Legal Bulletin No. 76
This bulletin was issued on 2 September 2022
Issued 2 September 2022
Welcome to the seventy-sixth 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 – Medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 – expert evidence – factual error.
Decision date: 23 August 2022 | Before: Acting President Michael Snell
WORKERS COMPENSATION – failure to lodge a Notice of Opposition to the appeal – failure to deal with an issue raised – failure to take into account evidence in determining the nature and date of the injury.
Decision date: 23 August 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Claim for economic loss; consideration of case law on balance of probabilities; Sdrolias v Allianz Australia Insurance Ltd considered; no precise evidence of relevant earning rates; consideration of case law on economic loss: Mead v Kerney, Nominal Defendant v Livaja, Medlin v State Government Insurance Commission, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol and Allianz Australia Insurance Ltd v Kerr considered; section 126 of the Motor Accidents Compensation Act 1999 assumptions; section 4.7 Motor Accidents Injuries Act 2017.
Decision date: 11 July 2022 | Member: Stephen Boyd-Boland
Damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; claimant is a self-employed project manager; involved in rear-end collision; alleged soft tissue injuries and development of psychological injuries which were having a significant impact on his ability to work and on his activities of daily living; insurer obtained medical evidence to suggest claimant was feigning or malingering biomechanical evidence to suggest claimant was exaggerating the severity of the accident; impact and surveillance evidence to suggest the claimant’s injuries, disabilities and impairments were not as great as suggested; claim settled for $400,000; Held— settlement approved on basis settlement figure was a compromise by both parties taking into account the likely success or otherwise of their respective cases.
Decision date: 5 August 2022 | Member: Belinda Cassidy
Miscellaneous claims assessment matter; whether for the purposes of sections 3.11 and 3.38 of the Motor Accident Injuries Act 2017 the motor accident concerned was caused by the fault of another person; whether the insurer is entitled to cease statutory benefits payable in respect of the motor vehicle accident; two vehicle incident, no collision between the two vehicles; claimant forced to brake suddenly; claimant momentarily distracted; Podrebersek v Australian Iron and Steel Pty Ltd considered; Held — the accident was caused wholly by the fault of the claimant.
Decision date: 15 August 2022 | Member: Stephen Boyd-Boland
Settlement approval; economic loss; femoroacetabular impingement; torn anterosuperior labrum; approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; liability admitted; self-employed construction landscaper; 24 years of age; femoroacetabular impingement with a torn anterosuperior labrum; three weeks off work; minimal treatment; no opinion as to future prognosis; possibility of arthritis; past and future economic loss only; Held — settlement approved in the sum of $27,366.
Decision date: 16 August 2022 | Member: Susan McTegg
Settlement approval; motor vehicle accident; neck; right shoulder; left leg; post-traumatic stress disorder; economic loss; approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; motor vehicle accident; liability admitted; injury to neck and right shoulder; laceration to left leg; post-traumatic stress disorder; work as an Uber driver; moved to Australian Capital Territory post-accident; less traffic; anxiety when driving; past and future economic loss; costs of former lawyer subject of equitable lien; Held — settlement approved in the sum of $220,000; settlement within the range of likely potential damages assessment.
Decision date: 22 August 2022 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Claim by police officer for weekly payments following a psychological injury; whether section 11A defence of the Workers Compensation Act 1987 established; whether employment wholly or predominantly caused the injury; whether the actions by the respondent were reasonable; Held — respondent failed to meet its onus of proof on both counts; applicant’s colleagues convicted of serious offences; applicant voluntarily gave statement to professional standards command; reassured that he would be supported on several occasions over the next few months; then accused of failing to prevent colleagues’ criminal behaviour and failing to report they were using two mobile phones; put on interim risk program and transferred to general duties at Mt Druitt; actions unreasonable; Commissioner of Police v Minahan considered; respondent also failed to meet onus as to whether employment wholly or predominantly the cause of the condition; respondent relied on opinion of expert on 9 July 2021 but failed to respond to applicant’s expert opinion of 13 January 2022 which found a different psychological injury following further treatment over the intervening months; Hamad v Q Catering Ltd applied; award applicant.
Decision date: 18 August 2022 | Member: John Wynyard
Claim for proposed L4/5 microdiscectomy; dispute as to whether there was radiculopathy for which treatment was proposed; consideration of Rose v Health Commission (NSW), Margaroff v Cordon Blue Cookware Pty Ltd and Diab v NRMA Ltd; Held — proposed surgery is reasonably necessary as a result of injury in course of employment on 27 March 2020.
Decision date: 19 August 2022 | Member: Michael Wright
Claim for weekly benefits and section 60 expenses of the Workplace Injury Management and Workers Compensation Act 1998; whether applicant was a worker or deemed worker; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, ZG Operations Australia Pty Ltd v Jamsek considered; in the absence of a written contract; consideration of the indicia of employment remains relevant; Held – applicant was neither a worker nor a deemed worker; award for the respondent.
Decision date: 19 August 2022 | Member: Carolyn Rimmer
By two work capacity decisions the insurer determined that the worker was capable of working 12 hours per week in selected duties for the remainder of the section 37 period of the Workers Compensation Act 1987 (1987 Act) and was not entitled to compensation in the third entitlement as he possessed a current earning capacity; on a consideration of the matters set out in the definition of suitable employment in section 32A of the 1987 Act; Held — the worker had no current earning capacity; work capacity decisions rescinded; award for the worker pursuant to sections 37 and 38 of the 1987 Act on the basis of total incapacity.
Decision date: 22 August 2022 | Member: Paul Sweeney
Claim for lump sum compensation and incurred section 60 expenses of the Workers Compensation Act 1987 (1987 Act); accepted right foot and ankle injury; whether consequential right shoulder condition due to use of crutches and excessive weightbearing through right upper limb to take weight off injured lower limb; inconsistencies between applicant’s evidence and medical evidence as to period of crutch use and onset of symptoms; Held — histories provided to applicant’s physiotherapist and medicolegal expert were “sufficiently like” the facts established; applicant sustained a consequential right shoulder condition; matter remitted to President for referral to a Medical Assessor; general order for section 60 expenses of the 1987 Act.
Decision date: 23 August 2022 | Member: Rachel Homan
The applicant claims weekly benefits and medical and related treatment expenses payable under the Workers Compensation Act 1987 (1987 Act) resulting from alleged primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with injury, incapacity and need for medical and related treatment placed in issue; defence is also raised under s 11A(1) of the 1987 Actwith respect to performance appraisal; Held – the applicant sustained primary psychological injury in the course of her employment with the respondent and the applicant’s employment is the main contributing factor to injury; the applicant’s injury was not wholly or predominately caused by reasonable action taken by the hospital with respect to performance appraisal; the applicant suffers an incapacity for work resulting from injury and has entitlement to weekly compensation payable under section 37 of the 1987 Act; as the applicant requires medical and related treatment she has an entitlement to compensation payable under section 60 of the 1987 Act.
Decision date: 24 August 2022 | Member: Jacqueline Snell
Psychological injury allegation by employee of 36 years; notice of injury and claim issues resolved in favour of the applicant; injury and causation established on the evidence; respondent’s defence on section 11A of the Workers Compensation Act 1987 not established because matters as to performance and discipline occurred much later than onset of work-related psychological condition; applicant no capacity for work for first and second entitlement periods but some capacity beyond then on the evidence; Held — award for the applicant 130 weeks of weekly payments but not thereafter; matter remitted for section 66 medical assessment of the 1987 Act.
Decision date: 24 August 2022 | Member: Philip Young
Motor Accidents Medical Review Panel Decisions
The claimant suffered injury in a motor accident on 20 September 2019 as a pedestrian hit by a vehicle; the issue was whether the claimant sustained a non-minor injury; specifically whether various annular tears and shoulder pathology was caused by the motor accident;
the Medical Assessor viewed the scans and concluded that based on the disc abnormality seen on the pre-accident imaging there was insufficient evidence that the subject motor accident had caused a new traumatic disc cartilage tear; the Panel was not satisfied that the claimant injured her right shoulder as she did not fall onto that side and there was no symptoms into the right shoulder recorded reasonably contemporaneously with the motor accident; the scan evidence in the right shoulder showed longstanding changes which are consistent with the claimant’s age and which will gradually deteriorate over time; Held — the Panel was not satisfied that the motor accident caused a non-minor injury.
Decision date: 16 August 2022 | Panel Members: Principal Member John Harris, Medical Assessors Alan Home and Thomas Rosenthal | Injury Module: Spine, upper limb and lower limb
Medical assessment of minor injury and claimant’s review under section 7.26 of the Motor Accidents Injury Act 2017; injuries referred to Medical Assessor Ian Cameron were cervical spine (disc protrusion and radiculopathy), thoracic spine (whiplash associated disorder) and a head injury (concussion, post-concussion syndrome and memory loss); re-examination conducted; Held — the Panel had concerns about accuracy of claimant’s recall; Panel accepted soft tissue injuries occurred to the claimant’s cervical and thoracic spine but no evidence that the claimant had two of the five signs of radiculopathy at any time since the accident; the Panel did not accept that the claimant’s disc bulge was caused by the accident; the claimant alleged she had hit her head on the back seat and a glass panel above and behind the head rest and sustained a head injury which manifested in concussion and symptoms included visual disturbance, loss of memory and vertigo; the Panel satisfied the claimant sustained a soft tissue injury to the back of her head but not a head injury resulting in an injury to the brain including concussion, post-concussive syndrome or memory loss.
Decision date: 17 August 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors Margaret Gibson and Tai-Tak Wan | Injury Module: Spine and upper limb
The claimant suffered injury in a motor accident on 6 October 2016 when her vehicle was hit at the side causing it to spin; the claimant underwent a total left hip replacement six months prior to the motor accident; revision surgery of the hip replacement was undertaken in 2018 due to impingement caused by the acetabular cup which protruded by 1 cm causing the iliopsoas tendon to spasm and causing left groin pain; the principal issue was whether the motor accident contributed to the impingement of the iliopsoas tendon and the need for revision hip surgery in 2018; Held — The Panel was not satisfied that the motor accident contributed to the impingement and the left groin pain; the claimant’s evidence and contemporaneous history was that the left groin pain developed 14 days after the motor accident; the contemporaneous notes recorded bruising to the right hip only which indicated that there was no direct trauma to the left hip; the pre-accident x-rays showed acetabular protrusion by 1 cm which could lead to iliopsoas impingement and groin pain at any time between 1 and 96 months after the initial hip surgery; findings made that the motor accident did not contribute to the impingement of the iliopsoas tendon and development of left groin pain; the consequences of the replacement hip surgery were not due to the motor accident; the Panel assessed the cervical spine at DRE 1 despite ongoing symptoms; findings made concerning the numerous treatment disputes referred to the Panel.
Decision date: 17 August 2022 | Panel Members: Principal Member John Harris, Medical Assessors Geoffrey Stubbs and Shane Moloney | Injury Module: Spine, upper limb and minor skin
Workers Compensation Medical Appeal Panel Decisions
Ear, Nose and Throat and related structures; appellant alleged error and assessment on the basis of incorrect criteria; table 6.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) provides the “criteria for rating permanent impairment due to facial disorders and/or disfigurement”; The Medical Assessor erred and made an assessment on the basis of incorrect criteria when he assessed the appellant under Class 1 as opposed to Class 2 of Table 6.1 of the Guidelines because the appellant has suffered loss of supporting structure of part of the face which necessitated replacement with a prothesis; on the basis of this finding of error, a re-examination was conducted; Medical Assessment Certificate revoked.
Decision date: 18 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Paul Curtin and Mark Burns | Body system: ENT
The appellant claimed the Medical Assessor (MA) failed to apply an appropriate section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction to account for the worker’s pre-existing impairment in the lumbar spine arising from prior work injuries; Held — it was open to the MA to make a one-tenth deduction having regard to the nature and extent of prior injuries; Medical Assessment Certificate confirmed.
Decision date: 18 August 2022 | Panel Members: Member Deborah Moore, Medical Assessors John Brian Stephenson and Drew Dixon | Body system: Lumbar spine
Appellant worker referred for assessment of whole person impairment (WPI) resulting from lumbar spine injury; appellant submitted in his appeal against the Medical Assessment Certificate (MAC) that the Medical Assessor (MA) did conduct adequate examination and that MA’s explanation for assessment did not adequately expose MA’s reasons for finding criteria of [4.27] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 (the Guidelines) not met and why the effect of injury on ADLs warranted 2% WPI rather than 3%; Held — MA did not examine appellant with respect to one criterion of [4.27] but that error did not affect outcome as appellant did not meet any of the other criteria; Appeal Panel found that MA provided no explanation for assessing appellant’s ADLs as 2% WPI but that error also did not affect outcome as evidence only warranted 2% WPI; MAC confirmed.
Decision date: 19 August 2022 | Panel Members: Member Marshal Douglas, Medical Assessors James Bodel and Gregory McGroder | Body system: Lumbar spine
The appellant alleged error on the basis that the Medical Assessor (MA) was in error in not examining the thoracis spine and that there was no basis for a deduction under section 323 of the Workers Compensation and Workplace Injury Management Act 1998 in respect of the lumbar spine; Held — the MA erred in failing to examine the thoracic spine; on the basis of this finding of error, a re-examination was conducted; Medical Assessment Certificate revoked.
Decision date: 22 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Brian Paul Stephenson and Margaret Gibson | Body system: Lumbar spine and thoracic spine
Appeal against the assessment of impairment where the appellant worker was assessed as falling within diagnosis-related estimate (DRE) lumbar category 4 with finding of no radiculopathy and failure to add modifiers for subsequent surgery; respondent appropriately conceded the error with respect to failure to add the appropriate allowances for subsequent surgeries but asserted that the assessment with respect to absence of radiculopathy was soundly based upon examination; Held — the limited signs observed upon examination constituted sound evidence of radiculopathy and the finding by the Medical Assessor was not open on the evidence; the Medical Assessment Certificate was revoked and additional allowance was made in respect of radiculopathy and the subsequent surgical procedures.
Decision date: 22 August 2022 | Panel Members: Member William Dalley, Medical Assessors Roger Pillemer and John Brian Stepheson | Body system: Lumbar spine and scarring
Taxi driver suffered injury to back and neck in a motor vehicle accident; following surgery he suffered erectile dysfunction and incontinence; Medical Assessor (MA) did not deal with question of whether he suffered cauda equina syndrome referred to in reports in file and did not consider paragraph 4.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed reissued 1 March 2021; re-examination; Held — MA’s assessment of digestive tract impairment did not take account of histology report of gastroscopy; assessment of upper extremity impairment where inconsistency on examination; Medical Assessment Certificate revoked.
Decision date: 23 August 2022 | Panel Members: Member Catherine McDonald, Medical Assessors John Garvey and Ross Mellick | Body system: Cervical spine, thoracic spine, lumbar spine, left upper extremity and digestive system
Lumbar spine injury; appeal by employer concerned the section 323 of the Workers Compensation and Workplace Injury Management Act 1998 deduction of one-tenth made by the Medical Assessor (MA); the appellant complained on appeal that the MA did not deduct the proportion related to a previous injury in 2019 and instead has improperly taken this injury into account with the overall assessment of impairment as a result of the injury referred to him being 10 April 2020; the appellant also complained on appeal that the MA failed to take proper account of the pre-existing condition or abnormality of the lumbar spine; Held — account must be taken of the contribution of the pre-existing injury in 2019 and the pre-existing condition and abnormality of the lumbar spine demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury on 10 April 2020 (being the referred date of injury); the available evidence at odds with a deduction of one-tenth and supported a deduction of one-half; Medical Assessment Certificate revoked.
Decision date: 23 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Drew Dixon and Gregory McGroder | Body system: Lumbar spine, left lower extremity and scarring
Motor Accidents Merit Review Decision
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); pre-accident weekly earnings; meaning of pre-accident weekly earnings under clause 4(1) of schedule 1 to the 2017 Act; whether significant change in earning circumstances under clause 4(3) and clause 4(2)(b) of schedule 1 to the 2017 Act; earnings received as an earner; distinction between sole trader and company under section 1.5.1 of the Corporations Act 2001; company separate legal entity; Held — the reviewable decision is remitted back to the insurer.
Decision date: 26 July 2022 | Merit Reviewer: Katherine Ruschen
Dispute about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accidents Injuries Act 2017 (2017 Act); claimant owned and operated a business as a wardrobe installer operating as a sole trader with an employee and multiple vehicles; calculation of weekly payments; clause 4(1) of schedule 1 to the 2017 Act definition of "Pre-accident weekly earnings"; meaning of “gross earnings”; consideration of ABZ v QBE Insurance and Aktop v Allianz Insurance; consideration of variable costs and fixed costs in the particular circumstances of the business; statutory construction; consideration of Saraswati v The Queen; Held — the reviewable decision is affirmed; “gross earnings” includes all relevant earnings less all business and work related expenses but before tax payable by the claimant.
Decision date: 27 July 2022 | Merit Reviewer: Stephen Boyd-Boland
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of pre-accident earning capacity under clause 7 of schedule 1 to the 2017 Act; meaning of post-accident earning capacity under clause 8 of schedule 1 to the 2017 Act; relevance of pre-accident weekly earnings to assessment of pre-accident earning capacity; Held — the reviewable decision is remitted back to the insurer.
Decision date: 10 August 2022 | Merit Reviewer: Katherine Ruschen
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); considered meaning of pre-accident weekly earnings (PAWE); clause 4(1) of schedule 1 to the 2017 Act; whether COVID-19 disaster payments are earnings as an earner; whether PAWE is to be adjusted by reason of the COVID -19 pandemic.
Decision date: 22 August 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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