Legal Bulletin No. 101
This bulletin was issued on 10 March 2023
Issued 10 March 2023
Welcome to the hundred and first 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; Workers Compensation Regulation 2016; clause 44; restrictions on reliance on forensic medical reports; Personal Injury Commission Act 2020; section 43; the Personal Injury Commission (Commission) may inform itself of any matter; alleged denial of procedural fairness; Ucar v Nylex Industrial Products Pty Ltd and Chanaa v Zarour applied; acceptance of evidence; Shellharbour City Council v Rigby applied; the Commission may have regard to evidence that would not be admissible in a court; Aluminium Louvres & Ceilings Pty Ltd v Zheng applied; Workers Compensation Act 1987; section 32A; Wollongong Nursing Home Pty Ltd v Dewar applied; Held – the Member’s Certificate of Determination dated 5 April 2022 is confirmed.
Decision date: 28 February 2023 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decision
Motor Accident Injuries Act 2017; dispute between insurers about which insurer was the relevant insurer within the meaning of section 3.2; claim made by injured person against Allianz; Allianz accepts liability for the claim and pays statutory benefits for first 26 weeks after accident; Allianz then denies liability to pay statutory benefits on basis claimant wholly at fault and has only minor injuries; Allianz then requests NRMA accept transfer of claim on basis that NRMA’s insured (the claimant) is wholly at fault; NRMA refuses; Held – power to determine dispute about relevant insurer under section 3.2 is limited to determining which insurer will accept a claim for statutory benefits; in circumstances where the claim has been accepted and benefits paid, there is no dispute; the Personal Injury Commission has no power under section 3.2 or elsewhere to determine whether Allianz can recover what it has paid from NRMA; consideration of section 3.3(1) and clause 4.24 – 4.28 of the Motor Accident Guidelines (Version 9, effective 15 January 2023) and the concept of when a claim is accepted.
Decision date: 27 February 2023 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987;the applicant claims permanent impairment compensation payable under section 66 resulting from alleged injury sustained to his cervical spine and lumbar spine in the course of his employment with the respondent; deemed date of injury of 23 February 2015; the applicant alleges he sustained injury to his cervical spine and lumbar spine as a result of the nature and conditions of his employment with the respondent (including but not limited to injury sustained to his lumbar spine on 19 February 2008 and 23 February 2015); the respondent disputed the applicant sustained injury to his cervical spine and lumbar spine in the course of his employment with the respondent; the respondent argued in the alternative that in the event the applicant was found to have sustained injury to his cervical spine and lumbar spine, such injuries should not be assessed together for the purpose of ascertaining whole person impairment (WPI); Held – the applicant sustained injury to his cervical spine and lumbar spine in the course of his employment with the respondent, with the applicant’s employment with the respondent being the main contributing factor to injury; the deemed date of injury is 23 February 2015; the applicant’s claim for permanent impairment compensation is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of WPI resulting from injury sustained to his cervical spine and lumbar spine in the course of his employment with the respondent with deemed date of injury of 23 February 2015.
Decision date: 24 February 2023 | Member: Jacqueline Snell
Claim for lump sum compensation; accepted shoulder injury; whether consequential cervical spine condition; shoulder injury required multiple surgeries; wearing of a sling following surgeries; applicant says weight of immobilised limb rested on his neck and caused awkward neck positioning; degenerative pathology at the cervical spine; failure to explain causal relationship by applicant’s expert; consideration of the totality of the evidence; Held – applicant sustained a consequential condition at the cervical spine; matter remitted for referral to a Medical Assessor to assess the degree of permanent impairment.
Decision date: 24 February 2023 | Member: Rachel Homan
Workers Compensation Act 1987; claim for weekly benefits and costs of proposed surgery; applicant poor historian; respondent conceded that incident occurred, but did not concede the date of injury or causation; consideration of Mason v Demasi, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Hancock v East Coast Timber Products Pty Limited, New South Wales Police Force v Winter and Kooragang Cement Pty Ltd v Bates; Held –award for the applicant of weekly benefits and costs of surgery; submissions directed on pre accident average weekly earnings (PIAWE) and section 38.
Decision date: 24 February 2023 | Senior Member: Kerry Haddock
Weekly payments and medical expenses claim in relation to an alleged work-related respiratory condition in the nature of a disease said to be caused by an infestation of mould in the workplace; the applicant alleged she was exposed to mould in her workplace which in turn caused a respiratory condition known as chronic inflammatory response syndrome; the respondent disputes the applicant suffered a work-related injury and denied her employment was the main contributing factor to the development of her respiratory illness; Held – award for the respondentHeHJ.
Decision date: 28 February 2023 | Member: Cameron Burge
Workers Compensation Act 1987;claim for compensation for psychological injury; claim for weekly payments and medical expenses; no dispute that the applicant sustained psychological injury arising out of or in the course of her employment with the respondent; no dispute that her injury was wholly or predominantly caused by action in respect of performance appraisal/discipline; dispute whether the respondent’s action was reasonable; the applicant did not dispute that the respondents action was reasonable in certain respects; applicant disputed that what happened between otherwise reasonable action was not reasonable; absence of satisfactory evidence from the respondent about what was claimed to have occurred between otherwise reasonable action; Held –finding that the respondent has not discharged its onus in respect of the section 11A defence; no dispute made to the applicant’s lack of capacity for employment as claimed; award for the applicant.
Decision date: 1 March 2023 | Member: Jill Toohey
Motor Accidents Medical Review Panel Decisions
The claimant suffered injury in a motor vehicle accident on 21 July 2017; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were neck, left shoulder, right elbow (fracture of proximal radius and ulnar nerve entrapment), right wrist (right trapezoid fracture); right index finger, right middle finger, left knee and scarring; dispute as to causation of injury to neck, left shoulder and left knee; question of whether left shoulder injury was caused by overuse; Held – soft tissue injury to cervical spine caused by accident; soft tissue injury to left knee caused by accident but recovered shortly after accident; soft tissue injury and superior labral anterior posterior (SLAP) tear to left shoulder caused by inability to use right arm or tendency to favour right arm due to injury to right wrist and fingers; cervical spine assessed as diagnosis related estimate (DRE) cervicothoracic category I or 0% whole person impairment (WPI); injury to the left shoulder assessed at 2% WPI; combined right upper extremity (right wrist and right index finger) assessed at 4% WPI; scarring assessed using TEMSKI scale at 2% WPI; Panel finds total WPI of 8%.
Decision date: 30 January 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; the claimant suffered an injury when the insured vehicle veered into the claimant’s lane of travel causing a collision; medical dispute about whether the motor accident caused a non-minor injury within the meaning of the Act; Panel concluded that the claimant suffered a non-minor injury to the right shoulder; shoulder scan taken in October 2020 showed a partial tear which was not present in the 2017 scan; the October 2020 scan also showed no muscle belly atrophy which is consistent with recent injury as it showed a lack of wasting; the claimant suffered from right shoulder symptoms consistent with the shoulder pathology; the mechanism of injury was consistent with the accident as the claimant’s right arm was outstretched and internally rotated whilst holding the steering wheel in the subject accident; Held –original assessment revoked; findings made that claimant sustained a non-minor injury to the right shoulder; order made for payment of some of the treatments claimed.
Decision date: 23 February 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry and Dr Trudy Rebbeck | Injury module: Spine, Upper and Lower Limb
Claimant injured on 6 August 2018; claimant was injured in a rear end collision as the driver of a car hit from behind; claimant taken to hospital and diagnosed with the following injuries: laceration, right eyebrow, which was sutured; injury to his cervical and lumbar spines; injury to both shoulders; injury to the left elbow and pain in both legs, but particularly the right knee; review application related to whether the following injuries are minor injuries: skin, lacerations to the right eyebrow and eyelid requiring suturing; left elbow, pain and restriction requiring the surgical removal of an existing pin and plate; left shoulder, partial thickness tear; consideration of whether injuries to the skin by way of abrasions or sutures or an incision through surgery as well as injuries to left elbow and left shoulder are minor injuries; consideration of whether injury to left elbow requiring removal of a pin and plate causally related to the accident; consideration of whether a laceration to the claimants right eyebrow is a non-minor injury; excision of skin and removal of a pin and plate from bone, and a left shoulder partial thickness tear are soft tissue and minor injuries or non-minor injuries; consideration of the objects of the Motor Accident Injuries Act 2017 and the application of the Interpretation Act 1987; Held – conclusion of the Panel that the injury to the claimants right eyebrow is an injury to soft tissue and a minor injury; the injury to the claimants left elbow was caused by the accident; the need for surgery on the claimant’s left elbow was caused by the accident; surgery to the claimants left elbow was treatment only and the cutting of the claimant’s skin in the course of that surgery is a minor injury; injury to the claimants left shoulder causing a partial thickness tear is not a soft tissue injury and is a non-minor injury.
Decision date: 19 January 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb and Skin
Workers Compensation Medical Appeal Panel Decisions
Accepted injury to right hand; Medical Assessor (MA) assessed right upper extremity impairment on the basis of restricted range of motion in the right shoulder; employer appealed; there has never been a report of injury to the right shoulder; there has not been any claim made in respect of injury to the right shoulder and the independent medical expert (IME) qualified on behalf of the worker and upon whose report the claim for lump sum compensation is based, has made no assessment of impairment of the right shoulder; the MA is required to assess impairment as a result of injury; in these circumstances the Appeal Panel was satisfied that the MA made a demonstrable error when he assessed impairment of the right upper extremity based on the restricted range of motion of the right shoulder; Held – Medical Assessment Certificate revoked.
Decision date: 23 February 2023 | Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder| Body system: Lumbar Spine, Right Upper Extremity, Right and Left Lower Extremity
Workplace Injury Management and Workers Compensation Act 1998; worker alleges that fresh evidence impugned the classification of the Approved Medical Specialist (AMS) in four psychiatric impairment rating scale (PIRS) categories and/or established deterioration; that AMS had given insufficient reasons for his finding of maximum medical improvement (MMI); and that the AMS erred in his classification of four PIRS categories; Held – the additional statements of the worker and further reports of a psychologist and psychiatrist did not constitute fresh evidence within section 327(1)(b) as they were either available prior to the assessment or merely reiterated opinions which were before the AMS on assessment; the evidence did not establish a deterioration which resulted in an increase in permanent impairment; the AMS gave adequate reasons for finding MMI; there were errors in the AMS’s classification of Social functioning and Employability warranting re-examination; as more than two years had elapsed since the original Medical Assessment Certificate (MAC) it was appropriate to reassess each of the PIRS categories; after re-examination MAC revoked and new MAC issued.
Decision date: 24 February 2023 | Panel Members: Member Paul Sweeney, Dr Douglas Andrews and Dr Nicholas Glozier| Body system: Psychological/Psychiatric
Psychological injury; assessment under psychiatric impairment rating scale; PIRS; alleged errors with respect to concentration, persistence and pace and employability; Jenkins v Ambulance Service, Ferguson v State of New South Wales and Parker v Select Civil considered; assessment of concentration, persistence and pace inconsistent with worker’s abilities; Held – Medical Assessment Certificate revoked.
Decision date: 27 February 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Nicholas Glozier| Body system: Psychological/Psychiatric
Assessment of a psychiatric injury; appellant employer submitted that Medical Assessor (MA) exceeded his jurisdiction in considering events outside the referral; that the MA assessed an incorrect whole person impairment (WPI) because he took into account incidents that ought not have been taken into account; that MA failed to assess the correct WPI as he failed to reduce the impairment for pre-existing condition and a subsequent condition; Held –Panel confirmed the Medical Assessment Certificate as any error did not lead to a different result.
Decision date: 28 February 2023 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier| Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings; PAWE; schedule 1, clause 4; whether change in earning circumstances, when change occurred; cl 4(3); cl 4(2)(b); when earner began earning continuously; cl 4(2)(a); sole trader; business expenses; GST; earnings received as an earner; COVID-19 lockdown; Held –the reviewable decision is set aside.
Decision date: 28 February 2023 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017; merit review; motorcycle; pre accident weekly earnings (PAWE); COVID-19 payments (payments); dispute over calculation the claimant’s PAWE and whether payments can be included as earnings; Held – no adjustment to claimant’s earning period where a change to his employment arrangements as a result of the COVID-19 pandemic; payments are not earnings received by the claimant as an earner and are excluded from the calculation of PAWE; claimant not earning continuously for over 12 months; claimant’s PAWE should be calculated under sub-clause 4(2)(a) of Schedule 1; weekly average of gross earnings received from when the earner started to earn continuously to immediately before the day of the motor accident; remitted to the insurer for reconsideration and recalculation of the claimant’s PAWE and statutory benefits; decisions followed: Alliance Insurance Australia Limited v Shahmiri; Conde v Insurance Australia Limited t/as NRMA Insurance.
Decision date: 6 January 2023 | Merit Reviewer: Ray Plibersek
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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