Legal Bulletin No. 73
This bulletin was issued on 12 August 2022
Issued 12 August 2022
Welcome to the seventy-third 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 – failure to bring to the attention of the parties an intention to determine a matter on the basis of an issue not raised – Seltsam Pty Ltd v Ghaleb  NSWCA 208; Inghams Enterprises Pty Ltd v Jones  NSWWCCPD 17; Toll Pty Ltd 2 v Morrissey  NSWCA 197; Stead v State Government Insurance Commission  HCA 54 applied.
Decision date: 19 July 2022| Presidential member: Elizabeth Wood
WORKERS COMPENSATION – reconsideration application – section 57 of the Personal Injury Commission Act 2020 – Samuel v Sebel Furniture Limited  NSWWCCPD 141; 5 DDCR 482 discussed and applied – held that the appropriate remedy that should be sought should be 2 under section 353 of the Workplace Injury Management and Workers Compensation Act 1998 instead of a reconsideration application.
Decision date: 27 July 2022| Presidential member: Geoffrey Parker SC
WORKERS COMPENSATION – section 4(b) of the Workers Compensation Act 1987 – failure to discharge the onus of proof to establish injury – Department of Education and Training v Ireland  NSWWCCPD 134 applied – approach to contemporaneous documents - Onassis and Calogeropoulos v Vergottis  2 Lloyd’s Rep 403 and ET-China.com International 2 Holdings Ltd v Cheung  NSWCA 24 considered.
Decision date: 27 July 2022| Presidential Judge: Gerard Phillips
WORKERS COMPENSATION – procedural fairness – Victims Compensation Fund Corporation v Nguyen  NSWCA 264; Allesch v Maun  HCA 40; Coldham; Ex Parte Municipal Officers Association of Australia  HCA 13 applied – determinations of fact – principles applicable – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; 2 Najdovski v Crnojlovic  NSWCA 175; Raulston v Toll Pty Ltd  NSWWCCPD 25 – applied.
Decision date: 3 August 2022| Presidential member: Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Late claim; full and satisfactory explanation; section 6.13 of the Motor Accident Injuries Act 2017; the claimant sustained injury in a rear end collision on 17 April 2021; the Application for personal injury benefits was received by the insurer on 2 February 2021; whether the claimant had provided a full and satisfactory explanation for the failure to make the claim within 3 months of the accident; Held – the claimant’s explanation was not full; the claimant had not provided a full account of her conduct including her actions; knowledge and belief from date of accident until date provided explanation on 11 February 2022; where explanation not full cannot be satisfactory.
Decision date: 1 July 2022| Member: Susan McTegg
Approval of damages settlement under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; claimant suffered injuries to his left thumb, neck, back and shoulder in an accident on 3 September 2019; off work for two months; light duties and return to full pre-injury duties as a chef in October 2019; left thumb injury resolved; occasional symptoms in neck, back and shoulder; four years until retirement; claimant received weekly payments of statutory benefits; Held — weekly benefits are not to be deducted from proposed settlement, which includes an allowance for tax paid on weekly benefits; proposed settlement of $12,000 approved; no deductions to be made to settlement sum.
Decision date: 6 July 2022| Member: Brett Williams
Damages claim; liability wholly admitted; claim for non-economic loss only; Claimant is male in his late 70s; accident was head on collision causing life-threatening injuries including abdominal perforations, thoracic fractures, lacerations and bruising; claimant developed delirium and was hospitalised for three months; multiple surgeries; claimant’s ability to care for himself impacted; various scars due to injuries and surgery caused distress; ongoing post-traumatic stress disorder; Held — amount of damages $300,000 plus costs.
Decision date: 16 July 2021| Member: Belinda Cassidy
Damages claim – approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; claimant sustained compound fracture to right tibia when crushed between two cars while guiding a van into a parking space; insurer alleged 25% contributory negligence for placing herself in a position of danger; insurer conceded non-economic loss damages; claimant is a psychiatric registrar in United Kingdom hospital system and injured whilst on holidays; career put back by one year; allowances made for past and future loss of earnings and earning capacity on basis claimant could do full time work but no on-call overtime work; insurer allowed losses to mid-2027 only on basis she injuries would have recovered and she could find a job that suited her injuries and disabilities; medico-legal evidence provided by insurer about current situation but limited evidence as to future prognosis; claimant said treating doctors in UK advised she may develop arthritis and may come to a knee replacement; Held — settlement offer not approved; non-economic loss well below the range and issues with past and future economic losses.
Decision date: 29 July 2022| Member: Belinda Cassidy
Application for settlement approval; claimant not legally represented; claimant injured on 24 October 2019; claimant injured when insured driver reversed vehicle over his foot; breach of duty of care admitted by the insurer; claimant suffered a fractured right medial malleolar requiring open reduction and internal fixation; claimant ambulated with crutches for 3 months and off work for 6 months then had a graduated return to work and commenced working full time in late 2020; claimant working with a partner in a stock feed delivery business; insurer offered to settle for $215,000 all-inclusive consisting of past statutory benefits of $65,000 including Fox v Wood allowance and $150,000 for future economic loss; Held — settlement approved.
Decision date: 29 July 2022| Member: Alexander Bolton
Miscellaneous claims assessment; 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; where the claimant’s vehicle entered into a roundabout and collided with the insured vehicle; claimant failed to keep a proper lookout; Held — claimant wholly at fault for the motor accident.
Decision date: 2 August 2022| Member: Maurice Castagnet
Assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act 2017; non-economic loss, past and future loss of earnings assessed; claimant’s credit in issue; Morvatjou v Mordadkhani; Medlin v State Government Insurance Commission; Husher v Husher; Graham v Baker; Kallouf v Middis; Penrith City Council v Parks considered and applied; Held — claimant’s damages are to be reduced by 30% on account of his contributory negligence.
Decision date: 3 August 2022| Member: Anthony Scarcella
Claimant injured in motor accident at 3 April 2021; claimant suffered a right femoral comminuted fracture, left 4-7and right 6-8 rib fractures, right knee injury and a left shoulder injury; claim for statutory benefits made; insurer accepted liability for claim; claimant moved to The Netherlands; insurer ceased making weekly payments on the basis that he resided outside Australia; application of section 3.21 of the Motor Accident Injuries Act 2017 (the 2017 Act); where provision amended while the proceedings were on foot by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022; consideration of transitional provisions; whether the claimant has a loss of earning capacity that is likely to be of a permanent nature Held – the amendments to section 3.21 of the 2017 Act apply to these proceedings; the claimant’s loss of capacity as a result of injuries he sustained in the accident is likely to be of a permanent nature.
Decision date: 5 August 2022| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to psychological injury; applicant argues the respondent is estopped from asserting a dispute under sections 4, 4(b), 9A, 11A(3) and 11A of the 1987 Actbecause of previous Certificate of Determination; Consent Orders entered into between the parties wherein the respondent agreed to pay the applicant weekly compensation for a closed period with an award for the respondent thereafter and agreed to pay section 60 (1987 Act) expenses with an award for the respondent thereafter; parties provided written submissions in relation to the estoppel argument; the respondent disputes that there is an issue estoppel arising from the Certificate of Determination- Consent Orders; Held — the respondent is estopped from relying on sections 4, 4(b), 9A, 11A(3) and 11A of the 1987 Act; Bouchmouni v Bakhos Matta t/as Western Red Services and Manpower Pty Ltd v Harris applied; Jaffarie V Quality Castings Pty Ltd considered; 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 sustained in the course of employment with the respondent from the nature and conditions of employment from 1 April 2018 to 11 December 2019 with a deemed date of injury of 11 December 2019.
Decision date: 27 July 2022| Principal member: Josephine Bamber
Action for weekly and lump sum compensation against two employers for physical and psychological injury; whether later employer liable for weeklies; whether alleged psychological injury was primary or secondary; whether the section 11A of the Workers Compensation Act 1987 (1987 Act) defence available if primary; whether the actions of the first respondent were reasonable regarding transfer; whether intervening medical condition relevant; Held — section 16 of the 1987 Act considered regarding weeklies claim against the second respondent after first respondent employment found causative of subject back injury: subsequent back complaints with second respondent not main or contributing factor; award for weeklies against first respondent; psychological injury primary; actions of first respondent not reasonable; award against first respondent for lump sum to be assessed; no current work capacity caused by psychological injury; intervening medical condition not relevant.
Decision date: 28 July 2022| Member: John Wynyard
Claim for weekly benefits and section 60 of the Workers Compensation Act 1987 expenses for left shoulder and cervical spine injury due to nature and conditions of employment; applicant employed as an assistant aged care nurse for 20 years; gradual onset of symptoms; main contributing factor; whether applicant’s evidence capable of discharging evidentiary onus; extent of incapacity; Held —applicant sustained injuries as alleged; no suitable employment having regard to nature of incapacity, age, education, skills and experience; awards in favour of the applicant for weekly compensation and medical expenses.
Decision date: 28 July 2022| Member: Rachel Homan
Applicant made a claim for lump sum compensation in respect of the left upper extremity and scarring; respondent submitted that she was not entitled to make a further claim as that would contravene the provisions under section 66(1A) of the Workers Compensation Act 1987 and 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held — the applicant had amended her claim made in 2020 and this claim was not a second claim and that it was in the interests of justice to exercise the discretion under s328(1A) of the 1998 Act to refer the matter for further assessment.
Decision date: 28 July 2022| Member: Carolyn Rimmer
Medical expenses; claim for cost of trial of medicinal cannabis trial where already approved and commenced at applicant’s own expense to some benefit; applicant previously underwent two fusion operations and a raft of conservative treatment to little effect; whether proposed trial is reasonably necessary per section 60 of the Workers Compensation Act 1987; Held — the treatment is reasonably necessary as a result of the injury; a treatment does not to either fully cure an injured worker or be the only appropriate treatment in order to be reasonably necessary; Diab v NRMA Ltd followed; applying the indicia out in Rose v Health Commission, the trial is reasonably necessary; the respondent is to pay the costs of and incidental to the trial of medicinal cannabis.
Decision date: 29 July 2022| Member: Cameron Burge
Claim for weekly payments for incapacity for work from agreed psychiatric injury; issue was whether section 11A of the Workers Compensation Act 1987 applied; respondent did not establish it did; Held — award for the applicant.
Decision date: 29 July 2022| Member: Marshal Douglas
Matter remitted back by Presidential Unit for determination following successful appeal by applicant; need to apply sections 15 and 16 of the Workers Compensation Act 1987 (1987 Act) to facts in relation to agreed injury; whether applicant’s condition a mere continuance of an accepted injury in 2009 or whether nature and conditions thereafter were to be applied to determine notional date of injury and date of whole person impairment for purposes of section 66 of the 1987 Act benefits; consideration of Makita v Sprowles; Alto Ford Pty Limited v Antaw; Stone v Stannard Bros Launch Services Pty Limited, Patterson v Secretary, Department of Planning, Industry and Environment; Held — award for applicant and first respondent; the nature and conditions of the applicant’s employment contributed to the development of her condition after 2009 such that applying sections 15 and 16 of the 1987 Act deemed date of injury was 6 August 2018 meaning the second respondent is liable to make payments of compensation referrable to pre-injury weekly earnings at that time and lump benefits in respect of agreed whole person impairment pursuant to section 66 of the 1987 Act.
Decision date: 1 August 2022| Member: Christopher Wood
Disputed claim for injury to cervical spine and cost of C5-7 anterior cervical decompression and fusion pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); consideration of Kooragang Cement Pty Ltd v Bates; Paric v John Holland Constructions Pty Ltd and Diab v NRMA Ltd; the applicant sustained injury to his cervical spine on 16 July 2019; and the proposed surgery is reasonably necessary medical treatment; Held — award for applicant for the cost of surgery, pursuant to section 60(5) of the 1987 Act.
Decision date: 1 August 2022| Member: Kerry Haddock
Applicant claimed weekly payments for psychological disorder; whether respondent entitled to rely on section 11A of the Workers Compensation Act 1987 (1987 Act); Held — the section 287A of the 1987 Act Notice pleaded section 11A of the 1987 Act and specifically that the respondent’s action was wholly or predominantly the cause of the injury; it had no medical expert advice to that effect and when it was supplied, it contradicted the claim; Hamad v Q Catering applied; award applicant.
Decision date: 2 August 2022| Member: John Wynyard
Claim for weekly benefits; permanent impairment compensation and medical expenses in respect of alleged consequential condition in right knee said to have arisen from accepted left knee injury; liability for consequential condition denied; Held — the applicant suffered a consequential condition in her right knee as a result of the left knee injury; the bilateral total knee replacement surgeries were reasonably necessary as a result of the applicant’s injury and the consequential condition respectively; the respondent is to pay the costs of and incidental to the bilateral knee replacement surgeries; the respondent is to pay the applicant weekly compensation in the amounts claimed as amended at the hearing; the claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the whole person impairment arising from the injury and consequential condition.
Decision date: 2 August 2022| Member: Cameron Burge
Claim for weekly payments and section 60 of the Workers Compensation Act 1987 (1987 Act); worker sustained frank injury to lumbar spine on 9 November 2017 while employed by the second respondent, a labour hire firm from June 2019; the worker was employed directly by the first respondent; her hours and duties remained the same; worker alleged injury to her lumbar spine while employed by the first respondent as a result of the nature and conditions of her duties; alternatively aggravation of her lumbar spine condition; whether the effects of the first injury had resolve; whether further injury as a result of employment with the first respondent; whether worker had any incapacity for employment; whether either or both injuries made a material contribution to incapacity; application of section 22 of the 1987 Act; Held — finding that worker had reduced capacity for employment; finding that employment with both respondents made a material contribution to her in capacity; liability apportioned equally between the respondents.
Decision date: 3 August 2022| Member: Jill Toohey
Assessment of costs; applicant made claim for lump sum compensation in November 2021; liability for injury not in dispute; claim resolved with an agreement that the respondent pay the applicant’s costs as agreed or assessed; applicant claimed the cost of an engineer’s report commissioned in 2019; opposed by the respondent; Held — respondent not liable for the cost of the engineer’s report which was unreasonably incurred in order to address liability issues rather than the medical dispute regarding the degree of permanent impairment; no order as to the costs of the assessment.
Decision date: 3 August 2022| Principal member: Glenn Capel
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 psychological injury due to overwork and bullying/harassment; consideration of medical information; downgrade in capacity; whether downgrade due to work injury or relationship issues; held downgrade connected to employment, work had no capacity for suitable employment; Held — award of weekly payments made.
Decision date: 1 August 2022| President’s Delegate: Parnel McAdam
Motor Accident Medical Review Panel Decisions
The claimant suffered injury in a motor accident on 10 November 2019 when she stopped her vehicle suddenly to avoid colliding with a vehicle travelling through a red light; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 (2017 Act); the Panel concluded that the claimant suffered an annular tear in the motor accident based on: absence of pre-existing low back symptoms; onset of low back pain immediately following the motor accident; the age of the claimant and the tear limited to one level; clinical findings made by Medical Assessor; opinions of two treating specialists; positive discogram findings supporting the annular tear as the source of the low back pain; the outer layer of the vertebral disc is known as the annulus fibrosus; the annulus fibrosus is a ring of cartilage and ligamentous fibres which contains nerve receptors; an annular tear is a tear of the annulus fibrosus which, due to the presence of nerve fibres, can result in significant back pain; an annular tear constituted a non-minor injury within the meaning of the 2017 Act; Held — original assessment revoked. Finding made that claimant sustained a non-minor injury to the low back.
Decision date: 26 July 2022| Principal Member: John Harris, Medical Assessors Drew Dixon and Clive Kenna | Injury module: Spine
Medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the Motor Accident Compensation Act 1999; claimant injured as a back seat passenger in a four-car rear end collision; claimant alleged injury to neck, lower back and left shoulder; original Assessor determined WPI was 10%; 5% for the neck and 5% for the back but 0% for the left shoulder due to similar restriction of range of motion in uninjured right shoulder; Held — WPI not greater than 10%; panel satisfied injury to neck and lower back but no direct injury to either shoulder; any restriction of movement in shoulders due to neck injury; claimant did not, at the time of examination satisfy Diagnostic Related Estimates II; restricted shoulder movement for both shoulders assessed by range of motion method at 8%.
Decision date: 30 June 2022| Member: Belinda Cassidy, Medical Assessors David McGrath and Shane Moloney | Injury module: Spine and Upper limb
The claimant suffered injury in a motor accident on 20 January 2016 when his vehicle was hit at the side; the claimant had a history of back pain but was asymptomatic at the time of the motor accident; post-accident the claimant underwent spinal fusion; three previous single medical assessors accepted the surgery was causatively related to the accident and assessed impairment at greater than 10%; Held — the short delay in onset of lumbar spine symptoms was medically plausible; the nature of the accident considered in the context of engineer evidence; it was accepted that the motor accident caused an onset of pain which was plausible in light of the previous surgery and degenerative changes; numerous treatment disputes decided in the absence of proper assistance by the parties; observation that medical assessment of future treatment is decided on different basis that Courts/assessments which assess damages based on a future contingency; Malec v Hutton considered; claimant assessed at 20% impairment as no deduction made; replacement certificates issued for treatment disputes based on an assessment of all 38 treatment disputes.
Decision date: 14 July 2022| Principal Member: John Harris, Medical Assessors Margaret Gibson and Rhys Gray | Injury module: Spine
The claimant suffered injury in a motor accident on 15 November 2020 when her vehicle was side swiped by a vehicle merging from another lane; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017; the claimant’s submission that the onus of proof lay on the insurer was rejected; Lynch v AAI Ltd applied; observations concerning the application of the principles in Watts v Rake in medical assessment matters where the medical assessor or the review panel is required to form their own opinion; the panel was not satisfied that the partial thickness tear of the right supraspinatus was caused or aggravated by the motor accident based on the nature of the accident, the delay in onset, the scan evidence showing degenerative pathology and the likelihood of the existence of tears in the claimant’s age bracket; the panel concluded that the claimant did not establish two signs of radiculopathy as defined in clause 5.8 of the of the Motor Accidents Guidelines; the various doctors did not identify two signs of radiculopathy; the clinical records referring to symptoms through the right shoulder and into the arm are not sufficient to establish radiculopathy because they do not establish sensory loss in a specific dermatome; the claimant’s submissions otherwise did not refer to two recorded signs of radiculopathy in any of the medical evidence; the signs of radiculopathy were otherwise not apparent from the material and on the examination conducted by the Medical Assessors; Held — original assessment that claimant’s injuries were minor confirmed.
Decision date: 29 July 2022| Principal Member: John Harris, Medical Assessors Geoffrey Stubbs and Shane Moloney | Injury module: Spine and Upper limb
Workers Compensation Medical Appeal Panel Decisions
The appellant appealed the assessments in two of the Psychiatric Impairment Rating Scale categories; although there were some aspects of the appellant’s presentation that could have led to a higher rating the Medical Assessor’s (MA) assessments were open to him on all the evidence; Ferguson v State of New South Wales applied; ultimately a case of medical minds differing; Held — No errors by MA; Medical Assessment Certificate (MAC) confirmed.
Decision date: 28 July 2022 | Panel Members: Member Deborah Moore, Medical Assessors Nicholas Glozier and Douglas Andrews | Body system: Psychiatric/psychological
Claim for lump sum compensation for injury to his back, right leg at or above the knee and left leg above the knee on 31 January 2001; injury to his right lower extremity on 30 April 2004 and injury to his left lower extremity and lumbar spine on 30 July 2007; approved Medical Specialist made an error in respect of the date the respondent commenced employment in assuming it commenced in February 1998 when in fact it commenced on 1 July 1990; Medical Assessor failed to consider apply section 65(1) of the of the Worker Compensation Act 1987 and section 323 of the Workers Compensation Act 1998 in relation to the deduction of any impairment resulting from the injury on 1 February 1998; Medical Appeal Certificate revoked.
Decision date: 28 July 2022 | Panel Members: Member Carolyn Rimmer, Medical Assessors David Crocker and Drew Dixon | Body system: Lumbar spine, right lower extremity and left lower extremity
Appeal by employer in respect of a Medical Assessment Certificate (MAC) following one further claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); following a previous award for the same injury; the employer submitted that the Medical Assessor made a deduction of 1/10th from the whole person impairment which was at odds with the available evidence and that he had not provided an explanation as to why such deduction was at not at odds with such evidence; the employer submitted that on the available evidence the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction should have been greater than 1/10th; the employer also claimed that the Medical Assessor had failed to take into account the effects of a subsequent motor vehicle accident on the work related injury to the cervical spine; Held — finding that the 1/10th deduction was not at odds with the available evidence and that there was no evidence before the Medical Assessor to indicate what, if any, injury suffered in the motor vehicle accident had on the previous work related injury to the cervical spine; MAC confirmed.
Decision date: 1 August 2022 | Panel Members: Member Brett Batchelor, Medical Assessors Mark Burns and Roger Pillemer | Body system: Cervical spine
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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