Legal Bulletin No. 75
This bulletin was issued on 26 August 2022
Issued 26 August 2022
Welcome to the seventy-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.
WORKERS COMPENSATION – Anshun Estoppel – Port of Melbourne Authority v Anshun Pty Ltd  HCA 45; Tomlinson v Ramsey Food Processing Pty Ltd  HCA 28 discussed and applied – Bruce v Grocon Ltd 2  NSWCC 10 discussed – reasonableness – Ling v Commonwealth  FCA 1646; Habib v Radio 2UE Sydney Pty Ltd  NSWCA 231; Champerslife Pty Ltd v Manojlovski  NSWCA 33 applied – raising a new issue on appeal Mamo v Surace  NSWCA 58 applied – factual error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd  NSWWCCPD 25 applied.
Decision date: 15 August 2022 | Before: Deputy President Elizabeth Wood
Workers Compensation non-Presidential Member Decisions
Claim for death benefit and apportionment pursuant to sections 25 and 29 of the Workers Compensation Act 1987 (1987 Act) by the child of the deceased worker and the child’s mother; liability accepted; claim by child’s mother not pressed and submission made on her behalf that the worker’s child was the only person dependent on him and death benefit should be paid to her; McCafferty’s Management Pty Ltd v Pimlott, Aafjes v Kearney, Holdlen Pty Limited v Walsh, and TNT Group 4 Pty Ltd v Halioris considered; Held — was dependent on the worker at the date of his death; applicant was the only person dependent on the worker at the date of his death; first respondent to pay the sum of $504,350 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the 1987 Act for the applicant until she attains the age of 18 years.
Decision date: 18 February 2022 | Senior member: Kerry Haddock
Application for reconsideration of claim for death benefit to make a claim for interest on lump sum from date of claim to date of determination; consideration of Samuel v Sebel Furniture Limited, Cameron v StateCover Mutual Ltd, Zhang v Universe Investments Pty Ltd t/as Kings Seafoods, Port of Melbourne Authority v Anshun Pty Ltd, Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited, Baldwin v Fleetmaster Services Pty Ltd, Mudgee Explorer Tours Pty Ltd v Clarke, Hu v Rongfar Property Services Pty Ltd, Youseph v Homebush Unit Trust t/as Primo Smallgoods and Hughes Helicopters Pty Ltd v Brink; Held — Decision of Commission reconsidered; award for applicant of interest from date claim was accepted as applicant is minor child of deceased worker; interest to be paid on lump sum of $504,350 from 11 August 2021 to 18 February 2022 at the rate of 2% per annum; first respondent to pay interest to NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the Workers Compensation Act 1987 for the applicant until she attains the age of 18 years.
Decision date: 16 May 2022 | Senior member: Kerry Haddock
Claim for permanent impairment compensation; respondent accepts liability for cervical spine but disputes injury to thoracic spine and right shoulder; Held — the applicant suffered injury to each of the claimed body parts which all demonstrated clear pathological change post-injury consistent with the applicant’s complaints post-injury and the treating medical material; the respondent’s medical expert did not specifically rule out injury to the right shoulder or thoracic spine; the fact his report focused on the cervical spine injury is not a sufficient basis to draw an inference that his opinion rules out injury to the other body parts; matter remitted to the President for referral to a Medical Assessor to assess permanent impairment to the claimed body systems.
Decision date: 11 August 2022 | Member: Cameron Burge
Left arm, left thumb and fingers disputed under Section 4(a) of the Workers Compensation Act 1987 (1987 Act); entitlement to weekly benefits and medical and related expenses disputed; the value of contemporaneous evidence; the weight to be given to expert evidence; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles and South Western Sydney Area Health Service v Edmonds considered and applied; Held — the applicant did not suffer injuries to the left arm, left thumb and fingers arising out of or in the course of her employment with the respondent on 8 March 2021 within the meaning of sections 4(a) and 9A of the 1987 Act; award for the respondent in respect of the applicant’s claimed injuries to the left arm, left thumb and fingers on 8 March 2021.
Decision date: 11 August 2022 | Member: Anthony Scarcella
Claim for weekly benefits and for section 60 of the Workers Compensation Act 1987 (1987 Act) expenses as a result of psychological injury sustained by the applicant worker in the course of his employment with the respondent; no issue that the applicant sustained psychological injury; the respondent employer claims that it was caused by reasonable action taken or proposed to be taken by or on its behalf with respect to discipline pursuant to section 11A of the 1987 Act; Held — finding that the injury was not wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline; the action taken by the respondent employer was not reasonable; awards in favour of the applicant for weekly benefits compensation and for costs and expenses pursuant to section 60 of the 1987 Act.
Decision date: 15 August 2022 | Member: Brett Batchelor
Lump sum claim for disputed primary psychological injury where no dispute regarding existence of a secondary psychological injury; lay and medical evidence considered; Greater Taree City Council v Moore, Kooragang Cement Pty Limited v Bates and AV v AW considered; Held — the applicant suffered primary psychological injury; referred to Medical Assessor for assessment of permanent impairment.
Decision date: 17 August 2022 | Member: Michael Wright
Workers Compensation President’s Delegate Decision
Work capacity dispute; decision to reduce pre-average weekly earnings rate; clause 2 of Schedule 3 to the Workers Compensation Act 1987 (1987 Act);meaning of “earnings”; clause 6(1) of Schedule 3 to the 1987 Act; Held – the applicant failed to discharge onus of poof on the balance of probabilities; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd applied; evidence did not demonstrate applicant was earning a higher income for work performed in employment under clause 6 of Schedule 3 to the 1987 Act; interim payment direction declined.
Decision date: 12 August 2022 | President’s delegate: Kathryn Camp
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of 12% whole person impairment, 6% lumbar spine, 2% cervical spine, 4% right knee in 2014; whether deterioration has resulted in an increase in the degree of permanent impairment; whether condition or degree of permanent impairment of the left shoulder may be taken into account; where not assessed in 2014; whether time should be extended for filing a Notice of Opposition; whether leave needed to rely on fresh evidence; Held — Medical Assessment Certificate set aside and replaced.
Decision date: 12 August 2022 | Panel Members: Member Richard Perrignon, Medical Assessors John Ashwell and David Crocker | Body system: Cervical spine, lumbar spine, right lower extremity and left upper extremity
Appeal by worker against deductions pursuant to section 323 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) including 50% reduction for lumbar spine impairment; worker argued that the Medical Assessor (MA) had considered a frank injury and not the disease injury referred for assessment; section 15 of the Workers Compensation Act 1987 (1987 Act) precluded a section 323 deduction of the 1998 Act and that if one was made it should have been pursuant to s323(2) of the 1998 Act; Held — MA did not misconstrue the injury referred; it was open to the MA to make a deduction as the case was pleaded and put by the appellant as one to which section 16 of the 1987 Act applied; Vannini v Worldwide Demolitions Pty Ltd considered; the MA had given no logical reasons for making a deduction of 50% in respect of lumbar spine; deductible proportion reassessed at 10%; Medical Assessment Certificate revoked.
Decision date: 15 August 2022 | Panel Members: Member Paul Sweeney, Medical Assessors Margaret Gibson and James Bodel | Body system: Right upper extremity, left upper extremity and lumbar spine
Subject matter of decision; assessment of hearing loss; appellant submitted that Medical Assessor (MA) erred in not including losses at 2000 Hz as being due to occupational noise exposure; panel satisfied that losses at 2000 Hz is not due to noise exposure after considering the audiograms and history of noise exposure; Held — Medical Assessment Certificate issued on 11 May 2022 by the MA should be confirmed.
Decision date: 15 August 2022 | Panel Members: Member Carolyn Rimmer, Medical Assessors Brian Williams and Joseph Scoppa | Body system: ENT
Total knee replacement; extent of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction; previous non-work-related injuries and treatment; asymptomatic at time of injury; osteoarthritis shown on scans at time of work injury; Cole v Wenaline and Vitaz v Westform considered; Held — one half deduction was open to Medical Assessor; Medical Assessment Certificate confirmed.
Decision date: 16 August 2022 | Panel Members: Member Catherine McDonald, Medical Assessors Roger Pillemer and Brian Stepheson | Body system: Lower extremity
Worker appeals against the assessment by Medical Assessor (MA) of diagnosis-related estimates (DRE) I respect of lumbar spine; MA found asymmetry which he related to the worker’s hip pathology but no other clinical signs of lumbar impairment; worker argued that the MA had not assessed the dispute in accordance with the determination of the Commission that he suffered a consequential medical condition of the lumbar spine and that he or failed to give reasons for his decision; Held — that MA had assessed the injuries referred for assessment as he found no structural abnormality and no clinical signs of injury to the lumbar spine there was no error in assessing DRE I; Medical Assessment Certificate confirmed.
Decision date: 17 August 2022 | Panel Members: Member Paul Sweeney, Medical Assessors Margaret Gibson and Drew Dixon | Body system: Lumbar 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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