Legal Bulletin No. 78

Issued 16 September 2022

Welcome to the seventy-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 Decision

Williams v Cubbyhouse Childcare NSW Pty Ltd [2022] NSWPICPD 36

WORKERS COMPENSATION – section 11A(1) of the Workers Compensation Act 1987 – application of Manly Pacific International Hotel Pty Ltd v Doyle; Northern NSW Local Health Network v Heggie; Jeffery v Lintipal Pty Ltd – error in applying s 789FD of the Fair Work Act 2009 (Cth) in the application of section 11A(1) of the 1987 Act.

Decision date: 7 September 2022 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as GIO v Catt [2022] NSWPIC 489

Approval of proposed settlement; section 6.23 of the Motor Accident Injuries Act 2017; vehicle crossed double yellow lines and collided with the front of the claimant’s vehicle; airbags inflated; the claimant sustained multiple lacerations and abrasions to his hands and face; the car was filled with smoke and the claimant thought he would die; the claimant sustained an intra-articular fracture of the base of the 5th metacarpal; soft tissue injuries to his left knee and right foot and a post-traumatic stress disorder assessed by Dr Wayne Mason at 15% WPI; proposed settlement of $600,000.00 made up of non-economic loss of $300,000.00; past economic loss of $30,000.00 buffer and future economic loss of $270,000.00 on a global buffer basis; settlement approved.

Decision date: 29 August 2022| Member: Terence Stern

Gohari v QBE Insurance (Australia) Limited [2022] NSWPIC 490

Duty, breach and injury disputed; claim made as annexure to application to assess damages in the Personal Injury Commission (Commission); claimant is workers compensation claimant; claimant requires surgery; claimant not in position to attempt settlement due to claimant not being medically stable; defective vehicle alleged; where claimant not in position in relation to quantify permanent impairment and non-economic loss; failing to serve damages claim prior to filing application to assess damages; Held — taking into account the claim circumstances for the purposes of section 7.32(3) of the Motor Accident Injuries Act 2017 (2017 Act); the claimant had not used best endeavours to settle the claim before referring it for assessment; proceedings will not be dismissed; dismissal grounds limited to grounds in rule 77 Personal Injury Commission Rules 2021; arguable claim; dismissing application to assess damages would not have furthered or promoted 2017 Act objects nor facilitated the just, quick and cost effective resolution of the real issues in the proceedings; to give effect to the guiding principle in section 42 of the Personal Injury Commission Act 2020; Leary v Allianz Australia Insurance Limited agreed with; section 6.32(3) of the 2017 Act imposes monetary threshold to court proceedings made more than 3 years after accident; extra costs and delay; referred to Stood Over List in accordance with Procedural Direction MA1-Stood over proceedings.

Decision date: 30 August 2022| Member: Terence O'Riain

Insurance Australia Limited t/as NRMA Insurance v Willson [2022] NSWPIC 491

Settlement approval; 51 year old male; rider of a motorcycle involved in a collision with an unidentified motor vehicle; sustained fracture of the scapular blade inferior to the glenohumeral joint of the left shoulder; fracture of the eighth rib; multiple abrasions; no allegation of contributory negligence; insurer conceded claimant entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; Held – The proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017.

Decision date: 1 September 2022| Member: David Ford

McGrath v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 492

Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (2017 Act); Schedule 2, clause (3)(g) of the 2017 Act; section 5R of the Civil Liability Act 2002; where the collision occurred in a roundabout; where the insurer determined  contributory negligence of 50% on the part of the claimant; application for exceptional costs under section 8.10(4) of the 2017 Act; Held – no contributory negligence on the part of the claimant; exceptional costs to the claimant permitted under section 8.10(4) of the 2017 Act; claimant’s reasonable and necessary costs assessed at $5,878.40 inclusive of GST.

Decision date: 2 September 2022| Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

State of New South Wales (NSW Police Force) v BAV & Ors [2022] NSWPIC 499

Claim for benefits in respect of death of a worker; liability accepted; claim by first respondent claiming to have been partner of worker disputed by fifth respondent worker’s brother; no claim by second, third and fourth respondents who entered into Deed with first respondent with respect to dispute in respect of the worker’s estate and disclaimed any dependency on the worker; claim by first respondent to have been partly dependent on worker; claim by fifth respondent to have been dependent on worker for emotional support; entitlement to interest conceded by applicant; agreement by applicant and first respondent on rate of interest; period during which interest to be paid not agreed; claim by first respondent for increase of 30% in costs, due to complexity; consideration of Youseph v Homebush Unit Trust t/as Primo Smallgoods; TNT Group 4 Pty Limited v Halioris; Richardson v Turfco Australia Pty Ltd; Warilla Timber and Hardware Pty Ltd v Newton; Albury Real Estate Pty Ltd v Rouse and anor; Kaur v Thales Underwater Systems Pty Ltd; and McGrath v P.M. Electric Pty Ltd & Ors; Held – first respondent was partly dependent on worker for support; no other persons were dependent on worker for support; lump sum benefit and interest to be paid to first respondent; applicant to pay first respondent’s costs as agreed or assessed; first respondent and applicant’s costs increased by 20% due to complexity of matter.

Decision date: 5 September 2022 | Senior Member: Kerry Haddock

Zajec v State of New South Wales (South Western Sydney Local Area Health District) [2022] NSWPIC 493

Claim for weekly benefits; permanent impairment compensation and medical expenses in respect of alleged consequential condition in right knee said to have arisen from accepted left knee injury; liability for consequential condition denied; Held –  the applicant suffered a consequential condition in her right knee as a result of the left knee injury; the bilateral total knee replacement surgeries were reasonably necessary as a result of the applicant’s injury and the consequential condition respectively; the respondent is to pay the costs of and incidental to the bilateral knee replacement surgeries; the respondent is to pay the applicant weekly compensation in the amounts claimed as amended at the hearing; the claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the whole person impairment arising from the injury and consequential condition.

Decision date: 5 September 2022| Member: Cameron Burge

O'Donnell v State of NSW (Illawarra Shoalhaven Local Health District) [2022] NSWPIC 494

Claim for weekly payments and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses arising out of injury to left elbow and ankle whilst an AIN; whether Chronic Regional Pain Syndrome (CRPS) like symptoms resulting from pre-disposition following simple sprain injuries had broken the causal chain; whether employment substantial contributing factor; Held – the applicant’s pre-disposition to CRPS like symptoms was not a relevant matter as to causation as an employer took a worker as it found him/her; State Transit Authority v Fritzi Chemmler applied; employment accordingly a substantial contributing factor; award applicant to limit of section 37 entitlement.

Decision date: 5 September 2022| Member: John Wynyard

Tuma v Wilkhahn Wilkening and Hahne Pty Ltd [2022] NSWPIC 495

Claim for closed period weekly payments until applicant’s retirement age; whether incapacity caused by admitted carpal tunnel/wrist injury; whether section 38(2) of the Workers Compensation Act 1987 (1987 Act) applicable and whether applicant had no current work capacity; Held – incapacity caused by admitted left carpal tunnel syndrome symptoms; applicant certified fit for full hours on restricted duties when terminated; applicant had capacity when terminated but due to age and injury after six months had no current work capacity; sections 38 and 32A of the 1987 Act considered; award pursuant to section 38(2) of the 1987 Act in favour of applicant.

Decision date: 6 September 2022| Member: John Wynyard

Sleiman v AGR Tyres Pty Ltd [2022] NSWPIC 496

Court of Appeal held that the applicant should be granted leave to appeal and the matter remitted to the Personal Injury Commission to determine the application on the basis it was an application to reconsider the 2017 decision of the Appeal Panel; Held – that the Certificate of Determination of 21 July 2017 is rescinded pursuant to section 350(3) of the Workplace injury Management and Workers Compensation Act 1998 (1998 Act) and the matter is referred back to the Appeal Panel for reconsideration pursuant to section 378 of the 1998 Act.

Decision date: 6 September 2022| Member: Carolyn Rimmer

Brassington v Blacktown City Council [2022] NSWPIC 497

Claim for surgery to left hip; consideration of section 4b(ii) of the Workers Compensation Act 1987 (1987 Act); Held – finding on injury for the applicant; finding that the proposed surgery was reasonably necessary and results from the applicant’s employment with the respondent and that the applicant is not precluded from making a claim pursuant to section 261 of the 1987 Act.

Decision date: 7 September 2022| Senior Member: Elizabeth Beiby

Williams v Sutherland Shire Council [2022] NSWPIC 498

Claim for weekly compensation in relation to the applicant’s left knee involving consideration as to whether injuries before and after 30 June 1985 contributed to incapacity for employment in period 3 November 2017 to 26 December 2017; Held – the applicant sustained a personal injury to his left knee on 10 June 1979 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017; the applicant also sustained an injury under section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) as a result of the aggravation of the disease in the left knee with the deemed date of injury of 29 August 2006 which has caused incapacity for employment in the period 3 November 2017 to 26 December 2017; the respondent is liable to pay the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week; pursuant to section 22 of the 1987 Act there is to be an apportionment of the respondent’s liability in the amount of 50% in respect of the injury on 10 June 1979 and 50% in respect of the disease injury; pursuant to section 22A (5)(b) of the 1987 Act the respondent in the interest of the self-insurer is to pay to the applicant weekly compensation in the period 3 November 2017 to 26 December 2017 at the rate of $478 per week; pursuant to section 22A(4) of the 1987 Act the respondent in the interests of IGF is to pay to the self-insurer 50% of the award of weekly compensation; there is to be an award for the respondent in the interests of its insurers AAI Limited t/as GIO, Allianz Australia Ltd and Employers Mutual Limited.

Decision date: 7 September 2022| Principal Member: Josephine Bamber

Motor Accidents Medical Review Panel Decision

Allianz Australia Insurance Limited v Taubman [2022] NSWPICMP 345

The claimant suffered injury in a motor accident on 29 May 2019 when his vehicle was hit causing it to roll over; the issues were whether the claimant sustained a non-minor injury and the assessment of any permanent impairment; no issues of principle; Panel satisfied that the claimant suffered post-traumatic stress disorder which is a non-minor injury; claimant had undergone psychological treatment of recent times and since the original assessment; psychological condition had improved which explained the change in impairment since the original assessment; Held – the Panel was satisfied that the motor accident caused a non-minor injury; claimant assessed at 6% permanent impairment.

Decision date: 17 August 2022| Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Matthew Jones | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Zhang [2022] NSWPICMP 346

The claimant suffered injury in a motor accident on 2 December 2015. the issue was the extent of any permanent impairment of psychiatric injury; the Medical Assessors referred to the pre-existing psychiatric condition and the delay in onset of symptoms and determined that there was no psychiatric injury caused by the accident; the Principal Member provided a minority decision referring to the evidence that showed aggravation of the psychiatric condition; the claimant’s claim was also based on her reaction to her physical condition; in these circumstances a delay in an aggravation of her psychiatric condition was explicable on the basis that it was a reaction to her physical condition; State of New South Wales v Bishop referred; Held – the Medical Assessors were not satisfied that the motor accident caused a psychiatric injury.

Decision date: 29 August 2022| Panel Members: Principal Member John Harris, Dr Paul Friend and Dr Doron Samuell | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Killman v CDK Stone Pty Ltd [2022] NSWPICMP 348

Appeal by worker against a deduction made pursuant to section 323(2) of the Workplace injury Management and Workers Compensation Act 1998 as a result of extraterritorial noise exposure in the Rhodesian Air Force in his late teens; Held – that the Medical Assessor erred in not addressing the history of noise in the appellant’s statement and in providing no description of the nature and extent of noise exposure in Rhodesia; Pereira v Siemens Ltd considered and applied; given the appellant’s 30 year plus history of exposure to industrial noise it was speculative to conclude that his impairment would have been less but for the exposure in Rhodesia; Medical Assessment Certificate revoked.

Decision date: 4 February 2022| Panel Members: Member Paul Sweeney, Dr Henley Harrison and Dr Paul Niall | Body system: ENT

Lamella v Catholic Education Diocese of Wollongong [2022] NSWPICMP 349

Psychological Injury; appellant alleged error in the deduction of one-half by the medical assessor (MA) in respect of a pre-existing psychiatric condition under section 323 of the Workplace injury Management and Workers Compensation Act 1998 (1998 Act); the Panel noted the MA’s use of the terms “mild” and “low dose” anti-psychotics in respect of the pre-existing condition; it is the contribution of the pre-existing impairment to the level of overall permanent impairment that must be assessed; paragraph 11.10 of the the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016 (the Guidelines) provides that a Permanent Impairment Rating Scale (PIRS) assessment is to be conducted in respect of the pre-existing condition and deducted from the results of the PIRS assessment in respect of the overall impairment; if this is too difficult a one-tenth deduction applies; Held – the MA did not conduct such an assessment stating that in fact that “the amount was impossible to ascertain”; in these circumstances in accordance with 11.10 of the Guidelines a one-tenth deduction applies; this accords with the provisions of section 323 of the 1998 Act that provides for a one-tenth deduction in circumstances where the extent of the deduction would be too difficult to assess as long as a one-tenth deduction is not at odds with the available evidence; the Appeal Panel did not consider that a one-tenth deduction was at odds with the available evidence noting the assessment by the MA of the pre-existing condition whilst chronic was mild prior to injury;  Medical Assessment Certificate revoked.

Decision date: 5 September 2022| Panel Members: Member Jane Peacock, Dr Patrick Morris and Dr Michael Hong | Body system: Psychological/psychiatric

Motor Accidents Merit Review Decision

Clark v QBE Insurance (Australia) Limited [2022] NSWPICMR 51

MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; meaning of loss of earnings: Schedule 1, Clause 3; meaning of post-accident earning capacity; Schedule 1, Clause 8; income from personal exertion; whether a travel allowance is income from personal exertion; whether a travel allowance forms part of post-accident earnings; Held – the reviewable decision is affirmed.

Decision date: 8 September 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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