Legal Bulletin No. 93
This bulletin was issued on 13 January 2023
Issued 13 January 2023
Welcome to the ninety-third 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; psychological injury; section 11A of the Workers Compensation Act 1987; reasonable action taken by an employer with respect to dismissal; Northern New South Wales Local Health Network v Heggie and Irwin v Director General of Education (Compensation Court of NSW) considered.
Decision date: 19 December 2022 | Before: President Judge Phillips
Workers Compensation; procedural fairness; whether Member failed to engage with the evidence and submissions made; dealing with ‘uncontradicted’ evidence; section 11A of the Workers Compensation Act 1987.
Decision date: 20 December 2022 | Before: Acting Deputy President Geoffrey Parker SC
Workers Compensation; section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; requirement to show error; Whiteley Muir & Zwanenberg Ltd v Kerr and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd applied.
Decision date: 20 December 2022 | Before: Deputy President Elizabeth Wood
Workers Compensation; the test of ‘injury’ in the course of and arising out of employment; application of Tarry v Warringah Shire Council, Humphrey Earl Ltd v Speechley, Nunan v Cockatoo Docks & Engineering Co Ltd and associated authorities; the drawing of inferences, application of Luxton v Vines and associated authorities.
Decision date: 22 December 2022 | Before: Acting President Michael Snell
Motor Accidents non-Presidential Member Decisions
Application for exemption on the basis this is a mental harm case; the father of the claimant suffered catastrophic injuries as a pedestrian when struck by a motor vehicle on 26 July 2019; the insurer has admitted breach of duty of care but alleges 25% contributory negligence which will impact upon the claimant’s mental harm claim; mental harm claims have also been brought by two of the siblings of the claimant who are under the age of 18 years and these proceedings have been commenced in the jurisdiction of the District Court at Sydney; the solicitor for the insurer has consented to the application for exemption as is appropriate all three matters should be determined at the same time in the same jurisdiction; complex issues of liability; “just” resolution of proceedings means claim not suitable for assessment; exemption recommended; Held – this claim is not suitable for assessment under section 7.34(1)(b) of the Motor Accident Injuries Act 2017.
Decision date: 7 December 2022| Member: David Ford
Miscellaneous claims dispute assessment; section 49 of the Personal Injury Commission Act 2020; rules 46, 47(1)(b), 47(3)(a), 50 and 51 of the Personal Injury Commission Rules 2021; Notice for Production issued to NSW Police; body camera footage; Surveillance Devices Act 2007; “protected information”;Surveillance Devices Regulation 2014; Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014; meaning of“called as a witness”; Held – the motor accident was not caused by the fault of the claimant or the injured person.
Decision date: 14 December 2022| Member: Bridie Nolan
Motor Accident Injuries Act 2017 (2017 Act);claimant seriously injured in motorbike vs car accident in September 2020; payment of statutory benefits refused on basis claimant had committed serious driving offence (cannabis in blood stream); issues as to whether that offence was related to the accident and whether the claimant had been charged with or convicted of the offence; Held – the charge related to the accident within the meaning of section 3.37(1) of the 2017 Act; the claimant was riding his motorcycle at the time; it was involved in a collision with another vehicle (the at fault vehicle) and it was that collision that caused the claimant’s accident and the claimant’s injuries; the claimant was charged with an offence, but the charges were dismissed with no conviction recorded under section 10(1) of the Crimes (Sentencing Procedure) Act 1999; the effect of that order was that the claimant was not convicted, and it was as if the charges had not been laid; claimant’s statutory benefits were payable.
Decision date: 14 December 2022| Member: Belinda Cassidy
Settlement approved; 56 year old male; rider of a bicycle involved in a collision with the insured motor vehicle; sustained fracture to the right tibia and right fibula underwent surgery being application of external fixateur of right tibial fracture with open reduction and internal fixation; further surgery to have the external fixateur removed; no allegation of contributory negligence; insurer concedes the claimant is entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; the proposed settlement is just, fair and reasonable; Held – the proposed settlement is approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017.
Decision date: 15 December 2022| Member: David Ford
Motor Accident Injuries Act 2017; statutory benefits claim application by claimant for determination that claimant is not wholly or mostly at fault; insurer conceded fault on the part of insured; amended allegation of contributory negligence from 70% to 50% and claimant conceded there was contributory negligence but not greater than 25%; claimant riding pushbike along main road in Kempsey when a collision occurred with the insured’s vehicle coming out of a KFC driveway; claimant alleged insured speeding; claimant made late allegation he was riding on foot path not the road; issue of visibility of insured by claimant and claimant by insured; no expert evidence and parties’ request to determine on the papers; Held– no independent or expert evidence of insured’s speed; member not satisfied claimant riding on road; Member not satisfied either claimant or insurer had a view of each other due to the presence of a parked truck and hedges obscuring their vision; claimant was riding on the road against the flow of traffic; claimant’s contributory negligence assessed at 50%; claim for costs of three miscellaneous claims assessment matters; costs allowed in each matter but not at the maximum amount for the two abandoned disputes.
Decision date: 19 December 2022| Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Psychological injury; dispute as to whether injury arising out of or in the course of employment as school learning support officer or whether injury caused by the NSW Government’s public health orders requiring double vaccination for COVID-19 virus; further issue as to whether respondent established defence under section 11A of the Workers Compensation Act 1987 (1987 Act); respondent had not had the applicant medically examined; Strinic v Singh discussed; Bjekic v State of NSW distinguished; Smith v Australian Woollen Mills Ltd, Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd, Nunan v Cockatoo Island Docks & Engineering Co Ltd, Attorney General v K and Hamad v Q Catering Limited applied; Held - the applicant sustained psychological injury arising out of or in the course of her employment; the applicant’s employment with the respondent was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease; the respondent has not established a defence under section 11A of the 1987 Act; the respondent is to pay the applicant weekly benefits compensationpursuant to sections 36(1) and 37(1) of the1987Actand treatment expenses pursuant to section 60 of the 1987 Act.
Decision date: 13 December 2022| Principal Member: Josephine Bamber
Applicant made claim for lump sum compensation for 20% whole person impairment (WPI) in respect of a psychological injury; respondent’s Independent Medical Examiner (IME) assessed 15% WPI; the respondent sought a further IME opinion from a psychiatrist who only reviewed some of the evidence and assessed 7% whole person impairment; a Medical Assessor assessed 5% WPI, so the applicant’s claim failed; the applicant’s solicitor sought an order for costs pursuant to clause 6 of Part 1 of Schedule 6 of the Workers Compensation Regulation 2016; opposed by the respondent; Kimber v NSW Police Force, Nahar v Arcadia Property Management Group Pty Ltd and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney discussed and applied; Held – respondent’s actions in not accepting liability when it had received a report that supported the applicant’s claim unacceptable; inconsistent with Model Litigant Policy; effectively invited the litigation and unnecessarily and unreasonably protracted the proceedings; respondent ordered to pay the applicant’s costs in the sum of $4,400.
Decision date: 13 December 2022|Principal Member: Glenn Capel
Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987; accepted left shoulder injury when arm wrenched backwards while transferring a patient; whether cervical spine injured in same event; whether consequential right shoulder condition resulting from surgery; Held – lack of contemporaneous medical evidence of cervical spine injury but frequent reference to symptoms and treatment in physiotherapist’s notes; inconsistencies between applicant’s evidence and clinical records in relation to a prior injury corrected by the time of the applicant’s final expert report; no reference to right shoulder symptoms in treating evidence; inconsistencies in the history relating to previous right shoulder injury not corrected; award for the applicant in respect of cervical spine injury; award for the respondent in respect of right shoulder condition; referral to a Medical Assessor to assess degree of permanent impairment.
Decision date: 13 December 2022| Member: Rachel Homan
Claim for compensation for medical treatment pursuant to section 60 of the Workers Compensation Act 1987; whether proposed spinal surgery was reasonably necessary as a result of a work injury; Held – the proposed surgery was reasonably necessary as a result of a work injury.
Decision date: 13 December 2022| Member: Carolyn Rimmer
The applicant is a resident of Victoria and allegedly suffered injuries giving rise to a claim of permanent impairment; the respondent is a private company with insurance under the NSW compulsory workers compensation scheme; a Tribunal cannot decide whether the determination involves an exercise of federal jurisdiction and should express a view consistent with the test set out in Citta Hobart Pty Ltd v Cawthorn; there are three requirements in determining whether a claim is potentially federally impacted, they are: jurisdiction can only be exercised by a court of a State; the resolution of the dispute requires the exercise of judicial power (“judicial” as understood in the constitutional sense) and the matter is between residents of different States or between a State and a resident of another State; observations made that the Commission is arguably not a court of a State; Orellana-Fuentes v Standard Knitting Mill Pty Ltd and Attorney-General for New South Wales v Gatsby referred to; observations made that, whilst unclear, the matter may involve the exercise of judicial power; Searle v McGregor and Tomlinson v Ramsay Food Processing Pty Ltd referred to; the respondent is a private company engaged in a cleaning business; the claim is brought against the employer pursuant to section 9 of the Workers Compensation Act 1987; whilst the insurer exercises a statutory right of subrogation, that does not alter the identity of the parties to the proceedings; accordingly, in the action between the applicant and the respondent there is no arguable defence that the respondent is considered a State for the purposes of the Constitution; observations made about whether “self-insurers” are considered a State; Held – opinion expressed to the defence that the application is federally impacted is unarguable.
Decision date: 13 December 2022| Principal Member: John Harris
Claim for surgery to the cervical spine and lumbar spine; injury to cervical spine accepted, however, respondent disputes whether surgery is reasonably necessary; injury to lumbar spine disputed; applicant suffered an injurious event in the workplace on 8 October 2018; he had been involved in a prior motor vehicle accident in 2016 and also had an incident at his home in November 2019 which was of clinical significance; the applicant brought a claim in respect of the motor accident, which also included allegations of injury to his cervical and lumbar spines; Held – the proposed cervical spine surgery is reasonably necessary; Diab v NRMA Limited and Bartolo v Western Sydney Area Health Service applied; the respondent is to pay the costs of and incidental to the proposed cervical spine surgery; the applicant has not discharged the onus of proof in establishing he suffered a lumbar spine injury in the incident at issue, whether by way of frank injury or aggravation; award for the respondent on the claim for lumbar spine injury.
Decision date: 14 December 2022| Member: Cameron Burge
Claim for medical expenses and weekly compensation; applicant suffered accepted injury by way of aggravation to cervical spine and lumbar spine, however, respondent argued effect of aggravations had passed and as such there was no work-related incapacity for employment or liability to pay ongoing medical expenses; Held – the respondent has the onus of proving an accepted aggravation has ceased; Commonwealth v Muratore followed; the evidence discloses a continuum of symptoms suffered by the applicant since the accepted injury; the preponderance of the medical evidence demonstrates the applicant continues to suffer from the effects of the aggravations; the applicant’s general practitioner has certified her as fit for 18 hours’ work per week on heavily restricted duties; the totality of the evidence discloses the applicant has residual capacity for employment at 18 hours per week working within restrictions, and could earn income at the rate of the minimum wage for adult workers, as indexed from time to time; respondent ordered to pay weekly compensation for partial incapacity pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act) for the period claimed; respondent ordered to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act.
Decision date: 15 December 2022| Member: Cameron Burge
Claim for permanent impairment compensation with respect to an alleged primary psychological injury; respondent disputes injury and alleges if there was a psychological injury, it was secondary to the physical injury suffered by the applicant; Held – the applicant suffered a primary psychological injury in the course of his employment with the respondent; the fact the applicant suffered minor physical injury is not determinative of whether he suffered post-traumatic stress disorder; the condition is dependent on the degree and seriousness of the fear which the applicant confronted; in this matter, the applicant’s evidence, which is accepted, was he feared for his life when two 5 tonne steel beams collided, jamming his hand; the applicant’s fear was a perception of a real event which took place in the workplace; State Transit Authority of NSW v Chemler discussed; absence of complaint to treating practitioners is not fatal to a finding of psychological injury, nor is lack of corroboration in the context of a civil claim; Baker v Southern Metropolitan Cemeteries Trust and Patrech v State of New South Wales followed; in any event the unchallenged evidence of the applicant’s former partner as to the effect which the injurious incident had on him corroborated the applicant and was compelling; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 15 December 2022| Member: Cameron Burge
Applicant died before assessment by a Medical Assessor (MA); MA assessed whole person impairment on the papers; Administrator of the applicant’s estate not appointed after almost two years; Held – matter cannot be finalised until Administrator appointed and substituted for the applicant; no indication when this might happen; delay inconsistent with statutory obligations under sections 42 and 43 of the Personal Injury Commission Act 2020; applicant failed to prosecute his claim; proceedings dismissed for want of due despatch.
Decision date: 16 December 2022| Principal Member: Glenn Capel
Claim for permanent impairment compensation; accepted lumbar spine injury and scarring to be referred for assessment; dispute arises over whether applicant suffered consequential conditions to left lower extremity (hip and leg) due to altered/antalgic gait; Held – on a common sense evaluation of the causal chain the applicant suffered the claimed consequential conditions; Kooragang Cement Pty Ltd v Bates followed; the evidence supports a finding of the hip and leg conditions being brought about by the applicant’s longstanding altered gait post-accident; it is not necessary to determine the nature of the pathology which makes up the consequential conditions; Moon v Conmah Pty Ltd and Kumar v Royal Comfort Bedding Pty Ltd followed; Grant v Dateline Imports Pty Ltd distinguished; matter remitted to the President for referral of all claimed body systems to a Medical Assessor to assess permanent impairment.
Decision date: 19 December 2022| Member: Cameron Burge
Claim for injuries to left shoulder; claim for proposed future treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); left shoulder subacromial decompression;consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence and factual material; respondent concedes that applicant sustained a personal injury to his left shoulder on 18 May 2020 but denies that he sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent as a result of the nature and conditions of that employment; consideration of whether the ‘disease’ injury was sustained in the course of employment and to which employment was the main contracting factor; consideration of whether the proposed surgery is reasonably necessary medical treatment as a result of the injury on 18 May 2020 and/or any ‘disease’ injury found; AV v AW, Rose v Health Commission (NSW), Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held – the applicant sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent pursuant to section 4(b)(i) of the 1987 Act, being the contraction of a disease to which his employment was the main contributing factor; pursuant to section 15(1)(a)(i) of the 1987 Act the injury will be deemed to have occurred on 17 July 2021; the surgery proposed for the applicant (left shoulder subacromial decompression) is reasonably necessary medical treatment as a result of the injuries to the applicant's left shoulder on 18 May 2020 and 17 July 2021 (deemed); the respondent is to pay for the costs of and incidental to the surgery (left shoulder subacromial decompression) proposed for the applicant by Dr Viswanathan in his 8 April 2021 report, pursuant to section 60 of the 1987 Act.
Decision date: 19 December 2022| Member: Gaius Whiffin
Factual dispute as to whether worker suffered a primary psychological injury as a result of a modest physical injury; worker had long previous history of chronic pain and depression; employer argued that absence of complaint of psychological symptoms in clinical record for more than a year after the injury negated causal nexus between injury and psychological condition; that the worker’s medical case did not explain how a modest physical injury could give rise to post traumatic stress disorder; Mason v Demasi considered; Held – absence of complaint in clinical record did not necessarily negate causal nexus in a case of psychological injury; worker’s treating medical evidence preferred to that of Dr Vickery; finding that the worker suffered a primary psychological injury in the context of pre-existing conditions of chronic pain and depression; primary psychological injury referred to Medical Assessor.
Decision date: 20 December 2022| Member: Paul Sweeney
Claim for lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 and interest pursuant to section 109(1) of the Workplace Injury Management and Workers Compensation Act 1998; liability for payment of lump sum accepted; disputed claim for interest; first respondent resides in Queensland; second respondent resides in Victoria; third respondent resides in New Zealand; expression of opinion as to whether claim is federally impacted; consideration of Searle v McGregor, Attorney General for New South Wales v Gatsby, Condon v Bartley, Hayes v RACQ Insurance Limited, Smith v Allianz Australia Insurance Ltd, Ward v QBE Insurance (Australia) Ltd, Hackett v Allianz Australia Insurance Ltd and Watts v BKFY Pty Ltd; Held -there is no arguable basis that the applicant is a State as defined in the Commonwealth of Australia Constitution Act 1901.
Decision date: 20 December 2022| Senior Member: Kerry Haddock
Claim for injury to the right foot and ankle, consequential conditions in the right knee, lumbar spine and digestive system determination; Held – referred for medical assessment of whole person impairment in respect of the right lower extremity (foot ankle and toes), lumbar spine and digestive system.
Decision date: 21 December 2022| Member: Michael Inglis
Claim for further lump sum compensation and incurred treatment expenses; accepted lumbar injury in 2006; whether two level anterior lumbar interbody fusion performed in 2017 was reasonably necessary as a result of the 2006 injury; Held – significant changes in pathology between injury and surgery, impact of pre-existing degenerative changes, passage of time and continued manual work not addressed by applicant’s medical evidence; respondent’s expert opinions and non-binding opinion from a Medical Assessor weighed against applicant’s evidence; causal relationship between injury and surgery not established; awards for the respondent.
Decision date: 22 December 2022| Member: Rachel Homan
Allegation of cervical spine injury in two incidents at work for which the applicant sought a determination in respect of proposed cervical spine surgery; undisputed that lumbar spine was injured in both injuries; no contemporaneous reporting of neck injury and absence of contemporaneous complaints of neck pain in medical records; Held –all of the evidence weighed in the balance and held that the applicant had not discharged the onus of proof; award for the respondent.
Decision date: 22 December 2022| Member: Jane Peacock
Reconsideration application based upon deterioration; Held – application dismissed as no order present to reconsider.
Decision date: 22 December 2022| Senior Member: Elizabeth Beilby
Respondent concedes that applicant fell and suffered injuries in the course of employment on 3 July 2019; respondent concedes injury to thoracic spine, lumbar spine and psychological; applicant presses additional injury to cervical spine, left shoulder and right ankle; Held – Mason v Demasi considered but delay of seven months in any note of complaint despite several general practitioner attendances means insufficient evidence to support applicant’s claims; award for respondent in respect of claimed injuries; accepted injuries referred to medical assessor for whole person impairment assessment.
Decision date: 22 December 2022| Member: Phillip Young
Application pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act)brought by the applicant, an uninsured employer, disputing the notice for reimbursement served on it by the Workers Compensation Nominal Insurer; issues in dispute were whether Shaun Brittliff was employed by the applicant, sustained an injury in the course of his employment with the applicant and whether his employment was a substantial contributing factor to the injury as well as the quantum of any reimbursement; Held – the second respondent is a worker and suffered an injury pursuant to section 4(a) of the 1987 Act; his employment was a substantial contributing factor consistent with section 9A of the 1987 Act; at all relevant times the applicants did not have a policy of workers compensation insurance; the applicants are liable to reimburse the Workers Compensation Nominal Insurer pursuant to section 145 (4) of the 1987 Act.
Decision date: 22 December 2022| Principal Member: Josephine Bamber
Dispute as to applicant’s pre-injury average weekly earnings (PIAWE) determined by reference to the definition in the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (2010 Award); Held – the applicant’s PIAWE at the time of injury on 8 December 2016 are to be calculated at the rate of $18.21 per hour in accordance with a Level 2 Classification under the 2010 Award.
Decision date: 22 December 2022| Member: Paul Sweeney
Consideration of section 10(3)(c) of the Workers Compensation Act 1987; Held – the journey was made for the purposes of obtaining medical treatment and/or advice in connection with an accepted injury; consideration of distribution of the lump sum death benefit and interest.
Decision date: 22 December 2022| Senior Member: Elizabeth Beilby
Claim for weekly payments of compensation for a 4 month period and the payment of medical expenses due to psychological injury; respondent relies upon section 11A of the Workers Compensation Act 1987 defence that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or the provision of employment benefits; reference to Hamad v Q Catering and Irwin v Director General of School Education; Held – the injury was wholly or predominantly caused by action taken by employer with respect to discipline and the provision of employment benefits, but that action was not reasonable; award of weekly payments of compensation for total incapacity for the period claimed and the payment of medical expenses.
Decision date: 22 December 2022| Member: John Isaksen
Claim for weekly benefits pursuant to sections 33, 37 and 38 of the Workers Compensation Act 1987; in final written submissions in reply, applicant sought leave to amend the Application to Resolve a Dispute to include an additional body part; Held – leave granted to amend the Application to Resolve a Dispute (ARD) so that the “Injury Details/Injury Description” includes injury to the applicant’s “neck” in addition to the applicant’s “right shoulder, right arm, right wrist, left wrist” and the ARD is amended accordingly; matter to be listed for a teleconference to hear submissions in relation to what, if any, measures are appropriate to ensure procedural fairness to the parties arising from the amendment of the ARD.
Decision date: 23 December 2022| Member: Karen Garner
Reasonably necessary medical treatment; claim for the cost of spinal fusion surgery; Diab v NRMA Limited and Honarvar v Professional Painting AU Pty Ltd discussed;brief medical reports from treating surgeon; Paric v John Holland (Constructions) Pty Ltd applied; Held –award for the respondent.
Decision date: 23 December 2022| Member: Catherine McDonald
Workers Compensation President's Delegate Decision
Applicant injured left elbow during course of employment with the respondent; following injury she obtained work with new employer where her weekly wages exceeded 95% of her pre-injury average weekly earnings with the respondent; applicant suffered a recurrence of her injury and made a claim for one days wages; applicant initially argued her entitlement ought to be calculated by reference to her daily earnings; in written submissions applicant no longer pressed this argument but did not provide any basis upon which the claim for weekly benefits compensation was payable; Held –application has no prospects of success and is dismissed.
Decision date: 16 December 2022| President’s Delegate: Belinda Gamble
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999 (1999 Act);medical dispute about whole person impairment (WPI) and treatment; review of Medical Assessor’s assessment of permanent impairment under section 63 of the 1999 Act; allegation of head/traumatic brain injury made years after the accident, injuries to cervical , thoracic and lumbar spine, right and left shoulders, right foot drop with altered gait and gastrointestinal upset; treatment in dispute includes domestic assistance, general practitioner and neurological consultations and physiotherapy; Held – head injury investigated and two neuropsychological assessments suggest minimal effort applied during testing, no medical explanation for foot drop, gaps in medicine, lack of radiological findings; WPI assessed at 0% and some domestic assistance allowed in the first year after the accident; no matter of principle.
Decision date: 12 December 2022| Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Tai Tak Wan | Injury module: Spine, Upper and Lower Limb, Digestive and Brain Injury
The claimant suffered injuries in a motor accident on 25 September 2015 whilst test riding a motorcycle; the issues were whether a cervical spine surgery was reasonable and necessary and caused by the motor accident; the issue of injury to the cervical spine was in dispute; there was an absence of reference to cervical spine symptoms following the accident although the claimant was eventually referred for a scan of the neck; the neck symptoms in the months after the motor accident were mild and intermittent consistent with a reference to neck pain being “non-specific” by the chiropractor in December 2015; there was an absence of any reference to neck pain in any clinical notes and the medical reports during the period from 2016 to 2018; when the neck was examined on the two occasions identified during this period it was reported as normal; the neck was reported as symptomatic in 2019 and deteriorated since that time; findings made that the claimant suffered a soft tissue neck injury which recovered after three months; no material contribution between the injury and need for surgery; various factors considered when assessing whether the surgery was reasonable and necessary in the circumstances; Diab v NRMA referred to; Panel not satisfied that the proposed surgery was necessary because of the claimant’s psychological condition and the non-dermatome nature of the upper extremity symptoms, resulting in a likely poor outcome from this surgery; Held – the proposed surgery was not reasonable and necessary and not caused by the motor accident.
Decision date: 13 December 2022| Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine
The claimant suffered injury in a motor vehicle accident; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were injury to the neck; injury to the back; injury to both shoulders; fractured ribs; right lower extremity referred pain; pre-existing right-sided lumbar radiculopathy in 2012; only complaint between 2012 and accident in January 2019 was complaint of right leg pain in 2014; Held – aggravation of pre-existing L5/S1 disc protrusion with right S1 nerve root impingement caused by accident; no objective evidence of pre-existing symptomatic permanent impairment at the time of the accident; no deduction for any pre-existing symptomatic impairment; assessed as diagnosis related estimate (DRE) lumbosacral category III or 10% WPI; soft tissue injury to cervical spine assessed as DRE cervicothoracic category II or 0% WPI; injury to the right shoulder not caused by the accident; soft tissue injury to left shoulder resolved; not medically plausible that restriction of range of movement in left shoulder limited by left chest wall and low back pain; no assessable impairment of left shoulder; uncomplicated healed rib fractures not result in assessable impairment; referred pain to the right leg is a component of the lumbar radiculopathy; Panel finds total WPI of 10%.
Decision date: 13 December 2022| Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Chris Oates | Injury module: Spine, Upper and Lower Limb
This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of cervical and lumbar spine pain and right leg pain following the motor accident and submitted that he suffered from radiculopathy and/or sustained an annular tear or fissure in the motor accident which meant the injuries were classified as non-minor injuries; subsequent scan evidence otherwise showed changes that appeared to be long standing and the accident did not explain changes; claimant did not demonstrate radiculopathy before any assessor or his treating specialist; treating specialist noted no neurological changes since 2021 accident; Held – the Panel were not satisfied that the claimant suffered an annular tear or fissure in the motor accident as it was more likely that the pathology was degenerative and generally pre-existing and asymptomatic; the Panel were not satisfied that the claimant had two objective signs of radiculopathy at any time following the motor accident; observations that radiculopathy was established if it occurred at any time and was verified and not only during an examination by a Medical Assessor; injuries were soft tissue injuries so were minor as defined by section 1.6 of the Motor Accident Injuries Act 2017.
Decision date: 14 December 2022| Panel Members: Member Terence O’Riain, Dr Shane Moloney and Dr Neil Berry | Injury module: Spine, Upper and Lower Limb
Motor Accidents Injuries Act 2017; medical dispute about whole person impairment; review of Assessor Home’s assessment; claimant injured in August 2018 and is now 90 years of age; claimant fell in bus and says she injured her neck, lower back and left shoulder; gap of 11 months in complaints of neck pain and pre-existing lower back condition; shoulder impairment conceded but issue as to whether a deduction should be made under cl 6.51 or 6.31 of the Motor Accident Guidelines; Held – Panel not satisfied claimant injured her neck in the accident due to her history of a delay in onset of symptoms; Panel satisfied claimant injured her back but 0% impairment; shoulder impairment was 13% and Panel determined no deduction on basis of contralateral uninjured right shoulder because right shoulder injured in intervening accident; no deduction for pre-existing impairment because no objective evidence of impairment; claimant’s impairment is greater than 10%.
Decision date: 15 December 2022| Panel Members: Member Belinda Cassidy, Dr Mohamed Assem and Dr Geoffrey Stubbs | Injury module: Spine and Upper Limb
Motor Accidents Compensation Act 1999;medical dispute about whole person impairment (WPI) and treatment; review of Assessor Bodel’s assessment of WPI; claimant injured in rear-end collision in Sydney central business district; claimant alleged injury to neck, back, left and later, right shoulder; dispute about causation of left and right shoulder and relationship to the accident; Held – neck injury assessed at diagnosis related estimate (DRE) II = 5%, thoracic spine DRE I = 0%, lumbar spine DRE 1 = 0%; Panel not satisfied right shoulder impairment caused by accident due to absence of complaint of right shoulder symptoms for over four years from the date of the accident; Panel satisfied impairment to left shoulder caused by accident but resolved within six months when treating rheumatologist recorded full range of shoulder motion; Panel satisfied that current impairment not caused by accident and most likely caused by degenerative condition unrelated to accident.
Decision date: 19 December 2022| Panel Members: Member Belinda Cassidy, Dr Thomas Rosenthal and Dr Shane Moloney| Injury module: Spine and Upper Limb
Motor Accidents Injuries Act 2017 (2017 Act); medical dispute about minor injury under section 1.6 of the 2017 Act; review of Assessor Assem’s assessment under section 7.26 of the 2017 Act; claimant alleged injury to cervical spine and lumbar spine in October 2020 accident; claimant added ‘thoracic spine injury’ after original assessment; issue of causation; issue of readiness for assessment in light of cervical foraminotomy surgery not yet undertaken; Held – matter not delayed or deferred due to age of claim, age of accident and likelihood of further assessment after surgery; Panel found no thoracic fractures caused by accident; no cervical or lumbar spine radiculopathy therefore all injuries are minor injuries; Panel expressed the preliminary view that cervical foraminotomy surgery was caused by the accident and would likely take the claimant’s cervical spine injury from minor injury to non-minor injury because surgery involves cutting of skin and excision of bone or tissue.
Decision date: 19 December 2022| Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Drew Dixon | Injury module: Spine
The claimant suffered injury in the motor accident; pre-accident history of lower back pain; the claimant alleges injury to the cervical and lumbar spine; whether the claimant sustained a disc bulge at C5/6 in the accident; whether the claimant suffered an avulsion fracture of the left shoulder; Held – the claimant suffered soft tissue injury to the lumbar spine; the disc bulge at C5/6 is not an injury related to the accident; the claimant sustained soft tissue injury to the cervical spine; a CT scan demonstrated that the claimant had not sustained an avulsion fracture of the left shoulder; the claimant sustained a soft tissue injury to the left shoulder; no evidence of radiculopathy; minor injury finding confirmed.
Decision date: 22 December 2022| Panel Members: Member Susan McTegg, Dr Geoffrey Curtin and Dr Les Barnsley | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Appeal by employer from 18% whole person impairment (WPI) for cervical spine injury; whether Medical Assessor’s (MA) reasons adequate; whether MA entitled to rely on year old expert report to supply radiculopathy findings pursuant to chapter 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; whether MA correct to assess impairment on the beneficial nature of the workers compensation scheme; Held – legislative basis for guidelines considered; MA admitted inability to find radiculopathy considered; reasons inadequate to explain path of reasoning; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan applied; beneficial nature of scheme irrelevant in the absence of any ambiguity of inconsistency; Project Blue Sky v ABA considered; nature of guidelines considered; ADCO Constructions Pty Ltd v Goudappel applied; worker re-examined, Medical Assessment Certificate revoked.
Decision date: 16 October 2022| Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr Brian Stephenson | Body system: Cervical Spine and Left Upper Extremity
Appeal by employer against Medical Assessment Certificate (MAC) on the grounds of the assessment having been made on the basis of incorrect criteria and that the MAC contains a demonstrable error; section 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the respondent worker had previously been assessed as having sustained 24% whole person impairment (WPI) as a result of psychological injury arising out of or in the course of his employment with the NSW Police Force for which he had been compensated, and also settled a damages claim against the NSW Police Force in respect of such injury; the Medical Assessor (MA) in the current proceedings assessed 17% WPI as a result of psychological injury arising out of or in the course of employment with the appellant, and deducted one tenth therefrom pursuant to section 323 of the 1998 Act, for a final WPI of 15%; the appellant submitted that the MA had not complied with section 323(2) of the 1998 Act in making such deduction, and that, having regard to the evidence before him, the deduction should have been higher than the one tenth provided for in that subsection; Held – the Appeal Panel accepted that submission, and that the section 323 of the 1998 Act deduction should be 25% of the 17% WPI assessed by the MA; MAC dated 29 July 2022 revoked and new certificate issued.
Decision date: 14 December 2022| Panel Members: Member Brett Batchelor, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Medical Assessor (MA) did not combine impairment; MA assessed appellant to have impairment of the right hip based on range of motion with the impairment he assessed the appellant to have of the femoral shaft based on diagnosis-based estimate; whether Table 17-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed applied to prevent the combination of those impairments; Held –Appeal Panel held it did not; Medical Assessment Certificate revoked.
Decision date: 15 December 2022| Panel Members: Member Marshal Douglas, Dr James Bodel and Dr Mark Burns | Body system: Lumbar and Thoracic Spine, Right Lower Extremity and Scarring
Appeal from assessment of cervical spine; whether Medical Assessor erred in selecting diagnosis related estimate (DRE) category II; whether DRE category III appropriate as a result of surgery at two levels; whether surgery resulted from injury; Held – assessment set aside and replaced.
Decision date: 16 December 2022| Panel Members: Member Richard Perrignon, Dr Tommasino Mastroianni and Dr James Bodel | Body system: Cervical Spine, Right and Left Upper Extremity
The appellant submitted that the Medical Assessor (MA) erred in applying the wrong criteria in finding there was a class 2 in the category of concentration, persistence and pace (CPP) of the Psychiatric Impairment Rating Scale (PIRS) when there should have been a finding of a class 3 impairment; Panel found the evidence supported a class 2 rating; Held – no errors by the MA; Medical Assessment Certificate confirmed.
Decision date: 19 December 2022| Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Worker alleges Medical Assessor (MA) erred in failing to assess whole person impairment (WPI) of ankle by manual muscle testing in accordance with Ch 17.2e of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 April 2016 (Guidelines); in failing to demonstrate the path by which he chose the range of motion methodology in Ch 17.2f of the Guidelines; Held – in view of the qualifications imposed by the Guidelines on the use of manual muscle testing methodology its use to assess WPI in this case was strongly contraindicated and the MA did not err in utilising the range of movement methodology; the actual path by which the MA preferred the range of movement methodology can be readily inferred from the Medical Assessment Certificate (MAC) and the evidence in the case; MAC confirmed.
Decision date: 19 December 2022| Panel Members: Member Paul Sweeney, Dr Gregory McGroder and Dr John Brian Stephenson | Body system: Left Lower Extremity
Appeal by worker against a Medical Assessment Certificate (MAC) on the basis that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error; the appellant submitted that the Medical Assessor (MA) had made an incorrect assessment of scarring following surgery in his shoulders, in accordance with the TEMSKI scale, and failed to explain why he made his assessment; this ground of appeal rejected; the appellant also submitted that the MA had failed to explain a comment in the MAC by the MA that there had been slight improvement in the range of motion in the shoulders over the preceding 12 months, notwithstanding the inability of the appellant to obtain treatment because of COVID-19 restrictions; this was submitted to be a demonstrable error; this ground of appeal rejected; Held –MAC confirmed.
Decision date: 19 December 2022| Panel Members: Member Brett Batchelor, Dr Roger Pillemer and Dr Margaret Gibson | Body system: Left and Right Upper Extremity and Scarring (TEMSKI)
Psychological injury; appellant alleged error in the assessment under three categories under the Permanent Impairment Rating Scale (PIRS); self-care and personal hygiene, social and recreational activities, and concentration, persistence and pace; Held – the ratings in these three classes were open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed.
Decision date: 19 December 2022| Panel Members: Member Jane Peacock, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric
Lumbar spine injury and scarring assessment; appellant alleged error in the assessment of diagnosis related estimate (DRE) I and submitted DRE II should have been found; the other experts rated DRE II; the Medical Assessor (MA) has very clearly explained why he did not agree with them, and he has clearly based upon his clinical findings on the day of assessment upon which he is entitled to rely; the MA has undertaken a through physical examination and recorded detailed findings; Held –the MA is entitled to rely on his clinical findings on the day of assessment; these findings do not reveal neurological deficits and the criteria for DRE II are not satisfied; radiological findings of the kind in this case do not suffice on their own to satisfy the criteria for DRE II; the MA does not need to refer to each piece of evidence; read as a whole, it is clear that the MA has had regard to material that was in evidence before him; the Appeal Panel discerned no error in the rating of DRE I or 0% whole person impairment (WPI) on the basis of the MA’s clinical findings on the day of examination; this accords with the criteria for DRE I in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; there was no error in the assessment of 0% WPI for scarring; Medical Assessment Certificate confirmed.
Decision date: 20 December 2022| Panel Members: Member Jane Peacock, Dr Brian John Stephenson and Dr Margaret Gibson | Body system: Lumbar Spine and Scarring (TEMSKI)
The appellant submitted that the Medical Assessor (MA) erred in three respects; firstly, by failing to accept the nature of the injury, that is a primary psychological condition; secondly, erred when attempting to make a deduction for the effects of the pain; and thirdly by failing to provide adequate reasons; the Panel agreed in part with the appellant’s submissions and a re-examination was conducted; Held – thePanel found no errors by the MA in all Psychiatric Impairment Rating Scale (PIRS) categories except for employability; appellant found to be unfit for work and a Class 5 PIRS rating was ascribed; Medical Assessment Certificate revoked.
Decision date: 20 December 2022| Panel Members: Member Deborah Moore, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Worker alleges error by the Medical Assessor (MA) in making deductions from binaural hearing loss for a pre-existing condition caused by occupational noise in South Africa pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); and for noise exposure in self-employment in New South Wales (NSW) before and after the notional date of injury; worker argues that the language of section 17 of the Workers Compensation Act 1987 did not permit any deduction from current impairment for a pre-existing condition or for hearing loss caused by self-employment; respondent accepted that the MA erred in making a deduction for self-employment after the notional date of injury; it submitted that a deduction should be made of 1/10th pursuant to section 323(2) of the 1998 Act; Held –Panel accepted that a 1/10th deduction should be made to reflect appellant’s noise exposure in South Africa; unnecessary to determine whether a deduction could also be made for noise exposure in self -employment in NSW; Medical Assessment Certificate revoked.
Decision date: 21 December 2022| Panel Members: Member Paul Sweeney, Dr Robert Payten and Dr Henley Harrison | Body system: Hearing
Appeal from assessment of 6% whole person impairment (binaural hearing impairment); whether Medical Assessor (MA) erred in excluding hearing levels below 2000hZ from assessment; whether MA erred in calculating total noise-induced and other losses from data in the Cortical Evoked Responses (CERA) table; Held – Medical Assessment Certificate revoked.
Decision date: 22 December 2022| Panel Members: Member Richard Perrignon, Dr Joseph Scoppa and Dr Robert Payten | Body system: Hearing
Motor Accidents Merit Review Decisions
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA Act) (as applied by section 3.39 of the 2017 Act; limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA Act; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Decision date: 16 December 2022| Merit Reviewer: Katherine Ruschen
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); section 6.24 of the 2017 Act duty to co-operate; section 6.3 of the 2017 Act duty to act honestly and not to mislead; duty to disclose all relevant information in a timely manner; meaning of pre-accident weekly earnings (PAWE) schedule 1, clause 4(1); clause 4(2)(a1) of the 2017 Act; whether earner received earnings as an earner in the 12 months immediately before the motor accident; whether superannuation contributions are earnings received as an earner; whether the monetary amount of leave entitlements are earnings received as an earner; Held –the reviewable decision is set aside.
Decision date: 21 December 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.
Subscribeto receive legal bulletins to your inbox.