Legal Bulletin No. 89
This bulletin was issued on 2 December 2022
Issued 2 December 2022
Welcome to the eighty-ninth 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 Decision
Workers Compensation; section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal an interlocutory decision; section 65A of the Workers Compensation Act 1987; secondary psychological injury.
Decision date: 23 November 2022 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Claims assessment; damages claim; liability wholly admitted; injury; pillion passenger; motorcycle; combination of psychological and functional disability; non-economic loss; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity; loss of opportunity to run Reiki healing business; theoretical earning capacity where no reasonable prospect of obtaining work to utilise it; credit; Jones v Dunkel discussed; request to make adverse inference because claimant did not provide evidence regarding treatment after insurer’s doctor assessed post-traumatic stress disorder; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witness; interest; legal costs; Personal Injury Commission Rules 2021; Malec v JC Hutton, Husher v Husher and Wallace v Kam followed; Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis considered; assessment of damages for personal injury and death; Held – the insurer admits it owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
Decision date: 14 November 2022| Member: Terence O’Riain
Claims assessment; damages claim; liability accepted; no allegation as to contributory negligence; injuries to spine, orthodontic and psychological; economic losses; past and future expenses; section 94 of the Motor Accidents Compensation Act 1999; Held – an assessment of the amount of damages for liability that a court would be likely to award assessed at $382,500.00 with reductions and regulated costs.
Decision date: 15 November 2022| Member: Terence Stern
Settlement approval; 67-year-old female; injuries to left and right leg, internal fixation of fractures and right knee total replacement; non-economic losses only; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement in the sum of $300,000 is just, fair and reasonable; settlement approved.
Decision date: 21 November 2022| Member: Shana Radnan
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for damages for non-economic loss; claimant now 83 years of age; significant injuries; fracture of the left femur, fracture of the left elbow; left proximal humerus fracture with non-union after removal of hardware; non-displaced fracture of the cervical spine; pre-accident, the claimant was living independently and able to drive; post-accident capacity to carry out activities of daily living severely restricted; inability to drive; requirement to use walker for mobility; claimant’s quality of life severely compromised with no likelihood of improvement; Held – proposed settlement of $350,000 approved.
Decision date: 21 November 2022| Member: Maurice Castagnet
Miscellaneous claims assessment; claim for statutory benefits made 57 days after the accident; insurer accepted liability for the claim but determined that, because the claim was not made within 28 days after the date of the accident, statutory benefits were not payable in respect of any period before the claim was made; insurer relied on section 6.13(2) of the Motor Accident Injuries Act 2017 (2017 Act);claimant attempted to identify at fault driver; delay in making claim due to delay in identifying driver; Held – section 6.13(2) of the 2017 Act is in clear and unambiguous terms; there is no provision that provides a discretion to allow payment of statutory benefits if section 6.13(2) of the 2017 Act has not been complied with; Wright v AAI Limited t/as GIO followed; the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13(2) of the 2017 Act.
Decision date: 22 November 2022| Member: Brett Williams
Interim decision; in submissions lodged with its reply, the insurer argued that the claimant had failed to comply with sections 7.32(3) and 7.33 of the Motor Accident Injuries Act 2017 (2017 Act); where entitlement to non-economic loss was in dispute; the claimant had sought a concession from the insurer on multiple occasions that his permanent impairment was greater than 10%; claim initially referred to the Personal Injury Commission (Commission) for assessment within three years but application subsequently dismissed due to Federal issues; further application for assessment lodged after three years; exceptional costs order sought; Held – the claimant did use his best endeavours to settle his claim before he referred it to the Commission; it was not reasonable to expect the claimant to make an offer of settlement, or engage in settlement discussions, in circumstances where his entitlement to non-economic loss remained in dispute; the claimant has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment; leave granted for the claim to be referred for assessment; it is clear from the terms of section 8.10 of the 2017 Act that the section only applies to a claim for statutory benefits, and does not apply to a damages claim; no power to allow costs under section 8.10(4)(b) of the 2017 Act in relation to these proceedings.
Decision date: 23 November 2022| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Claim for compensation for medical treatment pursuant to section 60 of the Workers Compensation Act 1987; whether proposed spinal surgery was reasonably necessary as a result of a work injury; Held – the proposed surgery was reasonably necessary as a result of a work injury.
Decision date: 17 November 2022| Member: Karen Garner
Consideration of the whether psychiatric injury suffered as a result of the nature and conditions of employment or arising from a frank injury; Held – finding in favour of nature and conditions of employment; consideration of section 65A of the Workers Compensation Act 1987.
Decision date: 17 November 2022| Senior Member: Elizabeth Beilby
Claim for bilateral digital hearing aids; issues concerning giving of notice of injury and notice of claim as well as nature of the exposure and identity of last noisy employer; applicant employed as a team leader and qualified as an occupational therapist; applicant had some duties involving attendance at respondent’s sites to advise on injured worker’s work practices; applicant’s evidence of exposure to noise on those occasions accepted; Held – declaration pursuant to section 60(5) of the Workers Compensation Act 1987 in favour of the applicant that respondent pay the costs of bilateral digital hearing aids.
Decision date: 18 November 2022| Member: Phillip Young
Claim by worker for cost of cervical surgery; employer accepts liability for incident but denies cervical injury; absence of contemporaneous report of neck symptoms in claim form or medical record; Davis v Council of the City of Wagga Wagga and Coote v Kelly, Northam v Kelly considered; Held - worker has not established that he suffered cervical injury; award for respondent.
Decision date: 18 November 2022| Member: Paul Sweeney
Claim for lump sum compensation; applicant experienced a sudden onset of thoracic pain while lifting a heavy gate at work; investigations revealed a T5 fracture and plasmacytoma; plasmacytoma weakened the vertebra such that a fracture could have happened spontaneously or with trivial trauma; whether the applicant sustained a compensable injury pursuant to sections 4 and 9A of the Workers Compensation Act 1987 (1987 Act); Held – the fracture occurred at the applicant’s usual workplace, during normal work hours while applicant engaged in a usual work activity; sudden pathological change occurred “in the course of employment” pursuant to section 4(a) of the 1987 Act; although the plasmacytoma was a substantial if not the main contributing factor to the injury, employment also a substantial contributing factor to the injury; activity being performed at the time of injury involved exertion of substantial force and awkward positioning; although there was a high probability that the fracture would occur at some point, employment was substantial contributing factor to the occurrence of the injury at that point in time; matter remitted to President for referral to a Medical Assessor.
Decision date: 21 November 2022| Member: Rachel Homan
Matter involving suicide; determination in relation to injury and consideration of section 14(3) of the Workers Compensation Act 1987; Held – finding in favour of the applicant.
Decision date: 22 November 2022| Senior Member: Elizabeth Beilby
Claim for interest on lump sum death benefit pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; claim opposed by applicant; orders for apportionment of lump sum and direction for written submissions on issue of interest made at preliminary conference; consideration of Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd and Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Held – no order for interest.
Decision date: 23 November 2022| Senior Member: Kerry Haddock
Motor Accidents Medical Review Panel Decisions
Accident on 22 August 2017; claimant aged 23 years; whole person impairment (WPI) assessment; claimant was a front seat passenger in a single car rollover accident; two occupants of the car deceased; claimant suffered fractures of the transverse processes from L1 to L4, fractures sixth and seventh ribs, fractures of the distal metatarsals of right foot; claimant has fully recovered respect to her right foot but requires specific footwear for mobilisation; Held – WPI force of movement in the right ankle 7% and WPI spinal injury 5%; total WPI 12%.
Decision date: 28 October 2022| Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs and Dr Mohammed Assem | Injury module: Spine and Lower Limb
The claimant sustained injury in a rear end collision on 26 March 2017; injuries referred for assessment were the left shoulder, right shoulder, cervical spine and thoracic spine; at time of assessment by Panel both cervical and thoracic spine asymptomatic; dispute as to causation of shoulders; Held – Panel satisfied as to causation of right shoulder injury; Panel found the accident did not cause injury to the left shoulder, no contemporaneous complaint; no complaint re the left shoulder when assessed by medico-legal practitioners on 9 October, 2017, 13 April 2018 and 24 April 2018; not satisfied left shoulder condition due to favouring the right shoulder; degenerative change and normal wear and tear resulted in labral tear, glenohumeral osteoarthritis and adhesive capsulitis; Panel assessed 3% whole person impairment for injury to right shoulder.
Decision date: 10 November 2022| Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Clive Kenna | Injury module: Spine and Upper Limb
The claimant alleges she sustained injury in a motor vehicle accident on 8 April 2016; injury to neck and lower back; anxiety and depression; dispute as to whether treatment reasonable and necessary and whether causally related to psychological injury sustained in the accident; Medical Assessor had determined the claimant had not sustained a psychological injury related to the accident; claimant had long standing history of anxiety and depression; Held – there is no current diagnosable psychiatric condition; any psychiatric condition not caused by the accident; no need for domestic assistance by reason of psychiatric injury; medication was reasonable and necessary but claimant did not take medication and even if she did it was not causally related to injury sustained in the accident; future medication not reasonable and necessary where no current psychiatric injury; future psychological treatment including counselling and future psychiatric treatment not reasonable and necessary where claimant no longer suffers from a psychiatric injury; Medical Assessment Certificate affirmed.
Decision date: 14 November 2022| Panel Members: Member Susan McTegg, Dr Gerald Chew and Dr Matthew Jones | Injury module: Mental/Behavioural
The claimant sustained facial injuries in a motor vehicle accident on 26 July 2018; prior to the accident the claimant had reported dizziness and been prescribed Serc; on about 24 August 2018 the claimant went outside to feed the cat and fell; claimant remembers feeling dizzy; question of whether claimant sustained post-traumatic paroxysmal positional vertigo as a result of the motor vehicle accident leading to fall; as a result of fall the claimant sustained a fractured right orbit and injury to the right infraorbital nerve; Held – fall on or about 24 August 2018 was either accidental or related to the pre-accident non-specific dizziness; fall not caused or contributed to by the accident on 26 July 2018; the fractured right orbit was not caused by the accident and does not give rise to a permanent impairment under the Motor Accident Injuries Act 2017.
Decision date: 15 November 2022| Panel Members Member Susan McTegg, Dr John O’Neill and Dr Ian Wechsler | Injury module: Vision
The claimant suffered injury in a motor vehicle accident on 15 October 2016; assessment of permanent impairment under the Motor Accident Compensation Act 1999; long history chronic back pain; surgical decompression; causation injury to lumbar spine; injury to cervical spine; full thickness tear of the supraspinatus tendon of left and right shoulder; Held – soft tissue injury to cervical spine; diagnosis related estimate (DRE) Category I or 0% whole person impairment (WPI); accident contributing cause more than negligible to injury to lumbar spine; soft tissue injury superimposed upon pre-existing symptomatic degenerative change; DRE Category II or 5% WPI; accident material contribution to need for surgery; no objective evidence of pre-existing symptomatic impairment in same region at time of accident so presence of pre-existing impairment ignored; Panel not satisfied claimant sustained rupture of both supraspinatus tendons in the accident having regard to mechanism of accident; unlikely to experience near identical injury to both shoulders and rupture would have been associated with immediate severe pain; Panel finds accident caused aggravation of pre-existing degenerative rotator cuff tears; shoulders symptomatic; full range of movement of both shoulders; 0% WPI for each shoulder.
Decision date: 15 November 2022| Panel Members: Member Susan McTegg, Dr Neil Berry and Dr Geoffrey Curtin | Injury module: Spine and Upper Limb
The claimant suffered injury in a motor vehicle accident on 15 October 2016; dispute as to whether arthroscopic and rotator cuff repair to right and left shoulder caused by accident and reasonable and necessary; Motor Accident Compensation Act 1999; Held – Panel not satisfied claimant sustained rupture of both supraspinatus tendons in the accident having regard to mechanism of accident; unlikely to experience near identical injury to both shoulders and rupture would have been associated with immediate severe pain; Panel finds accident caused aggravation of pre-existing degenerative rotator cuff tears; AAI Limited v Phillips applied; accident need only be material contribution to need for treatment; presence ongoing pain, failure of conservative treatment; opinion of Dr Jones; arthroscopic and rotator cuff repair reasonable and necessary; surgery relates to injury caused by accident where accident aggravated pre-existing degenerative rotator cuff defects.
Decision date: 15 November 2022| Panel Members: Member Susan McTegg, Dr Neil Berry and Dr Geoffrey Curtin | Injury module: Upper Limb
The claimant suffered soft tissue injuries to the spine in a motor accident on 16 January 2020; the issue was whether a further seven sessions of physiotherapy treatment were reasonable and necessary; the claimant had received 31 sessions of physiotherapy and 19 sessions of exercise physiology paid by the insurer; further sessions of physiotherapy had been paid by the claimant; the claimant was re-examined by Medical Assessors on the Panel; examination findings showed no neurological signs and movements were inconsistent; the claimant admitted that she received only short-term benefit from physiotherapy described as “passive therapy”; there was a lack of clinical and rehabilitative context for the continuation of physiotherapy; Held – findings made that seven sessions of physiotherapy was not necessary and would not improve recovery.
Decision date: 17 November 2022| Panel Members: Principal Member John Harris, Dr Clive Kenna and Dr Geoffrey Curtin | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Appellant submitted the Medical Assessor (MA) erred in his assessment and deduction in respect of his diabetes; Held – no errors; MA’s assessment in line with all other doctors and consistent with all the evidence; Medical Assessment Certificate confirmed.
Decision date: 18 November 2022| Panel Members: Member Deborah Moore, Dr David Gorman and Dr Margaret Gibson | Body system: Lumbar Spine, Right Upper and Lower Extremity and Diabetes
Back injury at work in 2017 and accepted consequential condition from fall at home three years later leading to surgery; deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made 50% deduction for pre-existing condition; MA considered that 2017 injury was minor but did not have regard to ongoing treatment; Held – extent of deduction difficult or costly to determine and one-tenth deduction was appropriate; Medical Assessment Certificate revoked.
Decision date: 18 November 2022| Panel Members: Member Catherine McDonald, Dr David Crocker and Dr Drew Dixon | Body system: Lumbar Spine
Assessment of loss of sight under the table of disabilities following an injury to the right eye on 1 July 1994; Medical Assessor (MA) assessed 70% loss of vision of the right eye and then deducted 40% that being the monetary value in the Table of Disabilities for loss of sight of one eye; Held –Panel agreed that MA erred in making that deduction; Medical Assessment Certificate revoked.
Decision date: 18 November 2022| Panel Members: Member Carolyn Rimmer, Dr Frank Bors and Dr Ian Wechsler | Body system: Vision
Left lower extremity injury; Chronic Regional Pain Syndrome (CRPS) referred for assessment; appeals by both the worker and the employer; the worker alleged error by the Medical Assessor (MA) in the assessment because CRPS not assessed; employer alleged error in the assessment of the lower extremity; Held – Appeal Panel found error and considered a re-examination was necessary; CRPS assessed; Medical Assessment Certificate revoked.
Decision date: 22 November 2022| Panel Members: Member Jane Peacock, Dr James Bodel and Dr Brian John Stephenson| Body system: Lumbar Spine and Left Lower Extremity
Psychological Injury; appellant alleged error in the assessment under two categories under the Permanent Impairment Rating Scale (PIRS); self-care and personal hygiene, and social functioning; Held – the ratings were open to the Medical Assessor and made in accordance with the correct criteria; Medical Assessment Certificate confirmed.
Decision date: 23 November 2022| Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological
Appeal by employer against 18% whole person impairment (WPI) assessment for lumbar spine; whether Medical Assessor (MA) failed to consider maximum medical improvement (MMI); whether MA had applied incorrect criteria in the performance of various tests in applying the guidelines; Held – MA comment regarding medico-legal specialist irrelevant to his assessment; MA statement that there appeared to have been a deterioration since other specialist report a diplomatic courtesy and did not raise question of MMI; submissions that various tests and measurements not properly explained without foundation; presumption of regularity considered; Jones v Registrar WCC considered and applied; observations as to employer submissions being made with an eye too keenly attuned to the perception of error; Bojko v ICM Property Service Pty Ltd considered and applied; Medical Assessment Certificate confirmed.
Decision date: 23 November 2022| Panel Members: Member John Wynyard, Dr Margaret Gibson and Dr James Bodel | Body system: Lumbar Spine
Motor Accidents Merit Review Decision
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); meaning of PAWE, schedule 1, clause 4(1) of the 2017 Act; earnings received as an earner; Corporations Act 2001 section 1.5.1; distinction between sole trader and company; company separate legal entity; Held – the reviewable decision is set aside.
Decision date: 21 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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