Legal Bulletin No. 83
This bulletin was issued on 21 October 2022
Issued 21 October 2022
Welcome to the eighty-third 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 LexisNexis. Any legislative updates are provided at the base of the Bulletin.
Motor Accidents non-Presidential Member Decisions
Assessment of claim for damages under Motor Accident Injuries Act 2017; liability wholly admitted; past losses of earnings; future loss of earning capacity; award as mathematical calculation rather than a buffer; Held – the amount of damages assessed in respect of this claim is $587,556; the amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim assessed in accordance with the Motor Accidents Compensation Regulation 2015 is$62,403 inclusive of GST.
Decision date: 22 July 2022| Member: Gary Patterson
Injured person wholly or mostly at fault; single vehicle accident; motorcycle leaves roadway; allegation rear tyre deflation loss of control, speed and condition of road surface; Held – for the purposes of sections 3.28 or 3.36 of the Motor Accident Injuries Act 2017 the motor accident was caused mostly by the fault of the injured person.
Decision date: 4 October 2022| Member: Shana Radnan
Motor Accident Injuries Act 2017; claim for statutory benefits; denial of liability after 26 weeks on basis that claimant wholly or mostly at fault; claimant driving car on General Holmes Drive when she lost control of her car; insurer conceded claimant lost control due to pothole in the road; insurer said claimant wholly at fault or mostly at fault; claimant travelling at 60 km/hr in a 60 km/hr zone merging from lane 2 to lane 3 as the vehicle in front (a large tanker) merged from lane 3 to lane 2; claimant said the vehicle in front covered the pothole and prevented her from taking action to avoid it;Held – claimant not wholly at fault as accident caused by state of the roadway; claimant not mostly at fault because she was not speeding and keeping a proper lookout and driving with the flow of traffic.
Decision date: 14 October 2022| Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
The applicant was employed by the respondent as a truck driver; he alleged psychological injury said to have resulted from alleged comments made to him in the workplace by fellow employees about his sexuality; a psychological condition was not in dispute; the respondent raised a
section 11A of the Workers Compensation Act 1987 defence saying that the applicant’s condition arose out of his termination; Held - whilst his dismissal was a contributing factor his condition was not wholly or predominantly caused by the action taken by the respondent in dismissing the applicant as required by the section; accepting that comments had been made to the applicant over a period about his sexuality and that such comments led to the applicant developing a psychological condition the applicant was entitled to compensation.
Decision date: 6 July 2022| Member: Michael McGrowdie
Lump sum death benefit; Held – no other persons identified as dependant except the respondent.
Decision date: 25 August 2022| Senior Member: Elizabeth Beilby
Applicant is in receipt of weekly compensation for psychological injury sustained when he was a police officer; claims entitlement to second award of weekly compensation for physical injuries sustained in the same employment; Held – applicant has a separate and distinct incapacity for employment from his physical injuries as opposed to from his psychological injury; Cordina Chicken Farms Pty Ltd v Thoa Hong Le discussed; applicant entitled to separate award of weekly compensation; award entered at the maximum statutory rate for a worker with a dependent spouse from 20 August 2021 to date and continuing.
Decision date: 6 October 2022| Principal Member: Josephine Bamber
Reconsideration application; section 57 of the Personal Injury Commission Act 2020; Samuel v Sebel Furniture Limited applied; Held - that application for reconsideration refused.
Decision date: 7 October 2022| Member: Karen Garner
Claim for section 60 expenses for cervical spine surgery; whether worker injured his neck in the same incident; background of treatment for neck condition; Nguyen v Cosmopolitan Homes considered; credit findings in the absence of cross-examination; NSW Police Force v Winter discussed; material contribution per Murphy v Allity Management Services; Held – award for the respondent.
Decision date: 7 October 2022| Member: Catherine McDonald
Claim pursuant to section 60 of the Workers Compensation Act 1987 for surgery to the left shoulder; respondent agreed the applicant had injured her left shoulder but claimed that her symptoms were caused by a pre-existing degenerative disease in the cervical spine and there was no reasonably necessary need for surgery; Held –the incidents had resulted in impingement in the left shoulder and the proposed treatment was reasonably necessary; opinions of the applicant’s treating specialist and independent medical examiner accepted; respondent to pay the costs of left shoulder surgery.
Decision date: 10 October 2022| Member: Carolyn Rimmer
Claim for aggravation, acceleration, exacerbation or deterioration of psychological disease injury; respondent maintained that the applicant’s condition had not been made more grave or more serious by events occurring after his return to pre-injury duties; consideration of Federal Broom Co Pty Ltd v Semlitch, NSW Police Force v Gurnhill, Wilkes v Secretary, Department of Education (incorrectly named as Department of Education & Communities) and Kelly v Western Institute NSW TAFE Commission;parties agreed that if matter determined in favour of applicant respondent would adjust payments of weekly compensation accordingly; Held – the applicant sustained the aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022; the respondent is to pay the applicant’s costs as agreed or assessed, including increase of 15% for complexity.
Decision date: 11 October 2022| Senior Member: Kerry Haddock
Reconsideration application; applicant previously assessed at 6% whole person impairment and submits that additional material since then confirms her condition has deteriorated such that the commission should rescind the earlier certificate of determination pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998; Held – applicant’s condition has deteriorated since earlier Certificate of Determination (COD); the Personal Injury Commission in exercising its discretion rescinds the COD; it is in the interest of justice that the applicant’s mental condition be reassessed.
Decision date: 11 October 2022| Member: Phillip Young
Whether a revoked Medical Assessment Certificate (MAC) is evidence that the worker is a “worker with high needs”; whether a worker who has been assessed for permanent impairment compensation is entitled to a further medical assessment to establish that he is a “worker with high needs” or surpasses the section 39 of the Workers Compensation Act 1987 threshold to permit continuation of weekly payments after five years; Merchant v Shoalhaven City Council considered and applied; Held – the revoked MAC had no statutory force and effect in respect of the degree of permanent impairment of the worker; the new MAC issued by the Medical Assessment Panel was binding and conclusive as to that question; that the applicant was not entitled to a further medical assessmentby operation of section 322A of the Workplace Injury Management and Workers Compensation Act 1998.
Decision date: 11 October 2022| Member: Paul Sweeney
Motor Accidents Medical Review Panel Decisions
Review of Medical Assessment underthe Motor Accidents Injuries Act 2017; dispute as to whether loss of pregnancy was caused by motor accident on 3 June 2019 and whether it is a minor injury; Held – original Medical Assessor’s Certificate revoked and replaced with Certificate finding that the loss of pregnancy was not caused by the motor accident.
Decision date: 27 July 2022| Panel Members: Principal Member Josephine Bamber, Dr Ian Cameron and Dr John Schmidt | Injury module: Female Reproductive
Review of Medical Assessment underthe Motor Accidents Injuries Act 2017 (2017 Act); dispute as to whether various orthopaedic injuries sustained in motor accident on 3 June 2019 are minor injuries; Held – original Medical Assessor’s Certificate (MAC) revoked and replaced with MAC that injuries to the cervical spine, lumbar spine, right hip, head, right shoulder, right knee and right elbow are minor injuries for the purposes of the 2017 Act.
Decision date: 27 July 2022| Panel Members: Principal Member Josephine Bamber, Dr Ian Cameron and Dr John Schmidt | Injury module: Upper Limb and Lower Limb
The claimant sustained a partial tear of the pectoralis major muscle at the myotendinous junction in a motor accident on 5 March 2017; the medical assessment concerned the extent of permanent impairment; on examination the claimant showed gross restriction of movement of the right upper limb; the claimant’s presentation before the Medical Assessors (MA) was inconsistent because the variation in movement was extensive and fell well outside slight deviations that may be expected on repeated testing; the lack of movement was also inconsistent with surveillance; further, there was no wasting in the right upper limb which is grossly inconsistent with the purported negligible range of movement displayed by the claimant to the MAs; the absence of wasting was consistent with adequate daily use; the partial tear could not medically explain the gross restriction in right shoulder/upper limb movement; Held – Panel accepted that the partial tear would cause some loss of adduction; having rejected the claimant’s account of the extent of the loss of range of movement as being inconsistent the assessment was modified in accordance with Clause 1.40 of the Motor Accident Permanent Impairment Guidelines; the partial tear of the pectoral major muscle was assessed as analogous to synovial hypertrophy (mild) glenohumeral joint at 4% permanent impairment.
Decision date: 4 October 2022| Panel Members: Principal Member John Harris, Dr Rhys Gray and Dr Shane Moloney | Injury module: Spine and Upper Limb
The claimant was injured in a motor vehicle accident on 12 June 2017; the dispute related to the assessment of whole person impairment (WPI); whether cervical spine surgery causally related to accident; Motor Accident Compensation Act 1999; Held – anterior cervical discectomy and fusion causally related to accident; at time of accident pre-existing cervical spondylosis but earlier radicular complaints had resolved; cervical spine assessed as Diagnosis Related Estimates (DRE) category IV or 25% WPI; pre-existing impairment assessed as DRE category II or 5% WPI; 20% WPI in respect of cervical spine caused by accident; no dispute as to findings of 5% WPI for lumbar spine; scarring not easily seen and does not concern claimant; assessed at 0% WPI; injures caused by accident give rise to WPI greater than 10%.
Decision date: 7 October 2022| Panel Members: Member Susan McTegg, Dr Geoffrey Curtin and Dr Drew Dixon | Injury module: Spine and Minor Skin
The claimant suffered injury in a motor vehicle accident in 26 July 2018; assessment of permanent impairment under the Motor Accident Injuries Act 2017; lumbar spine, cervical spine, left shoulder, right shoulder, abdomen; treatment dispute about magnetic resonance imaging (MRI) of cervical spine and chiropractic treatment; Held – injury to left and right shoulder in accordance with referred pain from neck (Nguyen principle); 2% whole person impairment (WPI) assessed for each shoulder; soft tissue injury to cervical spine assessed 0% WPI; soft tissue injury to lumbar spine 0% WPI; musculo-skeletal injury to the abdomen resolved; total WPI 4%; MRI cervical spine reasonable and necessary diagnostic tool to determine if claimant had sustained a disc prolapse, annular disc tear or ligamentous injury; need for MRI scan caused by the accident; chiropractic treatment including mobilisation, deep tissue massage and dry needling accepted treatment modalities and reasonable and necessary treatment for injury; need for past chiropractic treatment caused by accident.
Decision date: 12 October 2022| Panel Members: Member Susan McTegg, Dr Geoffrey Curtin and Dr Drew Dixon | Injury module: Spine, Upper Limb and Lower Limb
The claimant suffered injury in a motor vehicle accident in 1 April 2016; assessment of permanent impairment under the Motor Accident Compensation Act1999; fracture of the right third metatarsal; right foot/leg injury to superficial peroneal nerve; dispute as to whether subsequent falls and resulting injury to right shoulder; right ankle; right hip; right knee; and lumbar spine due to giving way of right leg causally related to injury sustained to right foot in accident; Held – no complaint of back pain and no assessable impairment; no abnormal findings and no assessable impairment in right hip, right knee or right ankle; injury to superficial peroneal nerve; no mechanism to explain why isolated cutaneous sensory loss would cause recurrent giving way; the accident has no more than a negligible contribution to the injuries resulting from the falls; right shoulder injury; right ankle joint injury; right hip injury, right knee injury and lumbar spine injury not caused by accident; no assessable impairment of right third metatarsal; 2% whole person impairment (WPI) for dysesthesia in the superficial peroneal nerve distribution and 1% WPI for dysesthesia in right sural nerve; total WPI for right foot crush injury 3%; atrial fibrillation previously assessed at 5% WPI; new combined certificate issued certifying a combined impairment of 8%.
Decision date: 12 October 2022| Panel Members: Member Susan McTegg, Dr David Gorman and Dr Geoffrey Stubbs | Injury module: Spine, Upper Limb and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of whole person impairment (cervical spine, left upper extremity - shoulder); whether Medical Assessor (MA) erred in making a 2% allowance for restrictions on activities of daily living; whether MA erred by failing to deduct more than 1/10th for the effects of pre-existing pathology; Held – Medical Assessment Certificate confirmed.
Decision date: 15 September 2022| Panel Members: Member Richard Perrignon, Dr Mark Burns and Dr James Bodel | Body system: Lumbar Spine, Right and Left Lower Extremity
The appellant submits that the Medical Assessor (MA) erred in two respects; namely in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of the lumbar spine and the left upper extremity (shoulder) and included in his assessment of the left upper extremity (shoulder) a non-work related injury; the Panel accepted that some deductions were warranted given the evidence of pre-existing conditions; the Panel also agreed that the MA incorrectly included in his assessment of the left upper extremity (shoulder) a non-work related injury; Held – Medical Assessment Certificate revoked.
Decision date: 30 September 2022| Panel Members: Member Deborah Moore, Dr Margaret Gibson and Dr Drew Dixon | Body system: Cervical and Lumbar Spine, Left Upper and Left Lower Extremity and Scarring
Medical Assessor (MA) provided Medical Assessment Certificate (MAC) even though he found that one impairment required further investigation; Panel conducted re-examination and requested magnetic resonance imaging (MRI) scan; right shoulder impairment was capable of assessment; MA did not add component for impact of cervical spine injury on activities of daily living; no error when impact was result of shoulder injury; matter for clinical judgement; Held – MAC revoked.
Decision date: 6 October 2022| Panel Members: Member Catherine McDonald, Dr David Crocker and Dr Drew Dixon | Body system: Cervical and Thoracic Spine, Left and Right Upper Extremity
Appellant worker assessed for permanent impairment resulting from primary psychiatric injury; appellant also suffered physical injury in same incident from which he suffered primary psychiatric injury; Medical Assessor (MA) found appellant did not suffer physical injury; MA did not have regard to Medical Assessment Certificate (MAC) of a differently constituted Appeal Panel who found the appellant suffered physical injury and assessed the appellant to have a permanent impairment resulting from that physical injury; Held – MAC revoked.
Decision date: 6 October 2022| Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Patrick Morris | Body system: Psychiatric/Psychological
Medical Assessor (MA) assessed 14% whole person impairment (WPI) for the lumbar spine including 1% for activities of daily living (ADL); appellant submitted MA failed to provide adequate reasons for his assessment of ADL; Panel held that MA erred in not provided adequate reasons for assessment of 1% for ADL and failed to address all the areas of interference with ADL as described in paragraph 4.35 of the WorkCover Medical Assessment Guidelines 2006; Held – Panel assessed 2% for ADL; Medical Assessment Certificate revoked.
Decision date: 7 October 2022| Panel Members: Member Carolyn Rimmer, Dr Mark Burns and Dr Roger Pillemer| Body system: Lumbar Spine and Scarring (TEMSKI)
Appellant submitted that the Medical Assessor’s (MA) assessment with respect to self-care and personal hygiene, social and recreational activities and social functioning and also deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) contained demonstrable errors and have applied this error to the relevant criteria incorrectly; Held – Panel were of the view that the MA failed to provide adequate reasons not making a deduction pursuant to section 323 of the 1998 Act in view of the evidence of her treating doctors; re-examination and Medical Assessment Certificate revoked.
Decision date: 7 October 2022| Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Brian Parsonage | Body system: Psychiatric/Psychological
The appellant submits that the Medical Assessor (MA) erred in relation to the deduction he made for a pre-existing impairment and the loading for activities of daily living (ADLs); the Panel found that the evidence supported the MA’s deduction and that no error was made regarding the loading for ADLs; Held – Medical Assessment Certificate confirmed.
Decision date: 10 October 2022| Panel Members: Member Deborah Moore, Dr Gregory McGroder and Dr Drew Dixon | Body system: Cervical Spine, Right Upper Extremity and Scarring (TEMSKI)
Industrial deafness; appellant employer alleged error in the Medical Assessor (MA) failing to provide reasoning for including frequencies below 2000Hz in the overall calculation of binaural hearing loss; in cases of industrial deafness only the frequencies between 2000Hz and 4000HZ are included in the assessment of industrial deafness unless a valid medical rationale for the inclusion of lower frequencies is required; the MA’s assessment included all frequencies from 0.5 to 4Hz; on the audiogram performed by the MA on the day of assessment the losses at these frequencies follow the typical pattern of occupational noise induced hearing loss due to the nature and duration; this being some 30 years of the worker’s occupational noise exposure; Held –the nature and duration of the worker’s occupational noise exposure and the nature and extent of all the hearing losses in the left ear at 0.5 – 4 kHz was considered; it was open to the MA to find that all of the losses including at the low frequencies are compatible with noise induced hearing loss; the MA explained that his assessment was based upon the history he obtained, the results of his physical examination, and his consideration and assessment of his audiometric findings; when regard is had to the MAC as whole there is no error to be found in the MA’s assessment or reasons; Medical Assessment Certificate confirmed.
Decision date: 11 October 2022| Panel Members: Member Jane Peacock, Dr Henley Harrison and Dr Robert Payten | Body system: Hearing
Assessment of permanent impairment from psychiatric injury; appellant contended that Medical Assessor’s (MA) rating of appellant’s impairment in Psychiatric Impairment Rating Scale categories of self-care and personal hygiene and travel did not take into account all relevant circumstances and were consequently wrong; Held – Appeal Panel considered MA’s ratings were open to MA on evidence and sufficiently explained; Medical Assessment Certificate confirmed.
Decision date: 11 October 2022| Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological
Whether Medical Assessor (MA) erred by finding appellant had pre-existing condition; whether MA erred by not assessing scarring where referral made no mention of scarring but Independent Medical Examination assessment on which appellant relied to support claim assessed whole person impairment (WPI) from scarring; Held – Appeal Panel found Medical Assessment Certificate (MAC) contained a demonstrable error; MAC revoked.
Decision date: 12 October 2022| Panel Members: Member Marshal Douglas, Dr Tommasino Mastroianni and Dr Drew Dixon | Body system: Cervical, Thoracic and Lumbar Spine and Scarring
Psychological Injury; appellant alleged error in the assessment under four categories under the Psychiatric Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, travel, social functioning, and employability; assessments made against the criteria in the PIRS categories; they must not be based on self-report alone; they must necessarily involve an exercise of the Medical Assessor’s (MA) clinical judgment; they must also be consistent with the available evidence that is before the MA; Held – the assessment by the MA of a moderate impairment for employability was not consistent with the evidence before the MA; in the circumstances of error being found a re-examination was required; Medical Assessment Certificate revoked.
Decision date: 12 October 2022| Panel Members: Member Jane Peacock, Dr Patrick Morris and Dr Nicholas Glozier | Body system: Psychiatric/Psychological
Motor Accidents Merit Review Panel Decision
Merit review panel; merit review application under Schedule 2, Clause 1(i) of the Motor Accident Injuries Act 2017 (2017 Act); costs of interpreting services incurred in connection with psychotherapy treatment; Held – the expense of interpreting services incurred by the claimant in connection with psychotherapy treatment provided by her treating psychologist was a reasonable cost of treatment and care within the meaning of section 3.24 of the 2017 Act.
Decision date: 7 October 2022| Merit Review Panel: Maurice Castagnet, Katherine Ruschen and 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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