Legal Bulletin No. 74
This bulletin was issued on 19 August 2022
Issued 19 August 2022
Welcome to the seventy-fourth 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.
Supreme Court Decisions
ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by both defendants – error on the face of the record – extension of time – delay explained – incorrect legal test applied by delegate – no point of principle.
Decision date: 29 July 2022 | Before: Lonergan J
TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – claim for damages – psychiatric injury – medical assessment – clinical examination ordered to address inconsistencies on the materials – no psychiatric injuries caused by motor accident.
ADMINISTRATIVE LAW – bias – actual or apprehended – no prejudgment – medical assessor formed firm but preliminary view on the papers – plaintiff given opportunity to address inconsistencies.
ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – medical assessor must form own opinion based on expertise – medical assessor may disregard or assign little weight to evidence – relevance of evidence is factual issue for medical assessor.
ADMINISTRATIVE LAW – remedies – discretionary factors – review of medical assessment certificate – refusal of relief if internal review on available ground not sought – refusal of relief if President’s delegate not satisfied of error in material respect – concurrent internal appeal and judicial review.
Decision date: 12 August 2022 | Before: Basten AJ
Motor Accidents non-Presidential Member Decisions
Application by the insurer for the proceedings referring the damages claim to the Commission for the assessment to be dismissed; in accordance with section 54 of the Personal Injury Commission Act 2020 (2020 Act) for failure to comply with section 7.32(3) of the Motor Accident Injuries Act 2017 (2017 Act); duty, breach and injury admitted; insurer determined that the claimant’s only injuries caused by the accident were minor injuries and denied liability for the damages claim on that basis; where insurer disputed causation of an alleged lower back injury; where the claimant had sought the insurer’s position in relation to permanent impairment and non-economic loss; Held — taking into account the circumstances of the claim for the purposes of section 7.32(3) of the 2017 Act; the claimant had used her best endeavours to settle the claim before referring it for assessment; had it been found that the claimant had not satisfied section 7.32(3) of the MAI Act the proceedings would not have been dismissed; dismissing the proceedings would not have furthered or promoted the objects of the 2017 Act nor facilitated the just, quick and cost effective resolution of the real issues in the proceedings; to give effect to the guiding principle found in section 42 of the 2020 Act; Mammone v Insurance Australia Limited t/as NRMA and Golding v NRMA applied.
Decision date: 11 July 2022| Member: Brett Williams
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 motor accident occurred when the insured driver, the claimant’s cousin, had a sedative response to the use of methamphetamines the evening before; where the claimant had authorised the insured’s use of her vehicle in knowledge of the insured’s use of methamphetamines; Held - claimant not at fault for the motor accident and insurer permitted to reduce statutory benefits by 60%.
Decision date: 18 July 2022| Member: Bridie Nolan
Workers Compensation non-Presidential Member Decisions
Claim for weekly benefits on the basis of no current work capacity; voluntary payments of weekly payments being made at a rate agreed in prior proceedings; subsequent downgrade in certificates of capacity; evidence of ongoing symptoms at left knee and right hip; suitable employment pursuant to section 32A of the Workers Compensation Act 1987; relevance of geographical labour market; Held — applicant remained unfit for pre-injury duties and other physical work; evidence of capacity to work in light sedentary duties; Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer and Wollongong Nursing Home Pty Ltd v Dewar applied; evidence of real jobs in which the applicant would be able to work; Commission not satisfied that applicant had no current work capacity; the Commission declined to make the orders sought by the applicant.
Decision date: 4 August 2022 | Member: Rachel Homan
Whether a contract or any agreement was formed by the parties at all and if so was it to be characterised as a contract of service or contract for services such that the applicant was a worker or deemed worker for the purposes of the Workers Compensation Act 1987 (1987 Act); whether applicant had discharged onus; body parts and consequential conditions for referral to medical assessor for assessment of whole person impairment; whether lumbar spine injury and alleged consequential gastrointestinal condition were related to applicant’s frank injury; in accurate history of prior gastrointestinal condition given to medico legal specialists; CFMEU & Anor v Personnel Contracting Pty Limited, 2G Operations & Anor v Jamsek & Ors, Mateus v Zodune Pty Limited, Gharibeh v Secretary, Ministry of Health, On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation, Jafarian v WildFire Interiors Pty Limited, Makita v Sprowles considered; Held — on balance the material before Commission established a contract was formed between the parties and in the absence of a comprehensive committal of contract terms to writing regard was to be had to substance of their relationship; the contract was one of service and as such the applicant was a worker for purposes of the 1987 Act; the applicant suffered a lumbar spine injury in accident but on balance the gastrointestinal condition (digestive system) could not be held to be consequential on pain medication taken by applicant; remitted back to President for referral to medical assessor for assessment of whole person impairment entitlement on all injuries and conditions claimed excluding gastrointestinal.
Decision date: 4 August 2022 | Member: Christopher Wood
Claim for weekly benefits on the basis of no current work capacity; whether incapacity results from left shoulder injury; evidence of workplace stressors causing psychological decompensation following return to work; whether secondary psychological symptoms also; Calman v Commissioner of Police and McCarthy v Department of Corrective Services considered; Held — ongoing physical and secondary psychological symptoms materially contributed to incapacity; no current work capacity; award for the applicant for weekly compensation pursuant to section 37(1) of the Workers Compensation Act 1987.
Decision date: 5 August 2022 | Member: Rachel Homan
Dispute about pre-injury weekly earnings and current capacity for work in some suitable employment; evidence tendered from both sides largely unsatisfactory; no wage records or tax records kept; applicant paid in cash; Held — determination made on the available evidence being deposits in bank account; award in favour of the applicant.
Decision date: 5 August 2022 | Member: Jane Peacock
Date of injury and consequent determination of pre-injury average weekly earnings; section 16 injury of the Workers Compensation Act 1987; Westpac Banking Corporation v Hungerford, P & O Berkeley Challenge Pty Ltd v Alfonzo considered; determination of date of injury in the context of intercurrent conditions; Held — award for the applicant.
Decision date: 5 August 2022 | Member: Catherine McDonald
Claim for the cost of lumbar spinal surgery as a result of a frank incident in the course of the applicant worker’s employment with the respondent; the respondent resists the claim principally on the appropriateness of the surgery having regard to the applicant’s young age, his psychological condition, comorbidities from which he suffers and chronic pain resulting in opioid addiction; the applicant’s reasonable necessity for surgery supported by his treating neurosurgeon and spine surgeon, a second neurosurgeon and spine surgeon and an orthopaedic and spine surgeon; the respondent relies on the opinion of an orthopaedic surgeon who asserts the effects of the frank injury; an aggravation of pre-existing degenerative condition would have ceased; Held — finding that such effects have not ceased; surgery proposed by the applicant’s treating neurosurgeon and spine surgeon reasonably necessary as a result of the frank injury; the respondent ordered to pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses including the costs of and incidental to the surgery.
Decision date: 8 August 2022 | Member: Brett Batchelor
Claim for injury to left arm; claim for lump sum pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act);consideration of statements from the applicant, the first respondent and others; medical reports and other treatment records; claim correspondence and factual material; consideration of whether the applicant was a worker as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); Stevens v Brodribb Sawmilling Co Pty Limited, Digby v Hyspec Construction & Roofing Pty Limited, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited, ZG Operations Australia Pty Limited v Jamsek, Drca v KAB Seating Systems Pty Ltd considered; consideration of whether the applicant was a deemed worker as defined in Clause 2 of schedule 1 to the 1998 Act; consideration of whether there was in existence a contract between the first respondent and the third respondent sufficient to make the third respondent liable for the applicant’s injury pursuant to section 20 of the 1987 Act; Held – the applicant was not a worker when he was injured; the applicant was a deemed worker when he was injured; the applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018 pursuant to section 4(a) of the 1987 Act; the third respondent was liable to pay compensation to the applicant pursuant to section 20 of the 1987 Act; matter remitted to the President for referral to a Medical Assessor in relation to the claim pursuant to section 66 of the 1987 Act.
Decision date: 8 August 2022 | Member: Gaius Whiffin
Lump sum claim for permanent impairment of the right upper extremity and cervical spine; right upper extremity not disputed; cervical spine disputed; consideration of factual and medical evidence; consideration of Greater Taree City Council v Moore and Kooragang Cement Pty Ltd v Bates; Held — applicant suffered injury to his cervical spine arising out of or in the course of his employment on 5 November 2018; matter referred to Medical Assessor.
Decision date: 8 August 2022 | Member: Michael Wright
Claim for permanent impairment in respect of disputed disease injury, as a result of exposure to hot and humid conditions while working in Singapore; applicant claimed to be employed by respondent, which disputed worker and maintained the employer was UON Singapore Pte Ltd; respondent also disputed that employment was connected with New South Wales; lack of taxation records to establish correct employer; the only payslip in evidence was issued by UON Singapore Pte Ltd; consideration of ZG Operations Australia Pty Ltd v Jamsek and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; Held — the applicant has not established that he was employed by the respondent; the weight of the evidence is in favour of employment by UON Singapore Pte Ltd; unnecessary to consider the other matters in dispute; award for the respondent.
Decision date: 9 August 2022 | Senior Member: Kerry Haddock
Claim for permanent impairment compensation in respect of injuries caused by falls for which the applicant had not sought medical treatment while employed and by the nature and conditions of the employment; finding that the applicant suffered injury to her lumbar spine as result the nature of the employment; finding that she had not discharged the onus of establishing injury caused by the falls; Held — decline to refer the matter to an Medical Assessor as worker’s assessment of back impairment did not surpass the section 66 threshold of the Workers Compensation Act 1987.
Decision date: 9 August 2022 | Member: Paul Sweeney
Claim for proposed surgery; injury to claimed body parts in issue; whether applicant suffered injury as alleged to cervical spine, lumbar spine and left shoulder; Held — the applicant suffered cervical and lumbar spine injuries by way of aggravation to pre-existing degenerative changes; the applicant suffered a frank injury to his left shoulder; the requirement for the proposed surgery to the left shoulder is as a result of the applicant’s injury; the respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in relation to the injuries to the cervical spine, lumbar spine and left shoulder; the proposed surgery is reasonably necessary; the respondent is to pay the costs of and incidental to the proposed surgery to the left shoulder.
Decision date: 9 August 2022 | Member: Cameron Burge
The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) resulting from the nature and conditions of employment with the respondent; the respondent disputes the applicant sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) resulting from the nature and conditions of his employment with the respondent; the respondent disputes the deemed date of injury being the date the applicant made his claim for permanent impairment compensation and the respondent also raises defence under sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; Held — the applicant sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulna nerve and right shoulder) as a result of the nature and conditions of his employment with the deemed date of injury being the date the applicant made his claim for permanent impairment compensation under section 66 of the 1987 Act; the applicant is not barred from recovery of permanent impairment compensation payable under section 66 of the 1987 Act.
Decision date: 10 August 2022 | Member: Jacqueline Snell
Claim for permanent impairment compensation including for pain and suffering in respect of a psychological injury with a deemed date in December 2002; dispute over the amount payable pursuant to section 67 of the Workers Compensation Act 1987 for pain and suffering; dispute also as to whether applicant had an assessable but non-compensable impairment as at 31 December 2001 and whether the transitional provisions require a deduction for such an impairment; Held — the applicant’s condition is chronic and severe; he has endured it for nearly 20 years and it is likely to persist; on balance, a finding of pain and suffering at the rate of 55% of a most extreme case is appropriate; there is insufficient evidence to establish the presence of an assessable but previously non-compensable impairment as at 31 December 2001; there is no doubt the applicant was exposed to several traumatic events before that date and experienced some symptoms consistent with his injury; however, there is no expert opinion which even suggests the presence of a rateable impairment pursuant to the Psychiatric Impairment Ratings Scale (PIRS) at or before 31 December 2001; the mere presence of some symptomology is not a substitute for evidence sufficient to make a finding of the presence of an assessable impairment at the relevant date; accordingly the transitional provisions do not apply and there is no deduction to be made.
Decision date: 10 August 2022 | Member: Cameron Burge
Workers Compensation President’s Delegate Decision
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987 (1987 Act); statutory interpretation; volunteer work; consideration of meaning of “employment in work”; Held — the applicant had no current work capacity based on medical information; award made under section 38 of the 1987 Act.
Decision date: 8 August 2022| President’s Delegate: Parnel McAdam
Motor Accident Medical Review Panel Decisions
Motor Accident Injuries Act 2017; minor injury; cervical spine; lumbar spine; pre-existing condition; disc extrusion; surgery; aggravation; material contribution; the claimant suffered injury in a motor accident on 12 November 2020; the claimant suffered injury to the cervical and lumbar spine; pre-existing L4/5 disc extrusion with stenosis and radiculopathy; following accident claimant underwent urgent surgery; Held — soft tissue injury to the cervical spine is a minor injury; accident exacerbated symptoms in lumbar spine, pathology shown on magnetic resonance imaging (MRI) scan more pronounced resulting in need for urgent surgery; accident not sole cause of claimant’s condition but materially contributed to condition and need for surgery; aggravation of injury to lumbar spine, namely L4/5 disc extrusion with severe central canal stenosis and left sided radiculopathy; not a minor injury.
Decision date: 1 August 2022| Member: Susan McTegg, Medical Assessors Neil Berry and Mohammed Assem | Injury module: Spine
Motor vehicle accident; rear end collision; whole person impairment; cervical spine; thoracic spine; shoulder injury; soft tissue injury; medical review panel; causation; Motor Accident Compensation Act 1999 (1999 Act);the claimant suffered injury in a rear end collision on 24 March 2017; the dispute related to the assessment of permanent impairment under the 1999 Act; assessment of injury to cervical spine; thoracic spine and right shoulder; question of causation of shoulder injury; Held — cervical spine soft tissue injury; assessed as diagnosis-related estimate (DRE) cervicothoracic category 1 resulting in 0% whole person impairment; thoracic spine soft tissue injury; assessed as DRE lumbosacral category 1 resulting in 0% whole person impairment; Panel not satisfied right shoulder injury causally related to accident; lack of complaint of shoulder injury; no restriction of range of movement recorded by medico-legal specialists in the 12 months post-accident.
Decision date: 1 August 2022| Member: Susan McTegg, Medical Assessors Shane Moloney and Geoffrey Stubbs| Injury module: Spine and upper limb
Workers Compensation Medical Appeal Panel Decisions
The appellant appealed on the basis of deterioration of the worker’s condition and the availability of additional relevant information; on receipt of the Medical Assessment Certificate (MAC) the worker attempted suicide and was hospitalised; Panel accepted the fresh evidence and determined that the worker had not reached maximum medical improvement; Held — MAC revoked.
Decision date: 21 June 2022 | Panel Members: Member Deborah Moore, Medical Assessors Nicholas Glozier and Patrick Morris| Body system: Psychiatric/psychological
The appellant appealed the one-half deduction pursuant to section 323 of the Workers Compensation Act 1998 made by the Medical Assessor; appellant claimed only one-tenth should have been deducted; panel found extensive pre-existing conditions but noted that the appellant had been able to work until the incident pleaded; Held — one-third deduction appropriate; Medical Assessment Certificate revoked.
Decision date: 4 August 2022 | Panel Members: Member Deborah Moore, Medical Assessors Gregory McGroder and Drew Dixon | Body system: Lumbar spine, right lower extremity, right lower extremity and scarring
Appeal by employer on grounds that assessment of Medical Assessor Anderson (MA) was made on the basis of incorrect criteria; the Medical Assessment Certificate (MAC) dated 11 January 2022 contained a demonstrable error; the appellant submitted having regard to the significant discrepancy on the ranges of motion assessed in respect of the respondent worker’s injured right shoulder, between both the independent medical examiners retained by the parties on the one hand and the ranges of motion assessed by the MA on the other, there was a demonstrable error in the MAC; in the circumstances, the MA should have used a method of assessing the right shoulder other than the range of motion method; the appellant also submitted that the MA was in error in not making a 1/10th deduction pursuant to section 323 of the Workers Compensation Act 1998 (1998 Act);from his assessment of whole person impairment (WPI) both on respect of the right shoulder and the respondent’s injured cervical spine; the Appeal Panel found that, having regard to pre-existing problems in the respondent’s right shoulder appearing from the clinical notes of the general practitioner the MA should have made a section 323 of the 1998 Act deduction from the assessment of WPI as a result of injury to the right shoulder; the respondent was examined by a member of the Appeal Panel using the range of motion method; the Panel held was the correct method of assessment of the right shoulder; this resulted in similar ranges of motion to those found by the two independent medical examiners engaged by the parties; a 1/10th section 323 of the 1998 Act deduction was made from the assessment of WPI as a result of injury to the right shoulder found by the member of the Appeal Panel on his examination of the respondent; there was no challenge to the MA’s assessment of WPI as a result of injury to the cervical spine; Held – found that no section 323 of the 1998 Act deduction should be made from the assessment of WPI as a result of such injury; MAC revoked and new MAC issued.
Decision date: 5 August 2022 | Panel Members: Member Brett Batchelor, Medical Assessors Roger Pillemer and Greg McGroder | Body system: Cervical spine and right upper extremity
Medical Assessor (MA) diagnosed respondent had Complex Regional Pain Syndrome using criteria of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 (the Guidelines); issue raised in appeal was whether based on what MA had set out in Medical Assessment Certificate (MAC) the respondent met all criteria of clause 3 of Table 17.1 of the Guidelines; Appeal Panel found findings MA recorded in MAC not sufficient to establish whether respondent met criterion for sudomotor/oedema; Appeal Panel re-examined respondent; Held — no findings of sudomotor/oedema on re-examination; MAC revoked.
Decision date: 5 August 2022 | Panel Members: Member Marshal Douglas, Medical Assessors Mark Burns and James Bodel| Body system: Left lower extremity
Appeal against 1/10th deduction pursuant to section 323 of the Workers Compensation Act 1998 (1998 Act); whether Medical Assessor (MA) had erred in not referring to the 1/2 deduction assessed by the worker’s expert; whether the MA had failed to read or properly consider all the material before him; whether MA had given adequate reasons; Held — MA gave adequate reasons as to the 1/10th deduction; the cause of the deduction was the same as that identified by the worker’s expert but the MA assessed a different impairment; MA under no obligation to refer to worker’s expert’s assessment; Western Sydney Local Health v Chan applied; appellant employer’s allegation that MA failed to consider or consider properly the material before him rejected as speculative and contrary to the presumption of regularity; Jones v Registrar WCC applied; Medical Assessment Certificate confirmed.
Decision date: 5 August 2022 | Panel Members: Member John Wynyard, Medical Assessors Mark Burns and Drew Dixon | Body system: Left upper extremity
Appeal by employer from assessment of 15% whole person impairment (WPI) for psychological injury; whether Medical Assessor (MA) had erred in finding class 3 assessments for three of the Psychiatric Impairment Rating Scale (PIRS) categories where both medico-legal experts had found class 2; Held — the MA acknowledged and explained in detail the reasons why he differed with the earlier assessments in the categories of self-care and maintenance, social and recreational activities and employability; Ferguson v State of New South Wales and Jenkins v Ambulance Service of New South Wales applied; employer demonstrated no more than a mere disagreement; observations concerning employability category where circumstances change from teleconference to assessment; Medical Assessment Certificate confirmed.
Decision date: 5 August 2022 | Panel Members: Member John Wynyard, Medical Assessors Douglas Andrews and Nicholas Glozier | Body system: Psychiatric/psychological
Psychological Injury; appellant alleged error in the assessment under one category under the Permanent Impairment Rating Scale (PIRS) namely social and recreational activities; the ratings was open to the Medical Assessor (MA) and the Panel could discern no error; the appellant also alleged error in the MA failing to apportion impairment between primary and secondary injury; the diagnosis of the psychiatric condition that results from a psychological injury referred to the MA is a matter for the expert clinician; based on the MA’s assessment using his clinical judgment on the day of assessment; an MA cannot assess impairment from a psychiatric condition that he is not able to diagnose on the day of assessment; Held — Medical Assessment Certificate confirmed.
Decision date: 8 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Nicholas Glozier and Michael Hong | Body system: Psychiatric/psychological
Psychological Injury; appellant alleged error in the assessment under all categories under the Permanent Impairment Rating Scale (PIRS) namely self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held — Medical Assessment Certificate confirmed.
Decision date: 8 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Nicholas Glozier and Michael Hong | Body system: Psychiatric/psychological
The appellant appealed the diagnosis-related estimate (DRE) II categorisation in respect of the cervical spine and submitted DRE III was appropriate; Panel found two criteria (of which one must be major) must be present to satisfy a DRE III categorisation; no evidence to support DRE III; Held — Medical Assessment Certificate confirmed.
Decision date: 10 August 2022 | Panel Members: Member Deborah Moore, Medical Assessors Gregory McGroder and J Brian Stephenson | Body system: Cervical spine
Motor Accidents Merit Review Decisions
Merit review matter under Schedule 2 (1)(a) of the Motor Accident Injuries Act 2017 (2017 Act); dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the 2017 Act; calculation of pre-accident weekly earnings (PAWE) under Schedule 1 (4)(1) of the 2017 Act; whether statutory benefits received by the claimant in the 12 months prior to the motor accident should be excluded from gross earnings for the purpose of calculating PAWE under subclause 4(1) of the 2017 Act; Held – the reviewable decision is varied; the reviewable decision concerns the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the of the 2017 Act and is therefore a merit review matter under Schedule 2 (1)(a) of the 2017 Act; the amount of the claimant’s PAWE is determined to be $828.83; the insurer is to apply PAWE of $828.83 when determining the claimant’s entitlements under Division 3.3 of the 2017 Act; the effective date of this decision is 30 October 2021.
Decision date: 8 August 2022 | Merit Reviewer: Maurice Castagnet
The reviewable decision is about whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017 (2017 Act) the claimant’s legal costs and expenses are reasonable and necessary and is therefore a merit review matter under Schedule 2(1) (aa) of the 2017 Act; Motor Accident Injuries Regulation 2017 and Personal Injury Commission Regulation 2020 considered; Held — the reviewable decision is set aside.
Decision date: 12 August 2022 | Merit Reviewer: Terence O'Riain
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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