Legal Bulletin No. 46
This bulletin was issued on 4 February 2022
Issued 24 February 2022
Welcome to the forty-sixth 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.
Appeal Case Summaries
WORKERS COMPENSATION- Consequential condition; circumstances in which a diagnosis of the condition is relevant; Arquero v Shannons Anti Corrosion Engineers Pty Ltd, Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan discussed; requirement for expert medical opinion.
Decision date: 24 January 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Motor Accidents Compensation Act 1999; damages claim; accident occurred 30 September 2011, liability wholly admitted; claims made for past and future loss of earnings, past and future treatment and care in sum of approximately $2 million; issue of reliability of claimant’s evidence in light of length of time since accident, undisclosed previous physical conditions and significant intervening psychological condition; Held- claimant’s evidence unreliable; claimant’s physical injuries soft tissue in nature and no longer causing losses after December 2011; no psychological injury caused by accident; damages assessed in sum of $12,000 and costs assessed in accordance with the Motor Accidents Compensation Regulation 2020.
Decision date: 26 October 2021| Member: Belinda Cassidy
Motor Accident Injuries Act 2017; damages claim; claimant front seat passenger in vehicle driven at speed by driver affected by alcohol (blood alcohol level between 0.150 and 0.192 at time of accident); vehicle belonged to claimant’s step-father and claimant had handed over keys to driver on trip home from restaurant; claimant sustained L3 crush fracture (28%) and developed hip pain after accident; claims for past and future loss of earnings and earning capacity; claimant worked as furniture spray painter and had a variety of jobs after accident; claimant had pre-accident anxiety and depression not fully disclosed and pre and post-accident drug and alcohol issues not fully recalled; Held-claimant’s evidence unreliable; his contributory negligence assessed at 33%; issues of earnings before accident, due to periods of unemployment after accident and most likely future circumstances; damages assessed at nearly $83,000 and costs assessed under Motor Accident Injuries Regulation.
Decision date: 29 November 2021| Member: Belinda Cassidy
Contributory negligence; instructing learner driver; onus of proof; inferences to be drawn; failure to provide statements; Held- motor accident was caused by the fault of another person; motor accident was not caused mostly by the fault of the injured person; 10% contributory negligence on the part of the claimant; legal costs, $2,127 inclusive of GST.
Decision date:14 December 2021 | Member: Hugh Macken
Workers Compensation non-Presidential Member Decisions
Payment of compensation after the second entitlement period; insurer had not assessed the worker under section 38; jurisdiction of the Commission; Lee v Bunnings, Sabanayagam v St George Bank, Hochbaum v RSM Building Services Pty Ltd, Darcy v P &T Formwork and Welding Pty Ltd and Roberts v University of Sydney considered; Held- the Commission has jurisdiction to determine the dispute; award for the applicant pursuant to section 38(2).
Decision date: 20 January 2022| Member: Catherine McDonald
Apportionment of death benefit; Held- applicant and the second and third respondents partially dependent on the deceased at the date of his death; no other person dependent upon the deceased; lump sum benefit apportioned pursuant to s 29(1)(a) of the 1987 Act.
Decision date: 21 January 2022 | Senior Member: Elizabeth Beilby
Claim for weekly compensation in respect of accepted lumbar injury; applicant initially continued to work in full-time suitable duties before being certified fit for pre-injury duties; change in employment and subsequent cessation of work; whether current incapacity causally related to accepted injury; effect of psychological symptoms; inconsistent evidence of incapacity during part of claim; Held- applicant had no current work capacity during part of claim to date and continuing; award for respondent in respect of claim for weekly compensation during part of the period; awards for the applicant pursuant to sections 36(1) and 37(1) of the 1987 Act during the remainder of the period claimed.
Decision date: 21 January 2022 | Member: Rachel Homan
Claim for weekly payments and medical expenses; worker claimed injury to lumbar spine as a result of repetitive heavy duties; whether worker sustained injury to the lumbar spine; whether proposed spinal fusion reasonably necessary as a result of injury; whether worker had incapacity for employment as result of injury; evidence of pre-existing degenerative disease; Held- finding that worker suffered aggravation or exacerbation of pre-existing disease; finding that employment was main contributing factor; proposed treatment is reasonably necessary as a result of injury; worker had no current capacity from date claimed and continuing.
Decision date: 24 January 2022| Member: Jill Toohey
Claim for cost of past right hip replacement surgery pursuant to section 60 as a result of disputed injury to the right hip on 5 April 2016 and also right hip condition consequential to injury to the right ankle and foot on 5 April 2016 by way of altered gait; Ly v Jitt Offset Pty Ltd, Kooragang Cement Pty Ltd v Bates, Henville v Walker; novus actus and Roads and Traffic Authority v Royal, Henville considered; multiple causes and material contribution; Murphy v Allity Management Services Pty Ltd; Held - surgery was reasonably necessary as a result of both injury to the right hip on 5 April 2016 and right hip condition consequential to injury to the right ankle and foot on 5 April 2016; award in favour of the applicant.
Decision date: 24 January 2022| Member: Michael Wright
Claim for weekly benefits and section 60 expenses, including the cost of future cervical spinal surgery, as a result of a disease injury deemed to have been contracted in the course of the applicant’s employment with the respondent; the respondent disputed liability on the basis of an undisclosed injury sustained by the applicant shortly before he commenced employment with the respondent, and put his credibility in issue; finding that the applicant had not disclosed prior injury and that his version as to what he said at a meeting with employer representatives should be accepted; nevertheless, after a detailed examination of medical evidence, there was a finding in favour of the applicant on the issue of injury, incapacity as a result of injury and the reasonable necessity of surgery claimed by him; Held- the respondent was ordered to pay the applicant weekly compensation claimed and section 60 expenses including the cost of surgery.
Decision date: 24 January 2022| Member: Brett Batchelor
Consideration of allegation of injury to the lumbar spine; absence of complaint in treating notes; Held- adequate explanation for absence of complaint; consequential condition due to overuse.
Decision date: 25 January 2022| Senior Member: Elizabeth Beilby
Claim for weekly payments as a result of psychological condition consequential to accepted back injury on 7 September 2020 and restricted duties arrangements in respect of the back injury; causation and consideration of Le Twins Pty Ltd v Luo, Kooragang Cement Pty v Bates, Murphy v Allity Management Services Pty Ltd and Comcare v Martin; applicant’s perception of real events and Attorney General’s Department v K; Held – applicant sustained psychological condition consequential to back injury on 7 September 2020; award for the applicant.
Decision date: 25 January 2022| Member: Michael Wright
Motor Accidents Medical Review Panel Decisions
The claimant suffered injuries as a pedestrian in a motor vehicle accident; the dispute related to various treatment that had been provided including MRI scans and cortisone injections; Held- the claimant suffered injury to the lumbar spine given the complaints at hospital; the allegation of injury to the cervical spine was accepted as consistent with the mechanism of injury and scan undertaken at hospital; sufficient that motor accident was a material cause for the need for treatment; AAI Ltd v Phillips; all treatment was causatively related to the accident; further MRI scan of the cervical spine was not necessary as one had been undertaken 12 months earlier; more than three injections into lumbar spine not necessary as unlikely to benefit claimant; NRMA v Diab applied; original medical assessment revoked in part.
Decision date: 10 December 2021| Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Neil Berry | Body system: Lumbar Spine and Cervical Spine
This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for a Specific Phobia of Driving was satisfied; a diagnosis of an Adjustment Disorder is not made if the stress related disturbance meets the criteria for another mental disorder, which in this case it does i.e. Specific Phobia of Car Travel; for that reason, the Panel did not consider that Ms Lynch was suffering from an ‘Other Specified Trauma and Stressor Related Disorder’ because her ‘Adjustment-like Disorder’ with anxiety satisfied DSM-5 criteria for a Specific Phobia of Driving; the Panel otherwise did not make a diagnosis of adjustment disorder because Ms Lynch’s depressive symptoms satisfied DSM-5 criteria for Major Depressive Disorder at that time and therefore an Adjustment-like Disorder would not be made; secondly, Ms Lynch’s depressive disorder is now in remission; observations that the onus lay on the injured person to establish that they suffered from a non-minor injury for the purposes of an ongoing entitlement to statutory benefits and an entitlement to recover damages; Vines v Djordjevitch applied; observations that the relevant onus was established if the psychological injury (other than an adjustment disorder) was present at any time; Held- the claimant suffered from a Major Depressive Disorder in remission and suffers from a Specific Phobia of Driving; both psychological injuries were a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 and the Regulations.
Decision date: 13 January 2022| Panel Members: Principal Member John Harris, Dr Brian Parsonage and Dr Michael Hong | Body system: Psychological/psychiatric
Appeal against binaural hearing loss equivalent to 10% WPI; applicant hearing in right ear affected by unrelated vascular incident; Medical Assessor (MA) noted presence of tinnitus in both ears; found severe tinnitus in right ear not related, but failed to comment on the left ear tinnitus; Appeal Panel unable to infer MA’s intention regarding left ear tinnitus; applicant re-examined; Held- left ear tinnitus not severe and no loading applicable; audiogram on re-examination showed that low tone frequencies not work related; Drosd v Workers Compensation Nominal Insurer applied; MAC revoked and 9% WPI substituted.
Decision date: 14 January 2022| Panel Members: Member John Wynyard, Dr Robert Payten and Dr Henley Harrison | Body system: Hearing
Motor Accident Merit Review Decisions
Merit review; dismissal, lack of jurisdiction; Personal Injury Commission Rules 2021; Personal Injury Commission Act 2020; Motor Accident Injuries Act 2017; Motor Accident Regulation 2017; costs in miscellaneous assessment; section 8.10 Motor Accident Injuries Act 2017 applicable only to statutory benefits dispute; Held- application dismissed pursuant to rule 77(b)(iv) of the Personal Injury Commission Rules 2021
Decision date: 19 January 2022| Merit Reviewer: Terence O’Riain
Merit Review; whether reasonable and necessary travel and accommodation expenses are payable under section 3.24(1)(b) of the Motor Accidents Injuries Act 2017 (the 2017 Act); whether treatment and care are reasonable and necessary or relates to the injury under section 3.24(2) of the 2017 Act; dispute as to whether treatment reasonable and necessary and whether related to injury sustained; Schedule 2 limits merit reviews to the cost of treatment and care; no jurisdiction to determine dispute; Held- necessary to make an application for a medical assessment; not a merit review matter; application dismissed as no jurisdiction.
Decision date: 21 January 2022| Merit Reviewer: Michael Sofoulis
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; meaning of earner schedule 1, clause 2; whether the claimant is an earner; burden of proof; Held- insufficient evidence to establish earner; section 6.24 duty to co-operate; failure to co-operate; the reviewable decision is affirmed
Decision date: 24 January 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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