Legal Bulletin No. 113
This bulletin was issued on 2 June 2023
Issued 2 June 2023
Welcome to the one hundred and thirteenth 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 Decisions
Workers Compensation Act 1987; validity of a claim for permanent impairment compensation pursuant to section 66; claim made and resolved by way of complying agreement; construction of a complying agreement under section 66A; Cram Fluid Power Pty Limited v Green applied; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors, Campbelltown Tennis Club Ltd v Lee, Warwar v Speedy Courier (Australia) Pty Ltd and Di Paolo v Cazac Constructions (NSW) Pty Ltd considered and applied; limit of one claim for permanent impairment pursuant to section 66(1A); ADCO Constructions Pty Ltd v Goudappel applied; Woolworths Ltd v Stafford considered; finality of a complying agreement; reasons in Yildiz v Victoria Yeeros Pty Ltd considered; principles of finality in R v Unger and Despot v Registrar-General of New South Wales adopted; Held – the Certificate of Determination dated 18 May 2022 is confirmed.
Decision date: 24 May 2023 | Before: President Judge Phillips
Workers Compensation Act 1987; section 60; whether provision of hearing aids is reasonably necessary; assertion by employer to the Member that the suffering of tinnitus was not work related; the Member proceeded on the basis that tinnitus was not disputed; whether Member proceeded on an incorrect basis; Held – the Certificate of Determination dated 31 January 2022 is revoked; the matter is remitted for re-determination by a different member.
Decision date: 23 May 2023 | Before: Acting Deputy President Kylie Nomchong SC
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; claimant a 23-year-old woman; 17 years old at the time of the accident; passenger; stoic demeanour; claimant wanted to become a high school teacher; physical injuries and chronic post-traumatic stress disorder in combination with a persistent depressive disorder; insurer admitted breach of duty of care with no allegation of contributory negligence; non-economic loss; economic loss; loss of vocational opportunity; Held – the amount of damages for this claim is $606,600which includes the statutory benefits paid by the insurer; award for costs.
Decision date: 18 April 2023 | Member: Hugh Macken
Motor Accident Injuries Act 2017; claim for damages for motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitation period; damages; reasonable person in claimant’s circumstances; legal advice given on time limits before 3rd anniversary of motor accident; claimant failed to respond to her solicitor’s communications seeking instructions; pandemic; claimant’s inconsistent statements; medical evidence and corroborating evidence confirmed mental disorder; mental disorder impaired claimant’s ability to respond to legal advice; claimant’s son’s evidence is that she required his assistance to complete forms and correspondence and that her circumstances were she could not manage without his help; Held – late claim can be made as claimant had a full and satisfactory explanation for delay.
Decision date: 1 May 2023 | Member: Terence O'Riain
Motor Accident Injuries Act 2017; assessment of claim for damages; liability and quantum of damages in dispute; claimant the driver of sedan that was involved in a collision with an oversized truck on North Rocks Road, Carlingford NSW; claimant alleged insured truck overtook her on the right and swerved into her vehicle travelling in lane one of two; insured driver alleged the claimant “undertook” his vehicle on the left; consideration of expert evidence of traffic engineer; alternative argument made that the accident constitutes a “no-fault” accident within the meaning of section 5.1; consideration of Melenewycz v Whitfield; issues of credit; Held –the insured did not breach his duty of care to the claimant; insured’s version of events more plausible; claimant found to be an unreliable witness; alternative “no-fault” accident argument found to be misconceived; the claimant has no entitlement to damages.
Decision date: 10 May 2023 | Member: Elizabeth Medland
Motor Accident Injuries Act 2017; whether for the purposes of section 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident; the claimant was a pedestrian and was attempting to cross Phillip St Newtown; as he was crossing the street he was struck by the insured vehicle which was attempting to reverse back down Phillip St; both parties failed to keep a proper lookout the insurer alleged 50% contributory negligence with regard to the claimant; Held – for the purposes of section 3.38, the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%; the claimant entitled to payment of legal costs assessed at the maximum regulated fee.
Decision date: 15 May 2023 | Member: David Ford
Motor Accident Injuries Act 2017; whether for the purposes of sections 3.11 and 3.28 the accident was caused wholly or mostly by the fault of the claimant; where insurer alleged contributory negligence of 65%; accident in the early morning on a country road with single lanes in each direction; where the claimant failed to activate his right hand indicator, and commenced a right hand turn into the path of the insured driver’s vehicle, that he knew was travelling in the southbound lane; where the insured driver had formed the view that the claimant was going to make a right hand turn, and knew, or ought to have known, that he was going to do so imminently; Held – the accident was caused by the fault of both drivers; finding that the claimant’s contributory negligence was greater than 61% would not be just and equitable; for the purposes of sections 3.11 and 3.28 the accident was not caused mostly by the fault of the claimant.
Decision date: 22 May 2023 | Senior Member: Brett Williams
Claims assessment application; proceedings commenced by claimant to refer his claim for damages for assessment; claim not ready for assessment; application by claimant to refer the proceedings to the stood over list on the basis of a pending medical dispute; where there is no medical dispute on foot; whether the proceedings should be dismissed; sections 4.4 and 7.32(3) of the Motor Accident Injuries Act 2017 considered; section 54 of the Personal Injury Commission Act 2020 considered; Rule 77 of the Personal Injury Commission Rules 2021considered; Held – proceedings dismissed as misconceived or lacking in substance.
Decision date: 24 May 2023 | Member: Maurice Castagnet
Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether claimant mostly at fault; claimant pedestrian hit at about 4.00am on dark country highway; driver travelling at under 80 kms in a 100 kms zone with light on low not high beam; claimant walking in westerly direction on northern side of the highway; driver travelling in easterly direction in northern lane of two lanes; evidence from claimant, driver, independent witness, police officer and claimant’s family; issues of proper lookout (both claimant and driver), where claimant was standing and whether claimant had been taking drugs and his judgment impaired as a result; insurer conceded fault on part of driver; matter determined on the papers; Held– driver travelling below the speed limit but without headlights on high beam was not reasonable in the circumstances; claimant standing in middle of the lane attempting to wave down traffic; claimant saw approach of vehicle and saw it was not going to stop; reasonable person would have stood to the side of the road not in the middle of the road and would have moved further off the road on seeing the approaching vehicle; claimant contributorily negligent; no expert evidence; evidence as to drug taking and intoxication not tested due to assessment of the papers and therefore unreliable; no finding on impaired judgment; claimant’s contributory negligence assessed at 70%.
Decision date: 25 May 2023 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Claim for surgery to the cervical spine; whether cervical spine injured on the two injurious dates pleaded; whether clinical notes supported claim; Held – no contemporaneous support for worker’s assertion that he was complaining of neck pain whilst investigations and recorded complaints were concerned with the thoracic and lumbar spinal areas; danger of relying on health professional notes considered; Qannadian v Bartter Enterprises Pty Limited and Collins v Bunnings Group discussed and applied; award for the respondent.
Decision date: 19 May 2023 | Member: John Wynyard
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted lumbar injury in January 2019; in April 2021 applicant injured his left forearm while using an angle grinder; whether condition at left forearm resulted from the lumbar injury; lack of contemporaneous evidence of back spasm causing the angle grinder injury; inconsistencies in the histories subsequently recorded as to how the incident occurred; lack of medical explanation of why any back spasm whilst using the angle grinder was causally related to the work injury two years earlier; Held – applicant failed to discharge evidentiary onus; consent order made for payment of lump sum compensation in respect of permanent impairment at the lumbar spine only.
Decision date: 19 May 2023 | Member: Rachel Homan
Workers Compensation Act 1987; claim pursuant to section 60 for costs of and incidental to right shoulder arthroscopy and excision of the acromioclavicular joint; whether the need for surgery arose from workplace injury or was to correct pre-existing degenerative pathology; Held – the proposed surgery is reasonably necessary as a result of the work injury; award for the application for the costs of and incidental to the procedure.
Decision date: 22 May 2023 | Member: Diana Benk
Claim for permanent impairment compensation; liability for injury to cervical spine accepted; applicant also claimed to have sustained injury to left shoulder; issue as to whether symptoms in applicant’s left shoulder were the result of radicular symptoms from his cervical spine, or the result of a discrete injury to his left shoulder; consideration of Nguyen v Cosmopolitan Homes; Held – award for respondent for injury to left shoulder; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to cervical spine.
Decision date: 23 May 2023 | Senior Member: Kerry Haddock
Weekly compensation; calculation of pre-injury average weekly earnings (PIAWE) and whether a period when the applicant, who was a casual employee, was on unpaid leave within the relevant earnings period should be excluded from calculation of the period for determining his PIAWE; only issue for determination was the amount of the applicant’s PIAWE by reference to whether a certain period should be excluded from the relevant earnings period; Held –clause 8E of the Workers Compensation Regulation 2016 applies; the relevant earning period for the calculation of the applicant’s PIAWE is to be adjusted by excluding each day of the period during which he was on unpaid leave; parties’ agreement for PIAWE was in the sum of $1,643.71 per week; parties ordered to lodge consent orders.
Decision date: 23 May 2023 | Member: Cameron Burge
Workers Compensation Act 1987; sections 32A and 37 and Schedule 3, clause 9; applicant disputed work capacity assessment which assessed him with the capacity to work 12 hours per week as a stationary machine operator; “suitable employment”; Wollongong Nursing Home v Deware, Giankos v SPC Ardmona Operations Ltd, Jones v Dunkel, McCabe Terrill Lawyers v A, Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart and Ric Developments t/as Lane Cove Poolmart v Muir applied; Held – the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022; the applicant has no current work capacity and has had no current work capacity since 21 June 2022.
Decision date: 24 May 2023 | Member: John Turner
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; threshold injury dispute for psychological injury; claimant involved in four separate motor accidents over short period; prior psychological history; discussion of common law and statutory principles of test of causation for psychological injury; rejection that principles in State Government Insurance Office v Oakley applied; Slade v Insurance Australia Ltd applied; reference to SIRA Motor Accidents Guidelines (Version 9.1, commencement on 1 April 2023) as to test for injury; Briggs v IAG Ltd (No 2) applied; observations by Windeyer J in Federal Broom Co Pty Ltd v Semlitch referred to; Held – claimant suffered threshold psychological injury; original assessment revoked.
Decision date: 16 May 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Atsumi Fukui | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; the claimant suffered injury on 10 September 2019 in a T-bone collision; the dispute related to the assessment of permanent impairment; claimant re-examined; frank injury to shoulders not established; claimant had referred pain providing loss of movement; range of movement not a valid measurement of impairment given inconsistency observed in reports; Panel satisfied that transverse fractures sustained in the motor accident; not assessed unless there is displacement; clause 6.149 of the SIRA Motor Accidents Guidelines (Version 9.1, commencement on 1 April 2023); Held – original assessment revoked.
Decision date: 16 May 2023 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Rhys Gray | Injury module: Spine, Upper and Lower Limb
Review of certificate of Medical Assessor (MA) Home of 9 May 2022; claimant was riding a motorcycle with a pillion passenger when he was struck by a police car on his left side; claimant was thrown to the road injuring his left hip, left knee, right hand and right thumb; MA found whole person impairment (WPI) of 10% in his certificate but referred to methodology applied by American Medical Association Guides to the Evaluation of Permanent Impairment (AMA), 5th edition and not 4th edition AMA; clinical examination undertaken and claimant assessed as having 12% WPI; Held – certificate of MA revoked.
Decision date: 18 May 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb
Review of certificate of Medical Assessor (MA) Assem dated 30 March 2022 and whole person impairment (WPI) assessment; claimant’s application for review of WPI assessment of 9% concerning cervical spine, lumbar spine, right shoulder, left shoulder, left knee and left hip; claimant involved in head on collision on 4 June 2018; issue considered about when complaints injury made; causation considered to consider the claimant’s assertion that the medical assessor failed to engage with the material and incorrectly determined causation; consideration of the impact of subsequent fall by the claimant and injuries arising from this; claimant medically examined by the Panel and complaints considered in light of extensive radiological investigations; Held – Panel satisfied that as a direct consequence of the accident the claimant suffered injuries to his cervical spine, lumbar spine, right shoulder; WPI assessed at 11%.
Decision date: 18 May 2023 | Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in failing to exclude permanent impairment resulting from secondary psychological injury; Held – Medical Assessment Certificate set aside; matter remitted for determination by the Personal Injury Commission as to whether there was primary and/or psychological injury, and that nature of each.
Decision date: 19 May 2023 | Panel Members: Member Richard Perrignon, Dr Douglas Andrews and Dr Graham Blom | Body system: Psychological/Psychiatric
The appellant submitted that the Medical Assessor (MA) erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the categories of social functioning and concentration, persistence and pace when there should have been a finding of a class 3 impairment in both categories; Panel considered all of the evidence; Panel concluded that the MA’s assessment was consistent with all of the evidence; Held – Medical Assessment Certificate confirmed.
Decision date: 22 May 2023 | Panel Members: Member Deborah Moore, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Appeal by applicant worker against Medical Assessment Certificate (MAC) containing an assessment of 6% whole person impairment as a result of psychological injury; appellant alleged the Medical Assessor had erred in respect of his assessment of the categories of social and recreational activity, travel, concentration, persistence and pace, and employability; Held – Panel determined that the appellant should be re-examined because of errors found in at least three of the categories in respect of which appeal brought; finding of error in respect of the four categories in respect of which appeal brought; MAC revoked and fresh MAC issued.
Decision date: 22 May 2023 | Panel Members: Member Brett Batchelor, Dr Douglas Andrews and Dr Graham Blom | Body system: Psychological/Psychiatric
Assessments under the Table of Disabilities for injuries received before 1 January 2002 and Whole Person Impairment (WPI) as a threshold issue; error necessitating re-examination; Held –Medical Assessment Certificate revoked in respect of Table of Disabilities assessment and confirmed in respect of WPI assessment.
Decision date: 23 May 2023 | Panel Members: Member Jane Peacock, Dr Drew Dixon and Dr Mark Burns | Body system: Lumbar Spine, Back, Right and Left Leg and Bowel Function
Impairment resulting from primary psychological injury; worker appealed self-care and personal hygiene in the Psychiatric Impairment Rating Scale (PIRS) categories; Panel satisfied that there was no error or application of incorrect criteria in that PIRS category, and it was open to the Medical Assessor to make an assessment of class 2 for self-care and personal hygiene; Held – Medical Assessment Certificate confirmed.
Decision date: 23 May 2023 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Fall from a horse; multiple injuries; assessment in relation to impairment from psychological injury and assessment of the nervous system the subject of appeal; appeals heard together; re-examination undertaken in respect of the psychological injury; Medical Assessment Certificate (MAC) revoked; in respect of the nervous system, the Medical Assessor was correct to hold there was no rateable impairment according to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021, but the MAC was revoked because he should have assessed 0% whole person impairment instead of stating “unable to be assessed”; Held – MAC revoked.
Decision date: 23 May 2023 | Panel Members: Member Jane Peacock, Dr Michael Hong and Dr Michael Davies | Body system: Psychological/Psychiatric and Nervous System
Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make any allowance for the effects of treatment, and applied inconsistent reasoning with respect to the deduction he made pursuant to section 323; Panel considered all of the evidence; Panel concluded that there was no evidence to support any substantial improvement in the appellant’s condition such that there should be no allowance for the effects of treatment; Panel agreed however that the deduction made by the Medical Assessor was excessive and that a 1/10th deduction was consistent with the evidence; Held –MAC revoked.
Decision date: 24 May 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of psychological injury of 12% whole person impairment; whether appellant’s dependency on methamphetamine relevant to the question of maximum medical improvement (MMI); Held – section 319 requires a medical dispute to be present; the medical experts retained by each party confirmed that MMI had been reached; accordingly, there was no dispute about MMI; Medical Assessment Certificate confirmed.
Decision date: 24 May 2023 | Panel Members: Member John Wynyard, Dr Graham Blom and Dr Michael Hong | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; merit review; dispute about whether the insurer is entitled to issue a direction under section 6.26 as at 30 June 2022,seeking relevant particulars from the claimant, as required by section 6.25; application for assessment of damages; whether the claimant has failed to provide all relevant particulars “without reasonable excuse” prior to the direction being issued; whether the claimant is taken to have withdrawn his claim for damages for failing to comply with the direction; Held – the insurer was not entitled to issue a direction to the claimant under section 6.26 as at 30 June 2022.
Decision date: 17 May 2023 | Merit Reviewer: Maurice Castagnet
Motor Accident Injuries Act 2017; merit review; dispute about payment of reasonable and necessary other costs and expenses under Part 8; whether medico-legal report fees subject to a maximum amount payable; whether interpreter fees reasonable and necessary; sections 8.10 and 8.4, Schedule 2(1)(aa); Clauses 20, 22, 27 and 28, Schedule 1(1) of the Motor Accident Injuries Regulation 2017; Held –the reviewable decision is set aside.
Decision date: 18 May 2023 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings (PAWE); meaning of earnings; Schedule 1, clause 4; self-employment; types of business expenses; whether only costs of sales are deducted from gross business profit for PAWE; whether other expenses are proceeds of the business; whether earnings as an earner are the gross profit or net income of the business; Held – the reviewable decision is set aside.
Decision date: 24 May 2023 | 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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