Legal Bulletin No. 47
This bulletin was issued on 11 February 2022
Issued 11 February 2022
Welcome to the forty-seventh 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.
WORKERS COMPENSATION – leave to appeal an interlocutory decision; regulation 44 of the Workers Compensation Regulation 2016; reliance by the employer on two medical experts from the same specialty; worker refused to submit to a further examination by the first expert and the employer requested the worker submit to an examination by a second medical expert; the employer sought to rely on the reports of both experts; reference to repealed Workers Compensation Commission Rules 2011 in reasons; procedural fairness.
Decision date: 31 January 2022 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Miscellaneous claims assessment; collision between two cars in a carpark; subsequent collision with a fence and a tree; one or two accidents; two different insurers; relevant insurer; hearsay evidence; did the claimant have a medical episode; did the claimant press her accelerator instead of her brake; interpretation and use of photographs; contributory negligence; “agony of themoment”; onus of proof; rules of evidence; standard of persuasion; Commission procedure; cases considered Vines v Djordjevitch, Epeabaka v Minister for Immigration and Multicultural Affairs, Minister for Immigration and Ethnic Affairs v Pochi, Sullivan v Civil Aviation Safety Authority, Beezley v Repatriation Commission; Held - QBE Insurance (Australia) Ltd is the relevant insurer for the purposes of sections 3.2 and 3.3 theMotor Accident Injuries Act 2017 (MAI Act); motor accident was not caused wholly by the fault of the claimant; no contributory negligence by the claimant; sections 3.28 and 3.38 the MAI Act; Commission to make findings of fact based on material that is logically probative, relevant and reliable; when making a decision the Commission must examine the evidence and then be satisfied or persuaded that the evidence satisfies the requirements of the legislation; to say that is not to impose an “onus of proof” on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a statutory benefit; photographs should not be used by a decision-maker to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural per Tobas JA Blacktown City Council v Hocking; contributory negligence and “defence” of “agony of the moment”; Stuart v Walsh followed; claimant awarded maximum regulated legal costs against each insurer; no “exceptional circumstances” legal costs awarded.
Decision date: 25 January 2022| Member: Ray Plibersek
Late claim dispute under section 73 of the Motor Accident Compensation Act 1999; claim originally lodged on different insurer and was denied on the basis that the insured vehicle was not involved in the accident; further claim form subsequently lodged on the Nominal Defendant, however, out of time; consideration of whether the claimant’s explanation for the delay was full and satisfactory; Held - the explanation was not full as it was not a full account of the claimant’s knowledge and belief.
Decision date: 25 January 2022| Member: Elizabeth Medland
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act); driver of a motor vehicle drove over a piece of timber causing it to be propelled from underneath its tyre and strike the claimant in the left foot; claimant sustained a penetrating wound causing laceration and tendon damage requiring surgical repair to the left foot and the subsequent development of a Morton’s neuroma requiring surgical excision; claimant returned to full-time work performing his normal supervisory duties two months following surgery with no restrictions; ongoing pain and discomfort in left foot managed with daily medication; ongoing sensation of numbness in the third and fourth toes; particular discomfort in the left foot by the end of the claimant’s 12 hour shift on his feet as a factory floor supervisor, irritated by his steel capped work boots; no entitlement to non-economic loss; whole person impairment assessed at 3%; allowance for past economic loss of $30,000; buffer of $70,000 for future loss of earning capacity and future loss of superannuation entitlements; Held - the total settlement of $100,586.36 is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities, the impairments and the losses sustained by the claimant, and taking into account the proposed reductions or deductions in the proposed settlement; the proposed settlement is approved under section 6.23(2)(b) of the MAI Act.
Decision date:27 January 2022 | Member: Anthony Scarcella
Workers Compensation non-Presidential Member Decisions
Claim made by the applicant under section 60 of the Workers Compensation Act 1987 (1987 Act) for the costs associated with the fitting of digital binaural hearing aids; whether digital binaural hearing aids are reasonably necessary treatment is in issue; Held – digital binaural hearing aids are reasonably necessary treatment resulting from work-related hearing loss and tinnitus; the respondent is to pay the costs associated with the fitting of digital binaural hearing aids in accordance with section 60 of the 1987 Act.
Decision date: 31 January 2022| Member: Jacqueline Snell
Respondent denied liability to applicant's left elbow and lumbar spine; applicant referred to doctor within hours of injury, completed an incident form on the respondent's letterhead, was given a rehabilitation plan on the date of injury, and attended physiotherapy the following week; whether inconsistencies in the contemporaneous evidence affected the applicant's onus; applicant's credit attacked as to alleged contrast in still photographs taken during video examination and surveillance of applicant turning his head whilst driving, and he was also seen attending a gym when he had told his qualified specialist that he had given up going to the gym; Held - as the incident form mention the lumbar spine, and as the left forearm was immediately x-rayed on the day of injury, the respondent's submissions regarding contemporaneous material were posed with an eye too keenly attuned to the perception of error; Qannadian v Bartter Enterprises Pty Limited applied; credit issues regarding surveillance not relevant as to whether injury had occurred in view of contemporaneous material, applicant’s explanation accepted in any event; matter referred to medical assessor on all injuries.
Decision date: 31 January 2022| Member: John Wynyard
Claim for weekly payments and medical expenses including proposed surgery to cervical spine; injury allegation nature and conditions of employment and specific work incidents; bilateral carpel tunnel syndrome and cervical spine injuries; prior certificate of determination – consent order with notation that respondent pay voluntary weekly payments; Held - applicant not estopped from claim weekly payments for whole period including matters subject of prior notation; authorities including Almario v Carrington Constructions Pty Ltd, Rose v Health Commission (NSW) andDiab v NRMA Ltd discussed; no findings and admissions to prevent applicant re-agitating weekly payments claimed; preponderance of medical opinion supports applicant’s incapacity, cervical spine and bilateral wrist injuries and reasonable necessity for surgery; no determination by the Commission so no estoppel; award in favour of applicant for weekly payments including declaration for section 60 of the Workers Compensation Act 1987 expenses and future cervical spine surgery.
Decision date: 31 January 2022| Member: Philip Young
Miscellaneous application filed by uninsured employer in response to demand by icare for payment of workers compensation benefits made to worker; employer claims the injury sustained by the worker was a disease injury and contribution can be made by third respondent who employed the worker in the 12 months prior to the injury, pursuant to section 16(2) of the Workers Compensation Act 1987 (1987 Act); icare and worker contend that the injury was as provided for by section 4(a) of the 1987 Act and not a disease injury; reference to Perry v Tanine Pty Ltd trading as Ermington Hotel, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd, and NSW Police Force v Gurnhill; different calculations of what should have been paid in weekly payments of compensation to the worker; whether employer required to pay weekly benefits made to worker pursuant to section 38 of the 1987 Act; Held – injury sustained by the worker pursuant to section 4(a) of the 1987 Act, and not a disease injury; no contribution to be paid by the third respondent; order for employer to make payment to icare pursuant to section 145 of the 1987 Act, including payments made pursuant to section 38 of the 1987 Act.
Decision date: 2 February 2022| Member: John Isaksen
Workers Compensation Medical Appeal Panel Decisions
Appellant challenged finding by the Medical Assessor (MA) that the worker suffered from Complex Regional Pain Syndrome (CRPS); Panel accepted that on the face of it there appeared to be some errors in the MA’s assessment failing to follow Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; re-examination required; Held - Panel found the criteria in each of the Sections 1, 2, 3 and 4 in Table 17.1 are satisfied and the diagnosis CRPS 1 is made; Medical Assessment Certificate confirmed.
Decision date: 31 January 2021| Panel Members: Member Deborah Moore, Dr J Brian Stephenson and Dr Drew Dixon | Body system: Right upper extremity
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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