Legal Bulletin No. 69
This bulletin was issued on 15 July 2022
Issued 15 July 2022
Welcome to the sixty-ninth 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 – Duty to give adequate reasons; Pollard v RRR Corporation 2 Pty Ltd, Soulemezis v Dudley (Holdings) Pty Ltd; alleged factual error; matters requiring expert medical evidence; Lithgow City Council v Jackson; estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd; section 4(b)(ii) of the Workers Compensation Act 1987 ‘main contributing factor’; AV v AW.
Decision date: 4 July 2022 | Before: Deputy President Michael Snell
Workers Compensation – Submissions made after the time period for doing so was closed; Bale v Mills applied; Member’s duty to provide reasons; rule 78 of the Personal Injury Commission Rules 2021; failure to consider submissions made; Dranichnikov v Minister for Immigration & Multicultural Affairs considered.
Decision date: 5 July 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 28 years of age; 24 years of age at date of accident; serious accident; cut out of vehicle; airlifted to hospital; sternum fracture; fractures of cervical (C) spine C3 spinous process, C6 facet joint; right pulmonary contusion; articular humerus fracture; fractured pelvis; acute kidney injury; deep vein thrombosis in right femoral vein; tachycardia; scarring; future hip replacement surgery; returned to work as engineer in mining industry; no current loss of income; able to live independently; no current treatment; claimant not wish to seek legal advice notwithstanding serious injury; Held – settlement approved in the sum of $586,784.19 including non-economic loss of $320,000; past economic loss of $66,784.19; buffer for future economic loss 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 80 years of age; serious accident; pedestrian; reduction 10% for contributory negligence; non-economic loss only; fractured ribs; degloving injury to right hand; crushed and broken fingers of right hand; amputation of right middle finger; scarring; triangular fibrocartilage complex (TFCC) injury to right wrist; psychological injury; living independently; difficulty using right hand; Held – settlement of claim for damages for non-economic loss approved in the sum of $200,000 after reduction of 10% for contributory negligence.
Decision date: 7 June 2022 | Member: Susan McTegg
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; injury occurred when lower leg pinned between gutter and motor vehicle; liability admitted; ruptured calf muscle; forklift driver; three months absence from work and further three weeks working 4 hours a day; returned to full time work as forklift driver; past and future economic loss only; Held – impairment of earning capacity;settlement approved in the sum of $123,000 including past economic loss of $23,000; buffer for future economic loss of $100,000; settlement just fair and reasonable and within the range of likely damages if claim proceeded to assessment; settlement approved.
Decision date: 24 June 2022 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Miscellaneous application seeking determination of the applicant’s liability to reimburse the Nominal Insurer the amount specified in a notice pursuant to section 145(1) of the Workers Compensation Act 1987; whether worker sustained a personal injury to his lumbar spine in a fall as alleged; contemporaneous record of lumbar symptoms but references to chronic back pain rather than traumatic injury; delay in a fall being identified as the cause of symptoms; degenerative pathology shown on radiological investigation; conflicting witness evidence; Held – applicant discharged evidentiary onus of disproving that the personal injury in respect of which compensation paid occurred; not appropriate to determine alternative causes of worker’s incapacity or need for treatment, including whether there was a disease injury to the lumbar spine; applicant not liable to reimburse the Nominal Insurer.
Decision date: 30 June 2022 | Member: Rachel Homan
Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to psychological injury agreed to have been sustained in the course of employment with the respondent; issue as to whether the respondent had a defence under section 11A of the 1987 Act in relation to discipline and the provision of employment benefits; Held – respondent has not established a defence under section 11A; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment in relation to the psychological injury.
Decision date: 30 June 2022 | Principal Member: Josephine Bamber
Claims for personal injuries to neck and back and disease injuries to neck and back; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act);consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, wage material, and factual material; consideration of whether the applicant sustained a personal injury pursuant to sections 4(a) and 9A of the 1987 Act; Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia, Zickar v MGH Plastic Industries Pty Ltd, Dayton v Coles Supermarkets Pty Ltd considered; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b)(ii) of the 1987 Act;Federal Broom Co Pty Ltd v Semlitch and Cant v Catholic Schools Office considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Actand ‘suitable employment’ under section 32A of the1987 Act; Wollongong Nursing Home Pty Limited v Dewar and ACW v ACX considered; Held – applicant has sustained a personal injury pursuant to section 4(a) of the 1987 Act to his cervical and lumbar spines arising out of or in the course of his employment with the respondent on 17 April 2020; his employment with the respondent was a substantial contributing factor to the personal injury; applicant has also sustained a 'disease injury' pursuant to section 4(b)(ii) of the 1987 Act, being the aggravation, acceleration, exacerbation or deterioration of his cervical and lumbar spine degenerative disease in the course of his employment with the respondent; applicant has no current work capacity; ongoing award for the applicant pursuant to section 37(1) of the 1987 Act; award that the respondent pay the applicant’s treatment expenses pursuant to section 60 of the1987 Act.
Decision date: 1 July 2022 | Member: Gaius Whiffin
Claim for cost of proposed right shoulder arthroscopy; consideration of medical opinion; consideration of Rose v Health Commission (NSW) and Margaroff v Cordon Blue Cookware Pty Ltd; Held – proposed surgery is reasonably necessary.
Decision date: 1 July 2022 | Member: Michael Wright
Claim for permanent impairment compensation; left upper extremity (shoulder, elbow and ulnar nerve) injury and scarring accepted and the subject of referral to Medical Assessor (MA); claim in respect of cervical spine injury disputed; Held – the applicant has the onus of proving he suffered a cervical spine injury; University of New South Wales v Brooks applied; it is necessary to establish not only an injurious event but also a demonstrable pathological change to the allegedly affected body part or system; Castro v State Transit Authority (NSW) and Trustees of the Society of Saint Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear followed; the applicant suffered neck symptoms; however, it is necessary to determine whether, on a common sense basis an injury within the meaning of section 4 of the Workers Compensation Act 1987 to that body part has caused the symptoms complained of; Kooragang Cement Pty Ltd v Bates referred to; in this matter the applicant’s treating specialists noted his symptoms could have been as a result of an upper extremity injury or a cervical injury; they accordingly ordered a cervical magnetic resonance imaging (MRI) to determine whether there was any pathology present; that MRI was reported on by all doctors who saw it as showing no abnormality; on balance, the treating and Independent Medical Examiner medical evidence does not establish the presence of a cervical spine injury; award for the respondent on the claim for cervical spine injury; balance of matter remitted to the President for referral to a MA to determine whole person impairment.
Decision date: 4 July 2022 | Member: Cameron Burge
Claim for the cost of surgery to the right shoulder; relying on injury to that shoulder as a result of the ‘nature and conditions’ of the applicant’s employment as an assistant in nursing in the respondent’s aged care nursing home over many years; and also as a result of a condition in the right shoulder consequent upon undisputed injury to the left shoulder; Held – the applicant did suffer injury to the right shoulder as a result of the ‘nature and conditions’ of her employment by the respondent; and also a condition in the right shoulder consequent upon the left shoulder injury; finding that the right shoulder surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of both the injury to the right shoulder and consequential condition therein; the respondent ordered to pay for the costs of and incidental to such surgery pursuant to section 60 of the Workers Compensation Act 1987.
Decision date: 4 July 2022 | Member: Brett Batchelor
Application pursuant to section 57(1) of the Personal Injury Commission Act 2020;to reconsider and rescind Certificate of Determination (CoD) dated 17 November 2016; to permit appeal against Medical Assessment Certificate (MAC) dated 4 August 2016; pursuant to sections 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum for psychological injury; MAC assessed 8% whole person impairment (WPI); issue of deterioration resulting in increased WPI considered with respect to the Psychiatric Impairment Rating Scale areas of functional impairment and change in classes; consideration of Ballas v Department of Education (State of NSW) and arguable ground of appeal; Held – arguable ground of appeal; application granted, CoD rescinded; referred to Medical Assessor for further assessment as an alternative to appeal pursuant to section 329(1)(a) of the 1998 Act.
Decision date: 5 July 2022 | Member: Michael Wright
Determination of dependency and apportionment of death benefit pursuant to section 29 of the Workers Compensation Act 1987; claim for interest on lump sum pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd, Burragong Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Ltd; consideration of when claim “duly made”; Held – the applicant was partly dependent for support on the deceased worker; there were no other persons dependent on the worker; claim was not duly made until further evidence was provided after the telephone conference; no order for interest on the lump sum.
Decision date: 5 July 2022 | Senior Member: Kerry Haddock
Application for section 60(5) of the Workers Compensation Act 1987 declaration that surgery had been reasonably necessary; worker suffered admitted back injury in 2010 but experience with insurer rehabilitation made her reluctant to claim for further back issues; 2017 flareup caused referral to specialist; significant pathology found on investigations but flare up had settled; further aggravation caused by checkout duties during panic buying when COVID-19 pandemic struck in 2020; same significant lumbar spinal pathology present on further investigation; worker suffered from communicating hydrocephalus since teenage years when brain shunt inserted; suffered symptoms from time to time as a result; investigated at John Hunter Neurology as to implication on proposed surgery which followed a week or so later; whether lumbar spine condition main contributing factor to need for surgery; Held – Dr Miniter for respondent expressly discounted relationship between ventricular shunt and lumbar spine condition and nature and conditions of employment found to be main contributing factor; respondent liable for costs of surgery.
Decision date: 6 July 2022 | Member: John Wynyard
Claim for lump sum compensation, weekly benefits and medical expenses in respect of a psychological injury due to a series of stressful and traumatic events over the course of the applicant’s employment; separate claims for compensation made for frank injuries in relation to two workplace events; non-disclosure of significant personal stressors and psychological treatment; lack of specificity as to other traumatic workplace events; contradictions in the histories provided to various medical experts; consideration of weight to be given to expert evidence; whether employment the main contributing factor to the contraction of an injury as alleged; Held – Personal Injury Commission not satisfied that a series of workplace events was the main contributing factor to the contraction of a psychological injury as alleged; award for the respondent.
Decision date: 6 July 2022 | Member: Rachel Homan
The applicant claims weekly compensation payable under sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) and medical and related treatment expenses payable under section 60 of the 1987 Actresulting from psychological injury sustained in the course of his employment with the respondent; the respondent raised defence under section 11A(1) of the 1987 Act; the respondent argued the applicant had no entitlement to compensation as the injury he had sustained was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; Held – the psychological injury the applicant sustained in the course of his employment with the respondent was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline; the applicant has an entitlement to weekly benefits payable under sections 36 and 37 of the 1987 Act; the applicant has an entitlement to medical and related treatment expenses payable under section 60 of the 1987 Act.
Decision date: 6 July 2022 | Member: Jacqueline Snell
Workers Compensation President’s Delegate Decision
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker suffered a back injury that led to a microdiscectomy and fusion; currently working in suitable duties with the respondent; whether worker could work as a call centre operator; consideration of weight to be given to applicant’s vocational report; Held – applicant had not met his onus; interim payment direction declined.
Decision date: 1 July 2022 | President’s Delegate: Parnel McAdam
Motor Accidents Medical Review Panel Decisions
The claimant suffered serious injury in a motor vehicle accident; the dispute is related to the assessment of permanent impairment; injuries referred for assessment were scarring to right hip following revisionary hip replacement surgery; degloving injury to both thumbs; Held –the subject of the injuries referred for assessment to Medical Assessor Giles was in his capacity as a plastic surgeon;the claimant did not sustain a degloving injury to either thumb; no scarring to either thumb; right hip scarring assessed under table 18 of the Permanent Impairment Guides using the principle of best fit at 2% whole person impairment; new combined impairment certificate issued certifying a combined permanent impairment of 12%.
Decision date: 20 June 2022 | Panel Members: Member Susan McTegg, Medical Assessors Geoffrey (Paul) Curtin and Geoffrey Stubbs | Injury Module: Upper Limb
Assessment of minor and non-minor injuries; car versus pushbike accident on the footpath; claimant’s injuries include right shoulder rotator cuff tear, lumbar spine soft tissue injury, left knee soft tissue injury; radiological evidence of left knee inconclusive about any tear of a tendon, ligament or cartilage; Held – original assessment that shoulder injury was minor revoked and new decision that the claimant suffered a non-minor injury to her right shoulder following a rotator cuff tear causally related to the accident.
Decision date: 29 June 2022 | Panel Members: Member Alexander Bolton, Medical Assessors Margaret Gibson and Clive Kenna | Injury module: Upper Limb, Lower Limb and Spine
Workers Compensation Medical Appeal Panel Decisions
Injury referred lumbar spine, thoracic spine (station and gait) and urinary system; the worker appealed against the assessment of the thoracic spine (station and gait) alleging demonstrable error and use of incorrect criteria; Lead Assessor (neurologist) assessed 0% whole person impairment (WPI) in respect of thoracic spine (station and gait) as the nature and extent of impairment observed on examination could not be said to result from the subject injury in the absence of any observable/demonstrable pathology; the insurer appealed against the assessment of the Non-Lead Assessor who assessed 41% WPI in respect of the urinary system (bladder) as the findings of the Lead Assessor were incompatible with the diagnosis of the Non-Lead Assessor of neurogenic bladder leading to error in the combined Medical Assessment Certificate (MAC); Held – the Lead Assessor had used language which could be understood as indicating a finding that there had been no injury which could be termed “thoracic spine (station and gait)” and to that extent error was made out however, the Lead Assessor had correctly assessed the worker; the Panel accepted that terms of the referral indicated a neurological condition; the impairment of station and gait exhibited by the worker required demonstrable injury to the spinal cord apparent on electromyography (EMG) and other testing; Magnetic Resonance Imaging scans and subsequent EMG testing was normal; the impairments to station and gait exhibited by the worker could not be attributed to the subject accident; with respect to the insurer’s appeal the Panel was satisfied that the diagnosis of neurogenic bladder was appropriately made; the Non-Lead Assessor recognised that the condition did not arise from damage to the spinal cord or thoracic spine but was likely consequential upon the subject injury leading to the worker self-catheterising following the subject accident; combined MAC confirmed.
Decision date: 14 June 2022 | Panel Members: Member William Dalley, Medical Assessors Ross Mellick and Michael Rochford | Body system: Urinary and Reproductive Systems and Spine
The appellant worker alleged error with respect to the deduction of one half of the assessed assessment of impairment found to have arisen from a pre-existing psychological condition; appellant submitted no evidence of pre-existing condition; Held – after seeking further submissions as to the appropriate date at which to consider the existence of a pre-existing condition the Panel accepted that this date was the date of commencement of employment; a report of the treating psychiatrist established the existence of a pre-existing condition and assessment of deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was open to the Medical Assessor and appropriate; Medical Assessment Certificate confirmed.
Decision date: 6 July 2022 | Panel Members: Member William Dalley, Medical Assessors Nicholas Glozier and Michael Hong | Body system: Psychological and Psychiatric Disorder
Noise induced hearing loss; inclusion of loss at low frequencies; extent of Medical Assessor’s reasons; section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for period of National Service; Pereira v Siemens Limited discussed; Medical Appeal Certificate confirmed.
Decision date: 6 July 2022 | Panel Members: Member Catherine McDonald, Medical Assessors Henley Harrison and Robert Payten | Body system: Hearing
Motor Accident Merit Review Decision
Merit review; application made by insurer under schedule 2, clause 1(x) of the Motor Accident Injuries Act 2017 (2017 Act); whether for the purpose of section 6.24 of the 2017 Act a request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply; the request was for the claimant to attend a medical examination; psychometric evaluation; application misconceived; Held – the Personal Injury Commission has no jurisdiction to determine the application.
Decision date: 23 June 2022 | Merit Reviewer: Maurice Castagnet
Legislative Amendments and Related Updates
The Motor Accident and Workers Compensation Amendment Act 2022 (Act) received assent on 16 June 2022. The Act introduces several amendments to the motor accidents and workers compensation enabling legislation, as well as the Personal Injury Commission Act 2020. Here is a brief summary of some relevant amendments to each Division:
Motor Accidents Division
- Clarifies the statutory benefits payable by the relevant insurer, including where the insurer of an at-fault motor vehicle is not a licensed insurer.
- Changes to the way weekly payments of compensation are calculated, to consider a claimant’s pre-accident weekly earnings received or expected to receive in the 12 months before the motor accident and also post-accident earnings.
- Changes to the terminology concerning earnings and earning capacity for persons residing outside Australia.
- Clarifies several of the no-fault accident provisions.
- Provides that a notice of claim must be given in the form approved by the Authority, instead of the form specified in the Motor Accident Guidelines.
- Enables merit reviewers to assess the claimant’s costs, including costs for legal services and fees for medico-legal services.
Workers Compensation Division
- Provides that if the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant, the employer must pay additional compensation fees for the investing or otherwise managing that benefit, as prescribed by the regulations. This amendment will commence on proclamation.
- Gives the insurer power to determine an entitlement to weekly compensation for an overseas worker, before requiring a determination by the Commission.
As a consequence of the amendments that enable merit reviewers to assess costs, Procedural Direction – MA2 – Merit review has been updated.
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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