Legal Bulletin No. 121
This bulletin was issued on 28 July 2023
Issued 28 July 2023
Welcome to the one hundred and twenty-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.
Supreme Court Decision
Judicial review; review of medical assessment; Review Panel Certificate; section 61 of the Motor Accidents Compensation Act 1999 (NSW); Motor Accident Permanent Impairment Guidelines; mandatory nature of guidelines; constructive failure to exercise jurisdiction; insufficient reasons; legal errors; Held – order in the nature of certiorari; remittal to different review panel; order in the nature of mandamus.
Decision date: 24 July 2023 | Before: Walton J
Presidential Member Decisions
Workers compensation; evidentiary value of medical records and the obligation of a member to consider the evidence; Mason v Demasi considered; Singh v FTW Products Pty Ltd applied; requirement to respond to substantial, clearly articulated arguments; Dranichnikov v Minister for Immigration & Multicultural Affairs and Wang v State of New South Wales applied; failure to have regard to arguments in respect of work capacity; sections 33 and 37 of the Workers Compensation Act 1987; error in failing to consider consequential psychological injury when addressing capacity for work arising from a physical injury; Held – Order 4 of the Certificate of Determination dated 19 July 2022 is revoked; remaining orders are confirmed; matter is remitted back to the same Member to determine the issue of work capacity and the claim for weekly compensation in accordance with these reasons.
Decision date: 17 July 2023 | Before: President Judge Phillips
Workers compensation; factual error; extension of time to appeal; application of Bryce v Department of Corrective Services; Yacoub v Pilkington (Australia) Ltd; the duty to give reasons; Soulemezis v Dudley (Holdings) Pty Ltd; Pollard v RRR Corporation Pty Ltd; alleged denial of procedural fairness; Dranichnikov v Minister for Immigration and Multicultural Affairs; section 322A of the Workplace Injury Management and Workers Compensation Act 1998; application of Merchant v Shoalhaven City Council; Galluzzo 3 v Little; injury pursuant to section 4 of the Workers Compensation Act 1987; the ‘disease’ provisions; application of Crisp v Chapman; Held – leave granted to employer and worker pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring an interlocutory appeal; Member decision dated 13 September 2022 is revoked.
Decision date: 17 July 2023 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Motor accidents settlement approval; claim for damages pursuant to Compensation to Relatives Act 1897 following the death of the claimant’s husband who was fatally injured in a motor vehicle accident; at the date of the accident the claimant and the deceased husband were married and residing together; no allegation of contributory negligence; settlement comprised funeral expenses, past and future loss of financial services; Held – the proposed settlement is just, fair and reasonable; this proposed settlement is approved under section 6.23 (2)(b) of the Motor Accident Injuries Act 2017.
Decision date: 11 July 2023 | Member: David Ford
Motor accidents settlement approval; 93-year-old male pedestrian; attempting to cross the road in front of oncoming vehicle but did so unexpectedly and failed to cross the road at a marked pedestrian crossing controlled by traffic lights a short distance away; sustained serious injuries to cervical spine and hip; insurer alleged contributory negligence at 40%; determined damages should be reduced by the percentage of contributory negligence alleged by the insurer; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, this proposed settlement is approved under section 6.23 (2)(b) of the Motor Accident Injuries Act 2017.
Decision date: 13 July 2023 | Member: David Ford
Settlement approval $77,100; 65-year-old male; past and future economic loss only; resolved undisplaced fractures 5th and 8th rib right side; L3 undisplaced transverse fracture and contusions to forehead, arms, legs and back now healed; ongoing intermittent back pain; PTSD no further treatment required now healed; section 6.23 of the Motor Accident Injuries Act 2017; Held –proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 20 July 2023 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; review of work capacity decision based on vocational assessment report; section 43(1), 32A and 37(1); Wollongong Nursing Home Pty Ltd v Dewar; Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; South Western Sydney Area Health Service v Edmonds; Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held – the applicant had no current work capacity during the period claimed within the meaning of section 32A; the respondent’s work capacity decision dated 26 July 2022 is set aside; the respondent is to pay the applicant weekly compensation under section 37(1) from 7 November 2022 to 14 January 2023.
Decision date: 13 July 2023 | Member: Anthony Scarcella
Assessment of costs; claim for lump sum compensation resolved; complying Agreement included an agreement that the respondent pay the applicant’s costs as agreed or assessed; applicant claimed the cost of a second Independent Medical Examination (IME) report that did not establish an entitlement to lump sum compensation; opposed by the respondent; Gulic v GMG Transport and Sipple v Trustee for KF Administrative Services Trust discussed and applied; Held – respondent liable for the cost of the second IME report because it was deemed to be a medical or treatment expense in accordance with section 73 of the Workers Compensation Act 1987; no order as to the costs of the assessment.
Decision date: 13 July 2023 | Principal Member: Glenn Capel
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted laceration to the head; whether the applicant sustained a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; Held – applicant did sustain a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; matter remitted to the President of the Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to traumatic brain injury and high cervical cord lesion injury.
Decision date: 14 July 2023 | Member: Karen Garner
Workers Compensation Act 1987; claim for section 60(5) declaration that medicinal cannabis reasonably necessary; effect of applicant’s failure to mention earlier prescription when describing history of accepted back injury and accepted consequential neck injury; whether prescription effective when both spinal conditions resulted in fusion operations; Held – failure to mention earlier prescription not significant in context; proposed treatment needs to show alleviation of symptoms; not complete cure; applicant self-funded prescription with good result; award applicant for initial six month trial and then general order.
Decision date: 14 July 2023 | Member: John Wynyard
Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation;consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the respondent can establish (pursuant to section 11A) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury since 31 March 2023; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60; considered Smyth V Charles Sturt University; Hunt v Department of Education and Training; State Transit Authority of New South Wales v Fritzi Chemler; Brady v Commissioner for Police; Irwin v Director-General of Education and Training Compensation Court of NSW; Held – the respondent has failed to establish (pursuant to section 11A) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken in respect of performance appraisal; the applicant remains totally incapacitated for work as a result of the psychological injury from 31 March 2023 to date and continuing for his psychological injury deemed to have occurred on 14 November 2022; award for the applicant pursuant to section 37 from 31 March 2023 to date and continuing as adjusted.
Decision date: 14 July 2023 | Member: Anne Gracie
Workers Compensation Act 1987; entitlement to weekly benefits compensation; applicant discontinues claim for weekly benefits compensation soon after arbitration hearing determined that a defence under section 11A is not made out and a determination to an entitlement to such benefits but before their quantification by the decision maker; respondent appeals the determination; decision maker issues a decision quantifying the applicant’s entitlement to weekly benefits compensation not knowing that the weekly benefits claim had been discontinued; the respondent’s appeal is dismissed for not satisfying the monetary threshold provision in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; applicant subsequently brings the same claim for weekly benefits compensation after unsuccessfully seeking a reconsideration; Anshun estoppel; Port of Melbourne Authority v Anshun Pty Limited; Fourmeninapub Pty Ltd v Booth; Geary v UPS Pty Ltd; Woolstar Pty Ltd v Wood and Secretary, Department of Communities and Justice v Miller & Anor (No 5) considered and applied; Held – the applicant is not estopped from bringing a claim for weekly compensation benefits; the respondent pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 7 January 2019 at the rates and for the periods agreed by the parties.
Decision date: 17 July 2023 | Member: Anthony Scarcella
Industrial deafness; dispute about last noisy employer; evidence weighed in the balance; Held – on the balance of probabilities; second respondent found to be the last employer who employed the worker in employment to which the nature of the injury of hearing loss was due; matter remitted for referral to a Medical Assessor.
Decision date: 18 July 2023 | Member: Jane Peacock
Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; medical and related expenses of past treatment and right elbow surgery pursuant to section 60; applicant had non-work fracture injury to right elbow; whether the non-union of the right elbow fracture injury was caused by the applicant’s employment; whether the applicant sustained injury to his right elbow pursuant to section 4(a), 9A and 4(b); Held – applicant sustained injury to his right elbow in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process to which his employment was the main contributing factor pursuant to section 4(b)(ii); the past medical treatment and the proposed right elbow surgery is reasonably necessary; the applicant was and remained totally incapacitated for work as a result of the injury to his right elbow from 1 February 2022 to 17 April 2022; the respondent is ordered to pay the costs of past treatment set out in the applicant’s schedule of expenses and the costs of and incidental to right elbow surgery in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation in the amount of $1,803.92 per week from 1 February 2022 to 17 April 2022, pursuant to section 36(1).
Decision date: 18 July 2023 | Member: Karen Garner
Workers Compensation Act 1987; claim for lump sum compensation for a psychological injury; respondent admits that the applicant suffered a primary psychological injury arising out of or in the course of the applicant’s employment; the respondent’s defence to the claim was under section 11A on the basis that the injury was sustained wholly or predominantly as a consequence of reasonable action taken by the respondent with respect to performance appraisal or proposed transfer; the pleaded date of injury predated the proposed transfer so claim was limited to a defence based on reasonable actions taken or proposed to be taken with respect to performance appraisal; Held – the identified actions of the respondent did not constitute a process of performance appraisal and were more accurately viewed as management of one aspect of the applicant’s work performance; the actions were not a limited discrete process as held in Irwin v Director-General of School Education per Geraghty J; further held that in any event the identified actions by the respondent as constituting “performance appraisal” were not shown on the balance of probabilities to be the whole or predominant cause of the applicant’s injury; award for the applicant with referral to the matter for assessment of whole of person impairment by a Medical Assessor.
Decision date: 20 July 2023 | Member: Michael Moore
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 16 December 2020; assessment of threshold injury; injury to lumbar spine; Medical Assessor Assem identified radiculopathy and certified the claimant had sustained a non-threshold injury; Held – on examination Medical Assessor Wan on behalf of the review panel did not identify radiculopathy; presence of annular tears; having regard to circumstances of accident; contemporaneous complaints of lower back discomfort radiating to the left leg; the accident materially contributed to the aggravation of the lumbar disc pathology identified on the MRI of 28 April 2021 and the presence of L5/S1 radiculopathy identified by Medical Assessor Assem; panel adopts reasoning in David v Allianz Australia Ltd that the definition of threshold injury can be satisfied at any time following the accident; panel satisfied at the time of assessment by Medical Assessor Assem Mr Yousif had objective clinical evidence of left L5/S1 radiculopathy; the panel concludes the claimant sustained a non-threshold injury.
Decision date: 26 June 2023 | Panel Members: Member Susan McTegg, Dr Drew Dixon and Dr Tai-Tak Wan | Injury module: Spine
Motor Accidents Compensation Act 1999; the claimant sustained injury in a motor vehicle accident on 10 April 2015; injuries referred for assessment were the cervical spine, lumbar spine; both hips, right shoulder, right leg and left shoulder; dispute as to causation of right hip and back pain; Medical Assessor (MA) Wijetunga assessed 1% whole person impairment (WPI) for right shoulder injury; Held – claimant’s presentation straightforward; whiplash injury to neck radiating to right shoulder girdle assessable as per Nguyen v Motor Accident Authority of New South Wales & Anor; Panel satisfied as to causation of right hip and right leg injury; Panel found the accident did not cause injury to the left shoulder or left hip; Panel found accident materially contributed to soft tissue injury to lumbar spine as per Norrignton v QBE Insurance (Australia) Ltd; Panel assessed diagnosis related estimates (DRE) cervicothoracic category 1 or 0% WPI for cervical spine; right shoulder movements within normal range and no assessable permanent impairment; normal range of movements and no current evidence of trochanteric bursitis so no assessable impairment of right hip; lumbar spine assessed as DRE lumbosacral category 1, 0% WPI; Certificate of MA revoked and certificate for 0% WPI issued.
Decision date: 26 June 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Clive Kenna | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 7 July 2020; Medical Assessor (MA) Fukui certified adjustment disorder with anxiety; a threshold injury; Held – pre-existing psychiatric state; accident more than negligible contribution; diagnostic criteria for post-traumatic stress disorder not met; diagnosis of adjustment disorder with anxiety; certificate of MA confirmed.
Decision date: 28 June 2023 | Panel Members: Member Susan McTegg, Dr Wayne Mason and Dr Doron Samuell | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injuries by Medical Assessor (MA) Home and claimant’s review under section 7.26; Assessor issued one document incorporating certificates and reasons in respect of three separate proceedings; application for review lodged in respect of only one medical assessment matter; claimant alleged injuries to neck, back, chest and right wrist; T-Bone injury and airbags deployed; Assessor found all injuries minor; Held – chest and rib injuries soft tissue; no evidence of fracture or rupture of tendons etc; wrist injury included acid burn from airbag; no evidence of fractures and no visible scar from burn; allegation of 20% compression fracture in thoracic spine; claimant presented no radiological or other evidence to Panel to support that injury; Panel examination found no evidence of cervical and lumbar radiculopathy and records revealed no evidence to enable finding of radiculopathy at any time since the accident; radiology did not establish any bony injury or complete or partial rupture of tendons, ligaments and so on in the spine; all injuries threshold injuries; certificate of MA confirmed; no issue of principle.
Decision date: 7 July 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron and Dr Michael Couch | Injury module: Upper Limb and Spine; Treatment Type: Radiological investigations and Medical Specialist Consultation
Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and insurer’s application for review under section 63 of certificate issued by Medical Assessor (MA) Nichols; claimant injured in a fall on a bus in May 2016; claimant alleged musculoskeletal injuries which had been assessed at 10% and this assessment was not challenged; claimant also alleged significant dental injuries assessed at 9% due to difficulty masticating; claimant had given various histories alleging he flew through the air and hit his face and head on a pole in the bus as he fell; CCTV footage from inside bus did not support this; Held – claimant’s evidence unreliable; much of the expert evidence based on the unreliable history and none of the experts (or previous MA) had watched the footage; the claimant had not watched the footage until medical review re-examination; Panel satisfied claimant fell in the bus but that he did not hit his face and did not hit his head with significant force; the Panel accepted that the fall could have damaged tooth 12 and that the claimant reported this to his dentist on the day of the accident; Panel not satisfied other alleged damage to the claimant’s teeth was caused by the accident; claimant’s difficulty masticating due to loss of 10 of his 12 molars and failing bridges and decay, not caused by accident; Certificate of MA revoked; fresh combination certificate issued; claimant did not have a WPI greater than 10%.
Decision date: 11 July 2023 | Panel Members: Member Belinda Cassidy, Dr David Sykes and Dr Paul Curtin | Injury module: Dental Injury
Motor Accident Injuries Act 2017; the claimant suffered injury on 26 February 2021 in a side on collision; the dispute related to the assessment of threshold injury; claimant re-examined; significant chronic pre-existing history of cervical and lumbar spine pain and pathology; prior cervical fusion; prior lumbar spine injections; post-accident symptoms consistent with pre-accident complaints; findings made that pathology on scans was not aggravated by accident; no basis to find the injury to the other body parts (shoulder and hip) were not threshold injuries; Held – assessment of threshold injury confirmed.
Decision date: 12 July 2023 | Panel Members: Principal Member John Harris, Dr Ian Cameron and Dr Paul Curtin | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; medical assessment of treatment dispute and claimant’s application for review under section 7.26; claimant injured when he was knocked off his scooter and fell to the roadway; claimant alleged he sustained face, jaw and teeth injuries in the accident and made a claim for $55,000in dental treatment provided or to be provided; Medical Assessor (MA) Nichols found the treatment provided to tooth 12 and 37 did not relate to the injuries sustained in the accident and was not reasonable and necessary in the circumstances; issue of causation and previous treatment and lack of complaint about face, jaw or tooth pain for six months after the accident; Held – claimant’s evidence not reliable; claimant had previous dental conditions; claimant did not report dental injury for six months; claimant did not injure tooth 12 and 37 in the accident; while treatment was reasonable and necessary to those teeth, it was not related to the injuries caused by the accident; certificate of MA revoked.
Decision date: 12 July 2023 | Panel Members: Member Belinda Cassidy, Dr Paul Curtin and Dr David Sykes | Injury module: Treatment Type: Dental treatment
Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injuries and treatment dispute by Medical Assessor (MA) Wijetunga and claimant’s review under section 7.26; claimant injured in rear end collision alleging injuries to neck, back and both shoulders; Held – Panel satisfied claimant injured his neck and lower back in the accident; claimant had pre-accident lower back pain; claimant did not have two signs of radiculopathy when examined and did not have two signs of radiculopathy at any time since the accident; no evidence of complete or partial rupture of soft tissues in neck or back; neck and back injuries threshold injuries; no pre-existing shoulder injuries of significance and scans taken within two month of accident found tears in left shoulder with delamination in the right shoulder; left shoulder mentioned to GP within two days of accident but right shoulder not mentioned for a month; Panel not satisfied that biomechanics of accident could have caused a right shoulder injury but satisfied left shoulder injury was caused; Panel of the view the claimant could have torn the ligaments and tendons of the left shoulder or further torn already torn ligaments and tendons in the accident; shoulder injury a non-threshold injury; referral to orthopaedic surgeon therefore related and reasonable and necessary; certificate of MA revoked.
Decision date: 20 July 2023 | Panel Members: Member Belinda Cassidy. Dr Drew Dixon and Dr Margaret Gibson | Injury module: Upper Limb and Spine; Treatment Type: Medical Specialist Consultation
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing social functioning; Held – Medical Assessment Certificate is revoked.
Decision date: 14 July 2023 | Panel Members: Member Richard Perrignon, Dr Nicholas Glozier and Dr Graham Blom | Body system: Psychological/Psychiatric
Appeal from assessment of whole person impairment (hearing loss); whether Medical Assessor erred by measuring noise-induced hearing loss by reference to the less affected left ear; by excluding hearing losses at 1500Hz and below from his assessment; by making a deduction for ‘pre-existing non-related’ losses; or by allowing only 2% for severe tinnitus; Held – Medical Assessment Certificate is confirmed.
Decision date: 18 July 2023 | Panel Members: Member Richard Perrignon, Dr Joseph Scoppa and Dr Robert Payten| Body system: Hearing
Whether Medical Assessor (MA) correctly recorded her findings from her examination of the appellant worker; whether MA erred by assessing appellant had only 3% whole person impairment (WPI) with respect to the ilioinguinal nerve; whether MA erred by assessing appellant had only 2% WPI with respect to the pudendal nerve; Appeal Panel found that when the Medical Assessment Certificate (MAC) considered as a whole, the MA correctly recorded her findings from her examination and that her findings were clear; Appeal Panel found that the MA was correct to assess the appellant had 3% WPI for the ilioinguinal nerve as the appellant had neurogenic pain and sensory alteration in the distribution of the ilioinguinal nerve on the left side only; Appeal Panel found that the MA erred by assessing the appellant had 2% WPI for the pudendal nerve as the appellant had neurogenic pain and sensory alteration bilaterally in the distribution of the pudendal nerve; Held – MAC revoked.
Decision date: 18 July 2023 | Panel Members: Member Marshal Douglas, Dr Chris Oates and Dr Mark Burns | Body system: Digestive System and Nervous System
Workplace Injury Management and Workers Compensation Act 1998; whether injury assessed was a nature and conditions injury; whether Medical Assessor erred by making a deduction under section 323(1) of 50% and not assuming under section 323(2) that the deduction to be made was 10%; Appeal Panel found the injury the subject of the assessment was an injury that occurred due to the appellant performing a specific task over the course of years; Appeal Panel found that the relevant date at which to determine whether the appellant had a pre-existing condition was the date at which she commenced that activity; Appeal Panel found that section 323(2) was engaged because whilst the evidence indicated appellant had a pre-existing condition at the relevant date it did not reveal the extent of the degeneration at that date and assuming the deduction to be made under section 323(1) was 10% was not at odds with the evidence; Held – Medical Assessment Certificate revoked.
Decision date: 19 July 2023 | Panel Members: Member Marshal Douglas, Dr Chris Oates and Dr James Bodel | Body system: Right Upper Extremity
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; pre-accident earning capacity; section 3.8; whether weekly benefits payable after the second entitlement period are calculated on net or gross pre-accident earning capacity; Allianz Australia Insurance Ltd v Jenkins applied; Held – the reviewable decision is affirmed.
Decision date: 7 July 2023 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under Division 3.3; dispute about post-accident earnings; compliance with sections 3.15 and 3.19; suspension of payments of weekly statutory benefits; declaration of employment; Division 6.6; veracity of evidence; credibility; duty of disclosure and to act honestly and not mislead; sections 6.3 and 6.24; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is dismissed.
Decision date: 11 July 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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