of the Personal Injury Commission Act 2020 andrule 77(b)(iv) Personal Injury Commission Rules 2021; Held- application to assess damages dismissed.
Decision date: 30 May 2022 | Member: Terence O'Riain
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 62 years of age; serious accident; non-economic loss only; fracture of C2 (hangman’s fracture); fracture right transverse process C7; fracture right transverse process T1; fractured ribs; strain lumbar spine; fracture transfers process at L2/3 and L4; right haemothorax; subcutaneous emphysema right chest wall; right knee pain; psychological symptoms (largely resolved); constant pain neck, back and both legs; easily tired; no longer able to care for grandchildren 5 days a week; Held– settlement of claim for damages for non-economic loss approved in the sum of $200,000.
Decision date: 3 June 2022 | Member: Susan McTegg
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 69 years of age; serious accident; passenger; non-economic loss only; fracture of T12, L1 and L2; psychological injury; can drive for 2.5 hours; adjustments made to do household chores; Held– settlement of claim for damages for non-economic loss in the sum of $220,000 just, fair and reasonable and within the range of likely potential damages assessments; settlement approved.
Decision date: 8 June 2022 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Claim for benefits in respect of death of a worker; matter remitted on appeal for re-determination of issues as to whether injury arose out of or in the course of employment; whether employment was a substantial contributing factor to injury; apportionment; and interest; first respondent withdrew liability dispute; apportionment agreed between applicant, second respondent and third respondent; consideration of Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd; Pheeney v Doolan (No 2); Bennett v Jones; Kaur v Thales Underwater Systems Pty Ltd; Zhang v Universe Investments Pty Ltd t/as Kings Seafoods; Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited; Held- lump sum benefit apportioned in accordance with agreement between applicant, second respondent and third respondent; award of interest on lump sum of $810,050 from 6 March 2020; when liability disputed but no dispute as to dependency; to 31 May 2022 at the rate of 2.1% per annum; lump sum benefit and interest payable to second and third respondents to be paid to NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the Workers Compensation Act 1987 until they attain the age of 18 years.
Decision date: 2 June 2022 | Senior Member: Kerry Haddock
Apportionment of lump sum death benefit pursuant to section 25 Workers Compensation Act 19 87.
Decision date: 2 June 2022 | Principal Member: Josephine Bamber
Claim for weekly compensation in respect of alleged psychological injury; injury pleaded as aggravation of underlying condition; respondent alleges cause of aggravation multi-factorial and that applicant not totally incapacitated as alleged; Held- In matters where an injury is pleaded by way of an aggravation or exacerbation, the relevant test is whether the employment is the main contributing factor to the aggravation or exacerbation, not to the underlying condition; Federal Broom Co Pty Ltd v Semlitch; Kelly v Western Institute NSW TAFE Commission; Ariton Mitic v Rail Corporation of; Meaney v Office of Environments and Heritage - National Parks and Wildlife at - followed; the meaning of “Main contributing factor” is “principal” or “primary”, and there can be but one main contributing factor”; AV v AW applied; in this matter, there is no issue the applicant suffered a pre-existing psychological condition; nor is there any issue she had endured a number of non-work-related stressors; however, despite those stressors she was able to carry out full time employment with the respondent until her workplace problems with her former manager culminated in her leaving work; the evidence, in particular contemporaneous file notes from human resources, demonstrates the applicant’s former manager acknowledged the alleged issues in the work place and that he had not acted appropriately towards the applicant; a common sense evaluation of the lay and medical evidence supports a finding the applicant’s employment with the respondent was the main contributing factor to the aggravation of her pre-existing condition which in turn led to her absence from work; Kooragang Cement Pty Ltd v Bates referred to; the balance of the evidence also discloses the applicant remains totally incapacitated for employment; even though the respondent demonstrated that from time to time the applicant attended a local store and also went to her own birthday celebration, in my view that evidence does not equate to a capacity for employment; the applicant was cross examined at length as to her capacity, and her evidence as to her ongoing problems with employment is accepted as that of a witness of truth; respondent ordered to pay the applicant weekly compensation as claimed.
Decision date: 2 June 2022 | Member: Cameron Burge
The applicant claims weekly compensation for a closed period and the costs associated with proposed surgical treatment in the nature of C4-5 Anterior Cervical Decompression and Fusion, resulting from injury sustained to the cervical spine on 9 September 2020 in the course of his employment with the respondent; the respondent disputes the applicant suffers an incapacity for work resulting from his neck injury and the respondent disputes the proposed surgical treatment is reasonably necessary treatment for his neck injury; Held- the applicant had no current work capacity during the closed period claimed resulting from the injury he sustained to his neck and the applicant has an entitlement to weekly compensation payable under section 37(1) of the Workers Compensation Act 1987 (the 1987 Act) during that period; the proposed surgical treatment is reasonably necessary treatment for the injury the applicant sustained to his neck and the costs associated with this surgical treatment are payable under section 60 of the 1987 Act.
Decision date: 3 June 2022 | Member: Jacqueline Snell
Claim for right hip replacement surgery; respondent alleges applicant did not suffer a work-related injury to his right hip; Medical requirement for surgery not in issue; Held- the applicant suffered an injury to his right hip in the course of his employment with the respondent; Castro v State Transit Authority (NSW), Zickar v MGH Plastic Industries Pty Ltd followed; the preponderance of the medical evidence supports a finding of such injury, particularly the evidence of the treating doctors who noted the similarity between symptoms in the lumbar spine and in the hip; the fact the applicant’s doctors focused on his symptoms arising from a lumbar spine injury does not preclude the presence of a right hip injury; the applicant’s pattern of complaint and symptoms regarding his hip have been consistent since the date of injury, and there is no suggestion he suffered any hip symptoms before the injury at issue; the requirement for the proposed surgery results from the workplace injury; Jenkins v The State of Tasmania and Taxis Combined Services (Victoria) Pty Ltd v Schokman discussed and followed; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 3 June 2022 | Member: Cameron Burge
Claim for weekly compensation in respect of alleged primary psychological injury due to bullying and harassment following return to work after a physical injury; liability for physical injury and a secondary psychological condition accepted; whether there is a separate primary psychological injury; whether there is separate incapacity resulting from a primary psychological injury; appropriate orders where applicant remains in receipt of weekly compensation in respect of the physical injury; whether there is a discretion to reduce weekly payments to avoid payment of dual benefits; Held- Applicant sustained a primary psychological injury; applicant had no current work capacity in respect of the primary psychological injury; incapacity is the same incapacity as that which has resulted from the physical injury; discretion in section 46 of the Workers Compensation Act 1987 exercised to reduce entitlement to weekly compensation pursuant to sections 36 and 37 by the amount already paid pursuant to section 37 in respect of the physical injury.
Decision date: 3 June 2022 | Member: Rachel Homan
Claims for injuries to pelvis, lower back and psychological condition; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act);consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the Personal Injury Commission would be exercising federal jurisdiction if it determined the applicant’s dispute; Australasian Temperance and General Mutual Life Assurance Society Limited v Howe; ABF v Allianz Australia Insurance Limited; ABG v Allianz Australia Insurance Limited; Ritson v State of New South Wales; Crouch v Commissioner for Railways (Qld); Annalysse Shantel Stanton v Jasmine Winning; Deputy Federal Commissioner of Taxation v State Bank of NSW; section 75 (iv) of the Commonwealth of Australia Constitution Act 1900; section 4 of the NSW Self Insurance Corporation Act 2004; section 42 of the Personal Injury Commission Act 2020 considered; consideration of whether the applicant sustained a primary psychological injury pursuant to sections 4 and 9A of the1987 Act; Dayton v Coles Supermarkets Pty Ltd; NSW Police Force v Gurnhill; Inman v NSW Police Force considered; consideration of whether the applicant correctly claimed compensation in relation to her primary psychological injury and in relation to her weekly compensation, pursuant to section 260 of the 1987 Act; Fletcher International Exports Pty Limited v Barrow & Anor, Rinker Group Limited v Mackell; Tan v National Australia Bank Limited considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the1987 Act; Wollongong Nursing Home Pty Limited v Dewar considered; Held– opinion provided that the Commission is not exercising federal jurisdiction in determining this dispute; applicant sustained a personal psychological injury arising out of or in the course of her employment with the respondent; applicant’s employment with the respondent was a substantial contributing factor to the personal psychological injury; applicant has correctly claimed compensation in relation to her primary psychological injury and in relation to her weekly compensation; applicant has no current work capacity; ongoing award for the applicant pursuant to section 37 of the 1987 Act; award that the respondent pay the applicant’s treatment expenses pursuant to section 60 of the1987 Act.
Decision date: 7 June 2022 | Member: Gaius Whiffin
Claims for injuries to right elbow/hand/thumb; consideration of wage material, factual material, medical reports and other treatment records; consideration of respondent’s pre-injury average weekly earnings (PIAWE) calculations and the effect of clauses 8A (2) and 8C of the Workers Compensation Regulation 2016; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the Workers Compensation Act 1987 (the 1987 Act)and ‘suitable employment’ under section 32A of the1987 Act; Wollongong Nursing Home Pty Limited v Dewar considered; consideration of the jurisdiction of the Personal Injury Commission to determine claims under section 38 of the 1987 Act; Roberts v University of Sydney; Dickson v Zurich Financial Services Australia Limited; Mazzocchi v Unitrans Asia Pacific Pty Limited; Chea v Woolworths Group Limited; Lee v Bunnings Group Limited; and Sabanayagam v St George Bank Limited considered; Held– the Commission has jurisdiction to determine claims pursuant to section 38 of the1987 Act; applicant’s current work capacity assessed as equivalent to 20 hours per week pursuant to the Fair Work Act 2009 (Cth) minimum wage; PIAWE assessed at $622.68; awards for the applicant pursuant to sections 36 and 37 of the 1987 Act; award for the respondent in relation to the applicant’s claim pursuant to section 38 of the1987 Act.
Decision date: 7 June 2022 | Member: Gaius Whiffin
Claim for weekly compensation and section 60 of the Workers Compensation Act 1987 expenses for costs of proposed high tibial osteotomy; left knee injury accepted and prior medial meniscectomy; ongoing effects of injury disputed; whether proposed surgery reasonably necessary as a result of injury; Held- surgery proposed is reasonably necessary as a result of injury; respondent to pay the costs of and incidental to surgery; parties ordered to file consent orders or notice of discontinuance in respect of claim for weekly compensation.
Decision date: 8 June 2022 | Member: Rachel Homan
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
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; medical review in relation to dispute about treatment and care; issues about whether treatment related to the injuries caused by the accident and whether the treatment was reasonable and necessary; treatment modalities including GP, specialist and physiotherapy consultations, imaging studies, medication and care from the date of accident and for the remainder of the claimant’ life; three areas of the body allegedly injured (neck, back and right shoulder); past and future treatment claimed; Held- Claimant injured neck and back in the accident and shoulder problems related to the neck; past treatment incurred to the date of the assessment allowed no treatment allowed in the future; claimant had made good recovery and had not had much in the way of treatment for more than two years; no matter of principle.
Decision date: 31 May 2022 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Shane Maloney | Injury module: Treatment and Care
The claimant suffered serious injury in a motor bike accident; the dispute related to the assessment of permanent impairment; whether accident caused atrial fibrillation or the development of chronic thromboembolic pulmonary hypertension; pre-existing history of atrial fibrillation; pre-existing history of pulmonary embolic disease; assessment of whole person impairment; Motor Accident Compensation Act 1999; question of causation of condition; Held– pre-existingatrial fibrillation temporarily affected by accident; injury to chest and immobilisation in hospital led to development of thrombi which travelled to the right atrium of the heard and via the pulmonary artery into the lungs to result in pulmonary embolism; acute left sided pulmonary embolism and pulmonary arterial hypertension causally related to the accident; assessment of whole person impairment under Respiratory System chapter 5 of American Medical Association AMA 4 Guides using pulmonary function tests; Whole Person Impairment (WPI) assessed at 40%; pre-existing condition assessed at 15%; allowance of 3% for the effects of treatment; total WPI 27%; combined certificate issued for 30% WPI.
Decision date: 8 June 2022| Panel Members: Member Susan McTegg, Dr ChristopherGrainge and Dr Wing Chan | Injury module: Lungs and Ribs
Workers Compensation Medical Appeal Panel Decisions
Psychological injury; use of diagnosis in the assessment of permanent impairment; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 paragraphs 11.4 and 11.6; application of the Psychiatric impairment rating scale (PIRS); Jenkins v Ambulance Service of NSW; Ferguson v State of NSW; Parker v Select Civil Pty Ltd; MAP confirmed.
Decision date: 7 June 2022| Panel Members: Member Catherine McDonald, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal from assessment of 23% whole person impairment (6% cervical spine; 0% thoracic spine; 5% lumbar spine; 9% left upper extremity; 6% right upper extremity) as a result of injury on 31 January 2018 (deemed date) due to the nature and conditions of employment from 1987; frank injuries to the neck and back in 1994 and to the left elbow in 1997 were separately assessed under the Table of Disabilities; whether assessor erred in failing to make a deduction for the effects of those frank inures when assessing whole person impairment as a result of injury on 31 January 2018 (deemed date); Medical Assessment Certificate confirmed.
Decision date: 8 June 2022| Panel Members: Member R J Perrignon, Dr Roger Pillemer and Dr John Brian Stephenson | Body system: Spine and Upper Extremity
Motor Accidents Merit Review Decisions
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (the 2017 Act); pre-accident weekly earnings; meaning of PAWE; schedule 1 clause 4(1) of the 2017 Act; COVID-19 lockdown; interruption to earnings; projected earnings; COVID-19 disaster payments; earnings as an earner; insufficient documents; section 6.24 of the 2017 Act – the reviewable decision is set aside.
Decision date: 3 June 2022| Merit Reviewer: Katherine Ruschen
Dispute about statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the 2017 Act); sections 3.6 and 3.7 of the 2017 Act; whether there was a partial or total loss of earnings pursuant to sections 3.6 and 3.7 of the 2017 Act; schedule 1 clause 3 of the 2017 Act; whether there was a loss of earnings pursuant to schedule 1 clause 3 of the 2017 Act; Held– the reviewable decision is affirmed.
Decision date: 6 June 2022| Merit Reviewer: Kriesen Seeneevassen
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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