Legal Bulletin No. 81
This bulletin was issued on 7 October 2022
Issued 7 October 2022
Welcome to the eighty-first 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.
Motor Accidents non-Presidential Member Decisions
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant now 45 years of age; injured when his motor vehicle was struck by a vehicle; severe injury to the left ankle; soft tissue injuries to the neck and back; claimant elects not to pursue claim for non-economic loss; claimant employed as a barber and unable to work full-time without significant pain; accident capacity for work; entitlement to costs where not legally represented but claim prepared by an independent advisor; Held – claimant sustained serious injury to his ankle and soft tissue injuries to the neck and back; lifestyle and work capacity curtailed; settlement for economic loss approved.
Decision date: 14 September 2022| Member: Michael Inglis
Assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act 2017; non-economic loss and past loss of earnings assessed; elderly claimant; physical injuries not in dispute; psychological injury and cognitive impairment in dispute; Hancock v East Coast Timbers Products Pty Ltd; Davis v Council of the City of Wagga Wagga, Mason v Demasi, Hodgson v Crane, Nominal Defendant v Lane, Brown v Lewis, Reece v Reece, RACQ Insurance Ltd v Motor Accidents Authority (NSW) (No 2), Medlin v State Government Insurance Commission, Husher v Husher, Mead v Kerney considered and applied; Held – the amount of damages for the claim is $311,854.14; the amount of the claimant’s costs in the matter is $31,207.50 inclusive of GST.
Decision date: 27 September 2022| Member: Anthony Scarcella
Workers Compensation non-Presidential Member Decisions
Lump sum death benefit; no other persons identified as dependant except the respondent; Held –the deceased suffered an injury within the meaning of sections 4 and 9A of the Workers Compensation Act 1987.
Decision date: 30 August 2022| Senior Member: Elizabeth Beilby
Lump sum death benefit; Held – no other persons identified as dependant except the respondent.
Decision date: 31 August 2022| Senior Member: Elizabeth Beilby
The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury sustained to his cervical spine (and scarring), injury sustained to his nervous system (brain injury) and consequential conditions in his lumbar spine and urinary system; the parties agree the applicant sustained 30% whole person impairment resulting from injury sustained to his cervical spine (and scarring) in the course of his employment with the respondent but the respondent disputes the applicant sustained injury to his nervous system (brain injury) in the course of his employment with the respondent and consequential condition in his lumbar spine and urinary system; Held – the applicant sustained injury to his nervous system (brain injury) in the course of his employment with the respondent with his employment being a substantial contributing factor to injury; the applicant sustained consequential condition in his urinary system; award for the respondent in respect of allegation of consequential condition in the lumbar spine; the applicant’s claim for permanent impairment compensation resulting from injury to his nervous system (brain injury) on 24 November 2011 in the course of his employment with the respondent and consequential condition in his urinary system is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 23 September 2022| Member: Jacqueline Snell
Claim for weekly payments of compensation for injury to the lumbar spine; worker paid benefits for two years until respondent discovers evidence that injury may not have been sustained at work; Held – upon review of all available evidence worker did sustain an injury in the course of employment with the respondent; award of weekly payments of compensation for worker having no current work capacity.
Decision date: 23 September 2022| Member: John Isaksen
Lump sum death benefit; apportionment; Held – the applicant, Angela Mele, was dependent for support upon the deceased, Fulvio Mele as at the date of his death in 2017; there was no other person who was dependent upon the deceased at the date of death; the lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) as of the date of death was $775,600; the lump sum of $775,600 is to be paid directly to the applicant pursuant to section 85A of the 1987 Act; the claim is amended to include a claim for interest on the lump sum benefit; award for the respondent in respect of the claim for interest.
Decision date: 23 September 2022| Senior Member: Elizabeth Beilby
Application by uninsured employer to dismiss notice issued by iCare pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act); reliance on section 14 of the 1987 Act; allegation that worker was driving a taxi while prohibited from doing so; worker was injured in motor vehicle accident when another driver ran a red light; consideration of Gardoll v RJ Fletchers International Pty Ltd, Taylor v Commissioner for Railways, Karim v Poche Engineering Services Pty Ltd, Johnson v Marshall Sons & Co Ltd, Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour, Sawle v Macadamia Processing Co Pty Ltd, Clyde v State of NSW (TAFE Commission); Held – the applicant’s application to dismiss the notice issued by the first respondent pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act) is refused; the applicant is to pay to the first respondent the sum of $51,500.68 in accordance with the notice dated 23 March 2022 issued pursuant to section 145(1) of the 1987 Act.
Decision date: 26 September 2022| Senior Member: Kerry Haddock
Claim for interest on death benefit, apportioned by consent between first and second respondents; consideration of Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Pheeney v Doolan; Bennett v Jones & Anor, Kaur v Thales Underwater Systems Pty Ltd, Zhang v Universe Investments Pty Ltd t/as Kings Seafoods, Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited, Cameron v StateCover Mutual, Riverdene Equine Hospital Pty Ltd v Tupani, Cameron v Enviro Pallets Pty Ltd; Held – lump sum benefit apportioned in accordance with agreement between first and second respondents; award of interest on lump sum from 27 July 2022 when claim duly made to 8 August 2022 when orders made at a rate 2% above the relevant Reserve Bank of Australia cash rate.
Decision date: 26 September 2022| Senior Member: Kerry Haddock
Claim for weekly compensation and lump sum compensation for injury alleged to have happened on 11 September 2019 at a property rented by first respondent and in the employ of the first respondent; conflicting witness statements and histories in medical records as to where injury occurred; Held – awards for first and second respondents because the applicant did not discharge his onus of proof that injury occurred at the property rented by the first respondent; findings that the applicant and various witnesses’ evidence was unreliable due to inconsistencies; Nguyen v Cosmopolitan Homes applied.
Decision date: 27 September 2022| Principal Member: Josephine Bamber
Factual dispute regarding the injurious event; award for the applicant; Held –the applicant sustained an injury to his right shoulder, cervical spine, lumbar spine and consequential condition in the left shoulder and a secondary psychological condition arising from the pleaded event.
Decision date: 27 September 2022| Senior Member: Elizabeth Beilby
Claim for lump sum compensation in respect of undisputed injury to left foot and ankle and disputed complex regional pain syndrome (CRPS) left leg injury and disputed consequential lumbar spine and right foot and ankle conditions; consideration of Paric v John Holland (Constructions) Pty Ltd, Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates; Held – applicant suffered CRPS left leg injury and consequential lumbar spine and right foot and ankle conditions as a result of subject work injury; matter remitted to President for referral to MA for assessment of degree of permanent impairment.
Decision date: 27 September 2022| Member: Michael Wright
Claim under section 60 of the Workers Compensation Act 1987 for total knee replacement surgery; respondent agreed it was a necessary procedure but claimed that the injury was “minor” on a background of pre-existing degenerative disease and did not make a material contribution to the need for surgery; Held – that the incident was not “minor” the applicant having had a functioning knee before the injury which rendered him symptomatic and the need for surgery; opinions of the applicant’s treating specialist and Independent Medical Examiner accepted; respondent to pay the costs of knee surgery.
Decision date: 28 September 2022| Member: Deborah Moore
Motor Accidents Medical Review Panel Decisions
Review of an assessment of a claim for damages under Motor Accidents Compensation Act 1999; previous assessment of 16% whole person impairment for major depressive disorder; Held – Review Panel concluded all injuries referred for assessment were not caused by the motor accident; assessment of degree of whole person impairment was therefore not required.
Decision date: 3 August 2022| Panel Members: Chairperson Wayne Mason, Dr Doron Samuell and Dr Sharon Reutens | Injury module: Mental and Behavioural
Assessment of minor injury under the Motor Accident Injuries Act 2017; the claimant suffered injury in the motor accident on 24 February 2021; the claimant suffered inter alia psychological injury; Assessor determined post-traumatic stress disorder and major depressive disorder caused by the accident; not minor injuries; Held – treatment in relation to depression in 2020 referred to in clinical notes not treatment provided to claimant; criteria for post-traumatic stress disorder not met; claimant suffering from major depressive disorder caused by the accident; claimant suffered non minor injury.
Decision date: 6 September 2022| Panel Members: Member Susan McTegg, Dr Paul Friend and Dr Chris Rikard-Bell | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Psychological injury; application of the Psychological Impairment Rating Scale; Jenkins v Ambulance Service of NSW, Ferguson v State of NSW, Parker v Select Civil considered; section 323 of theWorkplace Injury Management and Workers Compensation Act 1998; Bojko v ICM Property Service Pty Ltd, Ryder v Sundance Bakehouse discussed; diagnosis of three conditions including recurrent depression and identification of symptoms; Held – Medical Assessment Certificate confirmed.
Decision date: 26 September 2022| Panel Members: Member Catherine McDonald, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological
Whether Medical Assessor (MA) made deduction under section 323(1) of theWorkplace Injury Management and Workers Compensation Act 1998 based on assumption rather than the requirements of section and NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; whether MA considered all relevant evidence with respect to the effect of worker’s injury to his lumbar spine on his activities of daily living; Held –Appeal Panel found Medical Assessment Certificate (MAC) contained demonstrable error; MAC revoked.
Decision date: 26 September 2022| Panel Members: Member Marshal Douglas, Dr John Brian Stephenson and Dr David Crocker | Body system: Cervical Spine and Lumbar Spine
Worker had bariatric surgery following weight gain after injury to lumbar spine; Medical Assessor assessed him as class 1 in table 6-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edwhereas the two independent Medical Examiners assessed him as class 2; Held – Appeal Panel satisfied that worker fitted the criterion in class 1 and there was no demonstrable error in the Medical Assessment Certificate (MAC) and the assessment was not made on the basis of incorrect criterial; MAC confirmed.
Decision date: 26 September 2022| Panel Members: Member Carolyn Rimmer, Dr Mark Burns and Dr John Garvey | Body system: Lumbar Spine and Digestive System
Injury to shoulders; extent of appropriate section 323 of theWorkplace Injury Management and Workers Compensation Act 1998 deduction when there had been a long series of pre-injury dislocations described to doctors in the early stages of treatment supported by radiology; no adequate reasons given for two-thirds deduction for contralateral shoulder; reasons given with respect to scarring; Held – Medical Appeal Certificate revoked.
Decision date: 26 September 2022| Panel Members: Member Catherine McDonald, Dr Margaret Gibson and Dr Brian Stephenson | Body system: Right and Left Upper Extremity and Scarring
Motor Accidents Merit Review Decisions
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); failure to provide certificate of fitness under section 3.15 of the 2017 Act; clause 4.63 Motor Accident Guidelines Version 8.2 Effective from 8 April 2022; first entitlement period, sections 3.5 and 3.6 of the 2017 Act; merit review where no internal review section 7.11 of the 2017 Act; purpose of merit review; power of merit reviewer, section 7.13 of the 2017 Act; meaning of loss of earnings: schedule 1, clause 3 of the 2017 Act; meaning of post-accident earning capacity; schedule 1, clause 8 of the 2017 Act; income from personal exertion; whether interest payable on statutory benefits; Held – the reviewable decision is affirmed.
Decision date: 23 September 2022| Merit Reviewer: Katherine Ruschen
Merit review; dispute about whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1) of the Motor Accident Injuries Act 2017 (2017 Act); whether travel expenses are reasonable and necessary in order to obtain treatment; Held – section 3.24(1)(b) of the 2017 Act; the reviewable decision is affirmed.
Decision date: 23 September 2022| Merit Reviewer: Katherine Ruschen
Claim for statutory benefits made under Motor Accident Injuries Act 2017 (2017 Act); claimant a pedestrian aged 6 years old sustained serious injury including head and brain injury; parents of claimant had no family support in Australia and one of claimant’s grandparents flew from overseas to provide support to parents and claimant’s four other siblings all under the age of 8; claimant sought reimbursement of his grandmother’s airfare ($1,300) in his statutory benefits claim; insurer denied liability to pay on basis expense was not a treatment and care expense under section 3.24(1)(c) of the 2017 Act; issue as to jurisdiction; not a medical assessment matter as no dispute about whether expense reasonable and necessary or related to accident; no dispute about the cost of the airfare; only issues were whether the expense was an expense incurred in connection with treatment and care provided to the claimant and if so whether the insurer had a liability to pay it; Held – Merit Review jurisdiction under schedule 2(1)(i) of the 2017 Act including inherent power to determine whether a service was treatment and care alternatively a Member would have power to determine the issue under schedule 2(3)(n) of the 2017 Act on the basis it was an issue of liability for ‘part of a claim’; grandmother provided attendant care services to claimant during his hospital stay on a gratuitous basis; her airfare was an expense incurred in connection with the attendant care service she provided however payment was not permitted under section 3.24(1) of the 2017 Act and was expressly prohibited under section 3.25 of the 2017 Act.
Decision date: 26 September 2022| Merit Reviewer: Belinda Cassidy
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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