Legal Bulletin No. 88
This bulletin was issued on 25 November 2022
Issued 25 November 2022
Welcome to the eighty-eighth 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.
Presidential Member Decisions
Workers Compensation; proof of consequential conditions; credit findings; alleged factual error.
Decision date: 11 November 2022 | Before: Deputy President Michael Snell
Workers Compensation; leave to appeal an interlocutory decision of the Commission pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to adduce additional evidence on appeal; CHEP Australia Limited v Strickland applied; principles applicable to determining an appeal from a discretionary decision; Micallef v ICI Australia Operations Pty Ltd applied.
Decision date: 14 November 2022 | Before: Deputy President Elizabeth Wood
Workers Compensation; leave to appeal an interlocutory decision; section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; remittal of matter to the President for referral to a Medical Assessor to assess whole person impairment in 2 circumstances where it is in contention as to whether the threshold whole person impairment is met; assessment by assessor and relevant accreditation under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
Decision date: 15 November 2022 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017 (2017 Act); claim for damages; separate assessment of liability; assessment undertaken on the papers; facts of accident and evidence included in reasons in earlier decision made during the course of the statutory benefits claim: ACV v The Nominal Defendant; accident occurred during a medical (psychotic) episode; claimant was owner and driver of only car involved and made a damages claim under the no-fault accident provisions of Part 5 of the 2017 Act; insurer disputed liability; Held – accident was a no-fault accident; section 5.2 of the 2017 Act deems fault when there is no fault but does not deem liability which requires proof of three elements, duty, breach of duty and loss; claimant owes no duty of care to himself; as no duty of care exists there can be no breach, actual or deemed; claimant has no action against himself; if he did he would be prevented by section 5.4 of the 2017 Act from recovering damages in any event; no costs awarded.
Decision date: 17 November 2022| Member: Belinda Cassidy
Assessment of damages; Motor Accident Injuries Act 2017; head on collision at 80 kmph; fractured coccyx; soft tissue injury low back; closed head injury; psychological injury; claimant now 38 years of age; absences from work until December 2019; thereafter returned to pre-injury duties; question of impairment of economic loss; loss of career trajectory to senior management role; Held – impairment of earning capacity due to low back pain and psychological symptoms; no loss of income since return to full duties; not satisfied failure to secure promotion to role acted in for 10 months due to accident related injuries; claimant will require accommodation from employer; psychological symptoms means unlikely to secure senior management role; buffer for future economic loss of $150,000; damages assessed in total sum of $168,859.01.
Decision date: 17 November 2022| Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Claim for medical expenses following discontinuance of claim for weekly benefits payments; whether applicant’s claim barred by sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); determination of deemed date of injury with reference to the claim made upon the respondent and section 15 of the Workers Compensation Act 1987; Held – deemed date of injury is date of incapacity for which compensation is claimed; applicant is barred from recovering compensation by section 261 of the 1998 Act; award for the respondent on the claim for medical expenses.
Decision date: 11 October 2022| Member: Nicholas Read
Applicant claimed incorrect pre-accident average weekly earnings (PIAWE); whether insurer had power to calculate PIAWE on 52 week basis where during that period the worker had been in receipt of compensation for an unrelated injury; whether insurer had power to include as earnings the income received by such a worker whilst on suitable duties in rehabilitation from the unrelated injury; Held – noted that three other cases decided as to this practice at least one was on appeal; consideration of Schedule 3 of the Workers Compensation Act 1987 (1987 Act) and cognate regulations; anomaly found in that Schedule 3(6)(2)(c) of the 1987 Act excluded such payments from PIAWE, yet 52 week calculation period not able to be adjusted to reflect exclusion pursuant to Schedule 3(2)(2) and (3) of the 1987 Act; section 33 of the Interpretation Act 1987 considered; Personal Injury Commission decisions of Sidhu v the Secretary of the Department of Communities and Justice and Stewart v Secretary of Department of Communities and Justice considered; ADCO Constructions Pty Ltd v Goudappel, to Alcan (NT) Alumina Pty Limited v the Commissioner of Territory Revenue (NT) and Bermingham v Corrective Services of NSW considered; anomaly corrected by reading words into Schedule 3 (2)(2) of the 1987 Act; short minutes to be filed accordingly.
Decision date: 14 October 2022| Member: John Wynyard
Psychological Injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant alleged he sustained a psychological injury due to bullying and harassing behaviour at work by his supervisor and a difficult work environment; respondent accepted that applicant had a psychological condition; whether the applicant sustained an injury pursuant to sections 4(a), 9A and 4(b)(i) of the 1987 Act; respondent raised defence pursuant to section 11A of the 1987 Act; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; Held – applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 66 of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; respondent had not established a defence under section 11A of the 1987 Act; consistent medical evidence in relation to assessment of whole person impairment; award in favour of the applicant for 22% whole person impairment ($37,759) resulting from the work-related psychological injury.
Decision date: 10 November 2022| Member: Karen Garner
Consideration of the correct date of injury, injury and capacity; Held – the applicant is liable to reimburse the first respondent (Workers Compensation Nominal Insurer) in the sum of $37.965.62; being the sum specified in the notice to reimburse issued pursuant to section 145(1) of the Workers Compensation Act 1987 dated 9 February 2022.
Decision date: 10 November 2022| Senior Member: Elizabeth Beilby
Claim for weekly benefits concerning multiple body systems; frank injury to left knee accepted and consequential conditions to lumbar spine, cervical spine and right knee as a result of over reliance and altered gait; applicant claims consequential condition to left shoulder as a result of trying to arrest his fall by grabbing a tree branch when his knee gave way; respondent disputes mechanism of injury and alleges applicant was swinging from tree when his left shoulder dislocated and as such there is no causal connection between the accepted injury and the shoulder dislocation; Held – the applicant’s version of events surrounding the left shoulder dislocation are accepted; the applicant suffered a consequential condition in his left shoulder; respondent ordered to pay the reasonably necessary medical and treatment expenses in connection with the accepted left knee injury and for each of the alleged consequential conditions.
Decision date: 10 November 2022| Member: Cameron Burge
Undisputed back injury; claim for consequential bilateral hip condition disputed; it is not necessary to succeed in respect of the consequential condition in the bilateral hips alleged here to establish “injury” within the meaning of section 4 of the Workers Compensation Act 1987; the symptoms and restrictions in her bilateral hips have resulted from her lumbar spine injury; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held – evidence weighed in the balance and it was determined on the balance of probabilities that the consequential condition in bilateral hips resulted from the back injury; award for the applicant.
Decision date: 10 November 2022| Member: Jane Peacock
Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); whether there was a change of an ongoing nature to the employment arrangement between the worker and the employer which resulted in a financially material change to the worker’s earnings (regulation 8C of the Workers Compensation Regulation 2016); reference to arbitral decisions of Cain v Tamworth Aboriginal Medical Service and Wake v State Emergency Services; Held – there was a change of an ongoing nature to the employment arrangement between the worker and the employer which resulted in a financially material change to the worker’s earnings; calculation made for the relevant earning period and the worker’s PIAWE.
Decision date: 14 November 2022| Member: John Isaksen
Claim for weekly payments and order sought for the payment of future medical treatment; whether the worker continues to suffer the effects of the work injury to his lower back; whether the worker has no current work capacity or has an ability to earn in suitable employment; reference to Wollongong Nursing Home v Dewar and Popal v Myer Holdings P/L; Held – the worker continues to suffer the effects of the work injury to his lower back; the worker has had no current work capacity since 24 July 2021; award of weekly payments pursuant to section 37 (1) of the Workers Compensation Act 1987; the respondent to pay for radiofrequency ablation therapy recommended by the applicant’s treating specialist.
Decision date: 16 November 2022| Member: John Isaksen
Motor Accidents Medical Review Panel Decisions
Medical Review Panel; claimant was a passenger in a car that collided with the back of a bus; pre-existing psychiatric conditions; depression; psychiatric injury; Motor Accident Injuries Act 2017; Held – original medical certificate set aside; original assessment found post-traumatic stress disorder caused by the accident with 17% whole person impairment; insurer sought to rely on Claimant’s extensive court attendance, police and criminal history records; Panel agreed with the claimant’s solicitors that many of the allegations of criminal activity are irrelevant to the matters the Panel are required to consider in the Review; Panel determined that there was no recognised psychiatric condition from the injuries in the accident and no evidence of an exacerbation of pre-existing psychiatric condition; Panel determined that claimant being treated for long standing anxiety symptoms including panic attacks prior to the accident; clinical notes show that these conditions pre-dated the accident.
Decision date: 10 October 2022| Panel Members: Member Ray Plibersek, Dr Paul Friend and Dr Mathew Jones | Injury module: Mental and Behavioural
The claimant sustained injury on 19 December 2015 when the vehicle in which she was a front seat passenger was hit from the rear in a five car pile-up; the claimant alleged she struck her right wrist against the baby seat when she reached over to protect her children at the time of impact; only mention of the accident in treating medical records other than the medical certificate was an attendance on 9 March 2017; various histories provided of a fracture of the right wrist but no clinical record of treatment of a right wrist fracture; question of causation of alleged injures; Held – as per Kinchela v Insurance Australia Group Ltd T/a NRMA Insurance question not of presence of contemporaneous record but whether accident materially contributed to the injury; Panel found no evidence of injury to the lumbar spine, right hip, left hip, right leg or left leg; Panel found soft tissue injury to the right wrist, right shoulder and cervical spine; 0% whole person impairment (WPI) for injury to cervical spine; 0% WPI for injury to right wrist; 1% WPI for injury to right shoulder.
Decision date: 10 November 2022| Panel Members: Member Susan McTegg, Dr Les Barnsley and Dr Geoffrey Curtin | Injury module: Spine, Upper and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Noise-induced hearing loss; Medical Assessor (MA) excluded loss at 500 Hz and made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of a period of self-employment; long working life but not exposed to noise all day; MA gave reasons and no error in not including loss at 500Hz; operation of section 17 of the Workers Compensation Act 1987; Commissioner for Railways v Bain, Blayney Shire Council v Lobley, Rico v Roads and Traffic Authority, A & G Engineering v Civitarese applied; MA in error to rely on section 323 of the 1998 Act in respect of period of self-employment; Pereira v Siemens Limited distinguished; Held – Medical Assessment Certificate revoked.
Decision date: 11 November 2022| Panel Members: Member, Catherine McDonald, Dr Robert Payten and Dr Brian Williams | Body system: Hearing
Worker alleges two errors in the Medical Assessor (MA) misquoting Independent Medical Examiner’s (IME) assessment of whole person impairment (WPI) of right leg and his failure to provide reasons why he rejected IME’s opinion; De Gelder v Roger followed; and failure to make enquiries as to the impact of scarring on her activities of daily living (ADLs) or give adequate reasons for his findings; Held – while the MA misquoted the IME’s assessment of WPI, the actual path by which he determined WPI was transparent; he was not required to comment on the correctness of other opinions; Wingfoot Australia Partners Pty Ltd v Kocak followed; the MA determined that the scarring had no impact on ADLs; there was no evidence to the contrary and this conclusion was open to him; it was unnecessary to give more extensive reasons; the MA also gave sufficient reasons as to why 4% WPI was the “best fit” for the worker’s scarring; Medical Assessment Certificate confirmed.
Decision date: 11 November 2022| Panel Members: Member Paul Sweeney, Dr Paul Curtin and Dr Drew Dixon | Body system: Right Lower Extremity and Scarring
Appeal against of Medical Assessment Certificate (MAC) of Medical Assessor (MA) in respect of psychological injury on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error; the appellant submitted that the MA had erred in respect of the assessment for self-care and personal hygiene, social functioning, concentration, persistence and pace; Held – the MA had erred in respect of his classification for self-care and personal hygiene, but not in respect of the other two categories challenged; MAC revoked and fresh MAC issued.
Decision date: 11 November 2022| Panel Members: Member Brett Batchelor, Dr Michael Hong and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Industrial deafness; appellant worker alleged Medical Assessor (MA) error in excluding losses below 1500Hz with inadequate reasons; industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones with the maximal loss occurring at 4000Hz and 3000 Hz as has occurred here; consideration of the duration of occupational noise exposure and the nature of the noise exposure; the MA found these were variable over the years and intermittent and fluctuating; it was open to the MA to find that not all of the losses are compatible with noise induced hearing loss and that the losses at the lowest frequencies of 0.5 Hz and 1Hz are not compatible with noise induced hearing loss; Held – the clinical judgment of the MA is consistent with the nature and extent of the appellant’s occupational noise exposure; the MA explained that his assessment was based on the documents provided, the history given, the clinical assessment and his audiogram; when regard is had to the Medical Assessment Certificate (MAC) as whole there is no error to be found in the MA’s assessment or his reasons; MAC confirmed.
Decision date: 16 November 2022| Panel Members: Member Jane Peacock, Dr Henley Harrison and Dr Paul Nial | Body system: Hearing
The appellant submitted that the MA erred in two respects, firstly in respect of his assessment regarding the category of social and recreational activities, and secondly in regard to his assessment of concentration, persistence and pace (CPP); fresh evidence, a further statement from the appellant rejected; Held – MA’s assessment consistent with all the evidence; Medical Assessment Certificate confirmed.
Decision date: 16 November 2022| Panel Members: Member Deborah Moore, Dr Michael Hong and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Appeal against 1/10th deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) applied the wrong test; whether the MA’s reasons demonstrated his actual path of reasoning; Held – MA description of pre-existing condition as predisposing the appellant to further deterioration not the correct test; Cole v Wenaline considered and applied; MA took inadequate history of back injury and failed to give a diagnosis; path of reasoning not adequately set out; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked and 1/10th deduction rejected.
Decision date: 16 November 2022| Panel Members: Member John Wynyard, Dr Tommasino Mastroianni and Dr John Brian Stephenson | Body system: Lumbar Spine, Left Lower Extremity and Scarring
Appeal from assessment of scarring; whether Medical Assessor erred in assessing a 1% whole person impairment (scarring); whether he failed to take into account relevant evidence; whether he failed to give adequate reasons for finding that the criteria for a 1% whole person impairment were satisfied; Held – Medical Assessment Certificate set aside and replaced.
Decision date: 16 November 2022| Panel Members: Member Richard Perrignon, Dr Drew Dixon and Dr Gregory McGroder | Body system: Right and Left Upper Limb and Scarring
Appeal by worker against finding of 13% whole person impairment; whether section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction was excessive; whether adequate reasons given for the deduction; Held – Medical Assessor (MA) erred in failing to give adequate reasons for a deduction of 50% of one part of the lower extremity assessment; the deduction was not properly particularised in the Table 2 certificate; the MA had included a 20% lower extremity assessment for a condition that the appellant had not suffered; Medical Assessment Certificate revoked but new certificate issued in the same amount.
Decision date: 16 November 2022| Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr Brian Noll | Body system: Lumbar Spine and Left Lower Extremity
Appellant relied on grounds for appeal listed in sections 327(3)(b),(c),(d) of the Workplace Injury Management and Workers Compensation Act 1998; additional relevant information related to psychometric testing of respondent; appellant submitted this information substantiated respondent exaggerated her symptoms; appellant submitted history Medical Assessor (MA) obtained was inconsistent with the evidence and was inconsistent with respondent exaggerating her symptoms; discussion of reliability of psychometric testing; additional information did not lead Panel to different conclusion from that reached by MA; Held – Panel found that MA’s assessment of respondent’s impairment was open to him and appropriate and adequately explained; Medical Assessment Certificate upheld.
Decision date: 16 November 2022| Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Employer alleges error in Medical Assessor (MA) failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); MA stated that he could not identify a pre-existing condition; made no reference to previous complaints of back pain in the clinical record; Wingfoot Australia partners Pty Ltd v Kocak applied; Held – absent a brief reference to the previous complaints the MA had not made clear the actual part of his reasoning in respect of a pre-existing condition; Medical Assessment Certificate revoked; section 323(2) of the 1998 Act applied.
Decision date: 16 November 2022| Panel Members: Member Paul Sweeney, Dr James Bodel and Dr Tommasino Mastroianni | Body system: Lumbar Spine and Scarring
Medical Assessor (MA) assessed 5% whole person impairment (WPI) of the cervical spine; 100% deduction for pre-existing injury on the assumption that because an Approved Medical Assessor had previously assessed the claimant at 5% WPI for an injury in 2004 a 5% deduction was to be made; MA failed to consider whether, and to what extent, the previous injury in 2004 contributed to the current impairment; Held – Panel considered that it was too difficult to determine with any accuracy the correct level of impairment caused by the pre-existing injury in 2004 and made a deduction of 10%; Medical Assessment Certificate revoked.
Decision date: 16 November 2022| Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr David Crocker | Body system: Lumbar Spine and Cervical Spine and Left Upper Extremity
Motor Accidents Merit Review Decision
Merit review; dispute about whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) of the Motor Accident Injuries Act 2017 (2017 Act) the costs and expenses incurred by the claimant are reasonable and necessary; whether interpreter fees reasonable and necessary costs pursuant to section 8.10 of the 2017 Act; whether interpreter fees payable in the alternative under section 3.24; Held – the reviewable decision is affirmed.
Decision date: 17 November 2022| Merit Reviewer: Katherine Ruschen
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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