Legal Bulletin No. 77
This bulletin was issued on 9 September 2022
Issued 9 September 2022
Welcome to the seventy-seventh 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 – Sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 – competing medical opinion as to the cause of the worker’s skin cancer – treatment of the medical evidence – main contributing factor within the meaning of s 4(b) of the Workers Compensation Act 1987 – adequacy of reasons 2 – Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 discussed and applied.
Decision date: 31 August 2022 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Collision between motorcycle and motor vehicle; both parties lived on the street where the accident occurred; motor vehicle emerging from a concealed driveway known to the claimant; allegation claimant was speeding and in a highly un-alerted state; conflicting expert evidence; Podrebersek v Australian Iron and Steel Pty Ltd and Council of the City of Greater Taree v Wells considered; Held — just and equitable that claimant’s contributory negligence be assessed at 0%; pre-existing condition; impact on entitlement to non-economic loss and loss of earning capacity; claimant’s venous condition made significantly worse by the motor vehicle accident.
Decision date: 16 August 2022 | Member: Robert Foggo
Settlement approval; 76-year-old female; passenger in an Urban Transit bus; driver of bus braked heavily causing the claimant to fall to the floor of the bus; sustaining acute L1 anterior wedge fracture of the lumbar spine and bilateral rib fractures; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; no claim for past or future economic loss; her proposed settlement is just, fair and reasonable; Held — the proposed settlement is approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017.
Decision date: 23 August 2022 | Member: David Ford
Dispute about whether costs should be paid in accordance with section 8.10(4) Motor Accident Injuries Act 2017 (2017 Act); costs incurred by the claimant in connection with review of medical assessment lodged by insurer; application for review rejected by Proper Officer; Awa v Independent News Auckland Ltd, San v Rumble (No 2), Ho v Professional Services Review Committee No 295 and AAI Ltd trading as GIO v Moon applied; quantum of costs agreed; parties ultimately agreed that costs should be paid in accordance with section 8.10(4) of the 2017 Act; Held — payment of the claimant’s costs in connection with the review permitted as exceptional circumstances exist that justify payment of those legal costs.
Decision date: 29 August 2022 | Member: Brett Williams
Damages claim; approval of settlement under section 6.23 of the Motor Accidents Injuries Act 2017; claimant self-represented; claimant sustained significant scarring to her left leg; it was pinned between the hot exhaust of a car that reversed into her knocking her over and the hot engine of her bike; insurer wholly admitted liability and made offer of settlement of almost $10,000 which the claimant accepted; offer made up of $3,200 in statutory benefits paid; about $800 in tax paid on statutory benefits and $6,000 for additional past loss of earnings; Held— settlement approved; no matter of principle; claimant had made good recovery; returned to full time work and changed roles; while scars easily visible and claimant was self-conscious of them they did not interfere with claimant’s work, home duties or activities of daily living and needed to active treatment; no likely claim for non-economic loss or future losses.
Decision date: 31 August 2022 | Member: Belinda Cassidy
Approval of settlement; appointed representative; non-economic loss; 88 years of age; lateral tibial plateau fracture; fractures of the bones of the right foot; fractured ribs; just fair and reasonable; section 6.23(1) of the Motor Accident Injuries Act 2017 (2017 Act);clause 7.37 of the Motor Accident Guidelines considered and applied; approval of settlement; section 6.23 of the 2017 Act;non-economic loss; claimant under legal incapacity as result of injury and age related cognitive deficit;daughter appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 90 years of age; 88 years of age at date of accident; left lateral tibial plateau fracture; multiple fractures of the calcaneus, talus and cuboid bones of the right foot; rib fractures; claimant moved into residential care; Held – settlement of claim in sum of $200,000 approved; settlement just fair and reasonable.
Decision date: 1 September 2022 | Member: Susan McTegg
Damages; economic loss; consistency; exaggeration; acromioclavicular joint; neck; thoracic spine, lumbar spine; right knee; depressive condition; reliability claimant’s evidence; 28 years of age at date of accident; residual earning capacity; assessment of damages; Motor Accident Injuries Act 2017; motorbike accident; claimant age 28 at date of accident and 33 at date of assessment; truck driver; dislocation right acromioclavicular joint; injury to neck, thoracic spine, lumbar spine, right knee, psychological injury; claimant not returned to work; consistency of presentation; pain behaviour; feigning; exaggeration; whether any residual earning capacity; Held — claimant pain focused and pain avoidant; lack of consistency and exaggeration; claimant developed chronic pain condition with psychological overlay; damages assessed on basis unfit for work to date; unfit for work for next two years; thereafter fit for sedentary work for 20 hours per week until age 67 years; damages assessed in sum of $861,857.62.
Decision date: 2 September 2022 | Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Claim for lump sum compensation; whether allegation of the resolution of an aggravation was a bar to the matter being referred to a Medical Assessor; whether the Commission has power to determine a claim for lump sum compensation; effect of Workers Compensation Legislative Amendment Act 2018 amendments; applicant injured in 2014; liability accepted but respondent’s subsequent medical advice was that aggravation had ceased prior to operative treatment in 2020; whether pathology related to the operative treatment was a consequential condition; Held — the 2020 surgery was no more than operative treatment for the subject 2014 injury; Shanka v Ceva Logistics applied; Jaffarie v Quality Castings Pty Ltd considered; observations on medical opinion that injury no longer the main contributing factor; whether aggravation had ceased was a matter for the Medical Assessor; matter remitted for assessment.
Decision date: 23 August 2022 | Member: John Wynyard
Claims for injuries to back and legs; claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act);medicinal cannabis;consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the prescription of medicinal cannabis is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 20 July 2009 which arose out of or in the course of his employment with the respondent; Honarvar v Professional Painting AU Pty Limited, Rose v Health Commission, Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held — the prescription of medicinal cannabis is recently necessary medical treatment so long as approval is obtained from the Therapeutic Goods Administration as a result of the applicant’s back injury; the evidence only allows the Commission to order payment for the costs of and incidental to the applicant being prescribed with medicinal cannabis into the future for a period of 73 days; award that the respondent pay the applicant’s past section 60 of the 1987 Act expenses in relation to the prescription of medicinal cannabis; award that the respondent pay the applicant’s future section 60 of the 1987 Act expenses for 73 days in relation to the prescription of medicinal cannabis; no orders or findings made regarding the applicant’s future section 60 of the 1987 Act expenses in relation to the prescription of medicinal cannabis beyond the period of 73 days.
Decision date: 25 August 2022 | Member: Gaius Whiffin
Applicant worker sought reconsideration or recission of a 2009 Certificate of Determination (COD) to enable an appeal to proceed against a medical assessment certificate (MAC) on which the COD was based; pursuant to the COD, the applicant was entitled to section 66 compensation of the Workers Compensation Act 1987 (1987 Act) in respect of 6% whole person impairment (WPI) as a result of injury to the lumbar spine in 2004; the foreshadowed appeal against the MAC on the basis of deterioration pursuant to section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the parties agreed in 2020 based on further medical evidence that the applicant had sustained 11% WPI as a result of the 2004 lumbar spinal injury; however, notwithstanding the fact the applicant was paid the additional section 66 compensation of the 1987 Act to which he was entitled as a result of the 11% WPI assessment the agreement between the parties was not formalised by a complying agreement or COD; the applicant sought section 67 compensation of the 1987 Act for pain and suffering based on the 11% WPI agreed between the parties; issues as to whether the 2009 COD should be rescinded or reconsidered and whether the applicant was entitled to section 67 compensation of the 1987 Act; having regard to the repeal of that section by the Workers Compensation Legislation Amendment Act 2012; consideration of clause 15 of Part 19H of Schedule 6 of the 1987 Act, and clause 10 of Schedule 8 of Workers Compensation Regulation 2016; Held — the 2009 COD should be rescinded and a COD issued reflecting the agreement between the parties that the applicant sustained 11% WPI as a result of the 2004 lumbar spinal injury; the applicant was entitled to compensation for pain and suffering pursuant to section 67 of the 1987 Act; award in favour of the applicant for such compensation.
Decision date: 29 August 2022 | Member: Brett Batchelor
Application for leave to rely on un-notified matters pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; respondent never issued dispute notice with respect to consequential condition in the applicant’s upper digestive tract; leave sought by the respondent to raise a dispute and allow surveillance footage to be provided to Medical Assessor; opposed by the applicant; no explanation for delay, lack of merit and substance in the proposed dispute; respondent’s medical evidence lacking in probative value; prejudice to the applicant outweighed that of the respondent; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services and Yacoub v Pilkington (Australia) Ltd discussed and applied; Held — leave to rely on unnotified matter refused; surveillance footage of little probative value but admitted into evidence; to be provided to the Medical Assessor in the interests of justice.
Decision date: 29 August 2022 | Principal Member: Glenn Capel
Claim for permanent impairment; claim against second respondent discontinued; accepted claim against first respondent for injury to right upper extremity (right shoulder); disputed claim for consequential condition of left upper extremity (left shoulder) as result of overuse due to favouring injured right shoulder; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of complaints in respect of left shoulder; consideration of Wiki v Atlantis Relocations (NSW) Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang v Bates, Tudor Capital Australia Pty Limited v Christensen and Nguyen v Cosmopolitan Homes; Held — the applicant has not satisfied the onus of establishing consequential condition of the left upper extremity as a result of injury to the right upper extremity; award for the first respondent with respect to the claim for consequential condition of the left upper extremity; claim for impairment as a result of injury to the right upper extremity remitted to President for referral to Medical Assessor.
Decision date: 30 August 2022 | Senior Member: Kerry Haddock
Claim for weekly payments of compensation and medical expenses due to psychological injury; respondent relies upon section 11A defence of the Workers Compensation Act 1987 that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to the provision of employment benefits; whether being able to work despite not being properly vaccinated against covid 19 is a right or a benefit; reference to Kassam v Hazzard; Henry v Hazzard on the ‘right to work’ and the ‘right to earn a living’; whether action taken by the respondent with respect to the provision of an employment benefit was reasonable; reference to Irwin v Director General of School Education and Northern NSW Local Health Network v Heggie; Held — no common law principle of the ‘right to work’; allowing the worker to work while not vaccinated was an employment benefit; action taken by the respondent not reasonable with respect to the provision of the employment benefit of allowing the worker to work while not vaccinated; award of weekly payments of compensation for total incapacity and the payment of medical expenses.
Decision date: 30 June 2022 | Senior Member: John Isaksen
Workers Compensation President’s Delegate Decision
Calculation of pre-injury average weekly earnings (PIAWE); applicant a short-term worker; consideration of clauses 2 and 4 of Schedule 3 to the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation 2016; consideration of what worker could have expected to earn.
Decision date: 25 August 2022 | President’s Delegate: Parnel McAdam
Motor Accidents Medical Review Panel Decision
Medical assessment of whole person impairment (WPI) and claimant’s review under section 7.26 of the Motor Accident Injuries Act 2017 (2017 Act);original Medical Assessor (MA) had assessed WPI at 7% for left knee injury (2%) and neck injury (5%) and 0% for a back injury with “no structural lesion”; MA’s finding had indicated the possibility of radicular symptoms flowing from the lower back injury which would have provided a 5% WPI and a total WPI of greater than 10%; parties agreed; pursuant to section 7.25 of the 2017 Act that the left knee and neck injury attracted a 7% WPI and there was no need to assess those; the Panel proceeded on the basis there was no issue as to causation of the back injury and a re-examination took place; Held — the examining Panel Assessors found dysmetria; non uniform range of motion between lateral flexion to the left and right and between flexion and extension; the claimant therefore had a WPI of greater than 10%; no issue as to principle.
Decision date: 25 August 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors Mohammed Assem and Paul Curtin | Injury Module: Spine and lower limb
Workers Compensation Medical Appeal Panel Decisions
Appeal against section 323 of theWorkplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction of 1/10th; whether reliance on statutory presumption of section 323(2) of the 1998 Act erroneous; whether the Medical Assessor (MA) gave adequate reasons; whether MA applied incorrect test; Held — MA failed to consider large body of evidence that showed worker was already under psychiatric care when she commenced employment; MA made error of fact and applied incorrect criteria in applying the statutory 1/10th deduction pursuant to section 38(2) of Workers Compensation Act 1987 as no shortage of medical evidence already before him as to the pre-existing condition which was at odds with the 1/10th assessment; MA failed to give adequate reasons as to the deduction accordingly; Western Sydney Local Health District v Chan and Campbelltown City Council v Vegan applied; MA applied wrong test in considering whether the employment injury had significantly aggravated the worker’s pre-existing condition rather than determining whether the pre-existing condition had itself caused a deductable impairment; Ryder v Sundance Bakehouse applied; Held — Medical Assessment Certificate revoked; consideration of tension between section 323 of the 1998 Act and Chapter 11.10 of the Workers Compensation Guidelines (Guidelines); written submissions called for; Marks v Secretary, Department of Communities and Justice (No 2), Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd and Ryder v Sundance Bakehouse Pty Ltd considered; Chapter 11.10 of the Guidelines found to be inconsistent with section 323 of the 1998 Act; section 323(1) of the 1998 Act applied and deduction increased to 20%.
Decision date: 23 August 2022 | Panel Members: Member John Wynyard, Medical Assessors Patrick Morris and Michael Hong | Body system: Psychological/psychiatric
Assessment of permanent impairment in respect of consequential condition in the right shoulder; the Medical Assessor (MA) made a 4/5th deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for osteoarthritis; a deduction can only be made if the pre-existing condition; abnormality or injury has contributed to the level of permanent impairment assessed; the deduction must not be at odds with the available evidence; the MA deducted 4/5th on the basis of a constitutional osteoarthritic condition with no available evidence to suggest that the osteoarthritic condition pre-existed the injury; there was available evidence that supported a 1/10th deduction being radiological evidence consistent with a past fracture and the degenerative change secondary to that past trauma has contributed to the assessment of the overall level of permanent impairment; Held — Medical Assessment Certificate revoked.
Decision date: 25 August 2022 | Panel Members: Member Jane Peacock, Medical Assessors Drew Dixon and David Crocker | Body system: Cervical spine, left upper extremity and right upper extremity
Appellant worker was referred for assessment of permanent impairment from injury to right ankle and foot and consequential condition in right knee and scarring; appellant contended that Medical Assessor (MA) did not comply with referral because he expressed an opinion regarding whether the appellant’s injury and consequential condition was work related in the circumstance where the parties agreed they were; appellant also contended that with respect to the deduction MA made under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the MA did not have regard to all the medical evidence and did not provide adequate reasons for the deduction he made; Appeal Panel considered that MA’s remarks relating to causation were unnecessary; MA ultimately accepted appellant had suffered injury and consequential condition and assessed whole person impairment resulting from that; Appeal Panel found that MA did not have regard to all the medical evidence and that MA did not provide adequate reasons for section 323 deduction of the 1998 Act in that he did not identify a pre-existing condition and as a consequence the Medical Assessment Certificate (MAC) contained demonstrable errors; Held — Appeal Panel found based on the medical evidence that appellant had extensive osteoarthritis in her knee prior to her injury and this justified the deduction the MA made; although the MAC contained demonstrable errors there was no difference in outcome; MAC upheld.
Decision date: 25 August 2022 | Panel Members: Member Marshal Douglas, Medical Assessors Mark Burns and James Bodel | Body system: Right lower extremity and scarring
Applicant referred to Medical Assessor (MA) for assessment of whole person impairment of the right upper extremity, left upper extremity and skin as a result of the injury on 17 August 2016; applicant submitted that the MA had failed to consider the nerve conduction studies as well as complaints of pain, range of motion and loss of strength and the MA did not provide valid nor adequate reasoning for his conclusions; Held — Panel satisfied that the MA failed to properly assess medial nerve function and that this failure was an error; Panel considered that the MA had concluded that the appellant did not have carpal tunnel syndrome (CTS) without providing adequate reasons and considering adequately the many presentations of CTS; re-examination; MAC revoked.
Decision date: 26 August 2022 | Panel Members: Member Carolyn Rimmer, Medical Assessors Margaret Gibson and J Brian Stephenson | Body system: Right upper extremity, left upper extremity and scarring
Motor Accidents Merit Review Decision
Statutory weekly benefits; Division 3 of the Motor Accidents Injuries Act 2017 (the MAI Act); statutory benefits claim Motor vehicle accident; pre-accident weekly earnings (PAWE); Merit Review; PAWE calculation; change of circumstances; full time employment offered before accident; claimant unable to accept due to injuries; earner previously casual employee; casual earnings rate; Covid 19; job keeper payment not included in PAWE.
Decision date: 30 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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