Legal Bulletin No. 125
This bulletin was issued on 25 August 2023
Issued 25 August 2023
Welcome to the one hundred and twenty fifth 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; decision of the Delegate; Medical Assessment Certificate; adequate reasons; grounds of assessment; motor injury; minor injury; threshold injury; radiculopathy; Held – remitted to the Personal Injury Commission; decision set aside.
Decision date: 24 August 2023 | Before: Harrison AsJ
Presidential Member Decisions
Workers compensation; whether an appeal can fairly and properly be heard in the absence of a transcript; Mosawi v Baron Forge 2 (NSW) Pty Ltd and Wyong Shire Council v Paterson considered and applied; Held – The Certificate of Determination dated 19 May 2023 is revoked.
Decision date: 14 August 2023 | Before: President Judge Phillips
Workers compensation; section 4 of the Workers Compensation Act 1987; whether worker in course of employment; AV v AW discussed and applied; Held – Certificate of Determination dated 26 August 2022 is amended to correct the date in order (1) to 18 November 2021, but is otherwise confirmed
Decision date: 15 August 2023 | Before: Acting Deputy President Geoffrey Parker SC
Workers compensation; the requirements of expert evidence in the Commission; application of South Western Sydney Area Health Service v Edmonds, Hancock v East Coast Timber Products Pty Ltd, Onesteel Reinforcing Pty Ltd v Sutton, Australian Securities and Investments Commission v Rich; fact finding; Nguyen v Cosmopolitan Homes; the Commission as a specialist tribunal; MMI Workers Compensation (NSW) Ltd v Kennedy, ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales, Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service; duty to give reasons; Hume v Walton, Pollard v RRR Corporation Pty Ltd; Waterways Authority v Fitzgibbon; Held – The Certificate of Determination dated 22 June 2022 is revoked.
Decision date: 16 August 2023 | Before: Deputy President Michael Snell
Workers compensation; whether surgery is a reasonably necessary medical expense pursuant to section 60 of the Workers Compensation Act 1987; Rose v Health Commission (NSW) and Diab v NRMA Ltd considered; approach to expert evidence; Hancock v East Coast Timber Products Pty Limited, Nguyen v Cosmopolitan Homes (NSW) Pty Ltd, South Western Sydney Area Health Service v Edmonds and Onesteel Reinforcing Pty Ltd v Sutton applied; guiding principles under rule 73 of the Personal Injury Commission Rules 2021 and section 21 of the Personal Injury Commission Act 2020; revocation and redetermination on appeal; section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998; Chubb Security Australia Pty Ltd v Trevarrow applied; Held – The Certificate of Determination dated 19 July 2022 is revoked.
Decision date: 16 August 2023 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; settlement approval $225,000; 81-year-old female; non-economic loss only; right shoulder aggravation of rotator cuff tear; psychological injuries, PTSD and major depressive disorder; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 1 August 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; settlement approval $114,000; 36-year-old female; past and future economic losses only; right ankle fracture now united; lumbar sprain ongoing intermittent pain; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 4 August 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; claimant passenger; claims lodged for statutory benefits and damages on wrong insurer GIO before accident 3rd anniversary; claimant applied to Personal Injury Commission to assess damages claim before 3rd anniversary; claimant lodged damages claim on correct insurer outside statutory time limit; claimant sought to join correct insurer to this application under rule 62 Personal Injury Commission Rules (PIC Rules) to continue application to assess damages; a late claim cannot be referred for assessment until section 6.14(5) satisfied; insurer can be joined but correct insurer joinder to application cannot cure delayed damages claim; NRMA submits application must be dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77 PIC Rules; Held – NRMA joined; application to assess damages is misconceived and dismissed.
Decision date: 4 August 2023 | Member: Terence O'Riain
Workers Compensation non-Presidential Member Decisions
Workplace Injury Management and Workers Compensation Act 1998; whether the Applicant was a worker at the time of the injury; section 4; interpretation of condition precedent and employment contract; Perri v Coolangatta Investments Pty Ltd; whether action of attending an employment medical was an activity in the course of her employment or whether the applicant was a ‘volunteer’; Whittingham v Commissioner of Railways (WA) and Henderson v Cmr of Railways (WA); Held – the applicant was a worker at the time of attending the employers medical examination.
Decision date: 10 August 2023 | Member: Diana Benk
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” that may give rise to a claim for lump sum compensation for permanent impairment under section 66(1); Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A that may give rise to a claim for lump sum compensation under section 66(1).
Decision date: 10 August 2023 | Member: Karen Garner
Workers Compensation Act 1987; psychological injury; claim for weekly compensation pursuant to sections 36 and 37 as well as medical expenses pursuant to section 60; applicant alleged that he sustained psychological injury due to bullying and harassment and unfair treatment; whether the applicant sustained an injury pursuant to section 4(b); main contributing factor; section 11A(1) in respect to discipline, dismissal and/or performance appraisal; Attorney General’s Department v K considered and applied; Held – the applicant sustained a psychological injury arising out of or in the course of his employment on the deemed date of 20 September 2021; the applicant’s employment was the main contributing factor to his injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline, dismissal and/or the provision of employment benefits; the applicant has had no current work capacity from 20 September 2021 to date and has no current work capacity.
Decision date: 15 August 2023 | Member: John Turner
Workers Compensation Act 1987; application for review of weekly payments following decision between the same parties which resulted in an award for weekly benefits and section 60 compensation as a result of psychological injury sustained by the applicant worker; submission that an acknowledgement by the applicant during the hearing of the matter that the respondent have credit for payments made to the applicant since he was suspended from work created an estoppel preventing the applicant seeking payment of weekly benefits ordered in the Certificate of Determination (COD) during the same period the applicant received ‘special leave’ from the respondent while it investigated allegations of misconduct by the applicant; Viney v Burwood Council and section 46 considered in respect of the alleged receipt of ‘dual benefits’ during the period that weekly benefits were ordered in favour of the applicant; the respondent submitted Viney could be distinguished and that the applicant suffered no loss during the period he was paid ‘special leave’, therefore he should not receive weekly payments during this period; submission by the respondent that the Commission lacked jurisdiction to hear the current application; the applicant also claimed section 60 expenses for car travel to and from his general practitioner, after having moved out of the area in which that practitioner practised; the respondent opposed this claim, relying inter alia, on section 60(2B); Held – the applicant was not estopped from seeking payment of weekly benefits ordered in the COD during the same period the applicant received ‘special leave’ from the respondent while it investigated allegations of misconduct by the applicant; that the Commission had jurisdiction to reconsider the COD in matter number W395/22; section 57 of the Personal Injury Commission Act 2020 considered; finding that the expenses claimed by the applicant for travel by car to and from his general practitioner’s surgery were not reasonable; the respondent was ordered to pay the weekly benefits awarded to the applicant during the period he was in receipt of ‘special leave’ from the respondent.
Decision date: 15 August 2023 | Member: Brett Batchelor
Claim for weekly compensation from 21 July 2022 as a result of proven injuries to the neck and shoulders 16 May 2009; worker also alleges that as a consequence of the respondent’s failure to provide domestic assistance she sustained further injury; employers case primarily based on credit and surveillance; consideration of inconsistencies in worker’s evidence; finding that the worker had no current earning capacity after 21 July 2022; worker had not proven that she had sustained further injury as a result of the injury of 16 May 2009 or the respondent’s failure to provide domestic assistance; Held – award for worker for weekly compensation on the basis of total incapacity.
Decision date: 15 August 2023 | Member: Paul Sweeney
Workers Compensation Act 1987; accepted primary psychological injury; defence under section 11A(1) raised with respect to discipline; section 66 permanent impairment claim disputed; weekly benefits and treatment and related expenses disputed; Northern NSW Local Health Network v Heggie, Department of Education and Training v Sinclair, Kushwaha v Queanbeyan City Council, Webb v State of New South Wales, Hamad v Q Catering Limited, and Van Vliet v Landscape Enterprises Pty Ltd considered and applied; Held – the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s accepted primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline within the meaning of section 11A(1).
Decision date: 15 August 2023 | Member: Anthony Scarcella
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 May 2014; the dispute related to the assessment of permanent impairment arising from skin scarring at multiple sites; application of Motor Accident Permanent Impairment Guidelines 1 June 2018; Class 1 skin disorder assessed under the TEMSKI; claimant re-examined to assess effects of scarring upon activities of daily living; Panel require to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applies; Held – claimant assessed at 4% permanent impairment as best fit due to scarring; original assessment revoked.
Decision date: 20 July 2023 | Panel Members: Member Gary Victor Patterson, Dr Michael McGlynn, and Dr Thomas Rosenthal | Injury module: Skin (Scarring)
Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Jones and claimant’s review under section 7.26; claimant involved in intersection collision in May 2018; claimant’s infant grandson in child seat behind her; claimant sustained soft tissue injuries and chronic pain; claimant developed psychological symptoms; MA Parmegiani assessed WPI at 18% in October 2021; insurer obtained surveillance film and social media posts suggesting activity inconsistent with severity of claimant’s alleged injury; MA Jones determined WPI at 8% in April 2022; no issue that clamant had sustained an injury (diagnosed as post-traumatic stress disorder); claimant provided evidence that about half of the social media posts were “old” posts reposted and evidence from family and friends as to the impact of the accident on her functioning both physically and psychologically; issue of alleged pre-existing psychiatric condition addressed and evidence obtained that no previous psychological treatment had been provided; Held – Panel applied International Statistical Classification of Diseases and Related Health Problems (not Diagnostic and Statistical Manual of Mental Disorders) and reasons given; face to face medical examination occurred; claimant diagnosed with post-traumatic stress disorder; no previous psychiatric condition, no adjustment for treatment and WPI assessed at 13%.
Decision date: 2 August 2023 | Panel Members: Member Belinda Cassidy, Dr John Baker, and Dr Chris Rikard-Bell | Injury module: Mental and Behavioural
Motor Accidents Compensation Act 1999; side on collision on 27 April 2015; issue of extent of domestic assistance from date of accident; Medical Assessor (MA) found motor accident caused need for domestic assistance and remitted matter to an occupational therapist to determine the extent of the need; subsequent MA determined initial need at 3.5 hours per week and ongoing at 2.5 hours per week; claimant re-examined and the extent of the need assessed; finding that need would cease at 75 years of age due to underlying health conditions and otherwise due to the ageing process; ongoing need assessed at 1.25 hours per week; Held – original assessment revoked.
Decision date: 4 August 2023 | Panel Members: Principal Member John Harris, Lauren Alach, and Dawn Pienbenga | Injury module: Treatment Type: Domestic Assistance
Motor Accident Injuries Act 2017; claimant was a pedestrian hit by a car in a shopping centre car park at low speed; injuries reported to his spine, chest, shoulders, arms, legs, knees and psychological injuries; original Assessor found most injuries not caused by the accident; only injury of fractured rib found to be a non-threshold injury; injury to rib and two knees assessed at permanent impairment of 0%; Held – original medical certificates affirmed; claimant gave inconsistent account of how accident occurred; claimant had history of soft tissue injury to his cervical, thoracic and lumbar spines but has no radiculopathy.
Decision date: 8 August 2023 | Panel Members: Member Ray Plibersek. Dr David Gorman, and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injury by Medical Assessor (MA) Menogue and claimant’s review under section 7.26; claimant alleged injury to right shoulder, neck and back following March 2018 intersection collision; issue of causation due to previous significant neck injury in 2014 and lower back treatment one month before the accident; issues about radiculopathy at time of assessment or any time thereafter and pathology on scans; Held – claimant conceded right shoulder was a threshold injury; Panel found claimant injured his neck, thoracic and lower back in the accident but Panel not satisfied current presentation caused by the accident due to the absence of clinical complaints after the first few months and treating specialist’s history of a new neck injury three years after the accident; history in records supported a finding thoracic and lumbar injury recovered and that the claimant sustained a new injury while overseas or on return; in any event no evidence of two of the five signs of radiculopathy in neck or back at any time since the accident; expert evidence showed no change in pre and post-accident thoracic or lumbar pathology on MRI scans; certificate of MA confirmed.
Decision date: 9 August 2023 | Panel Members: Member Belinda Cassidy, Dr Mohammed Assem, and Dr Margaret Gibson | Injury module: Spine
Dispute about whether the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10%; Medical Assessment under review certified that the Major Depressive Disorder, caused by the accident, did not give rise to a permanent impairment greater than 10%; Held – the claimant’s Major Depressive Disorder, caused by the accident, gives rise to permanent impairment greater than 10%.
Decision date: 10 August 2023 | Panel Members: Member Terence Stern, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; Medical Assessor (MA) Ian Cameron diagnosed a significant injury to the claimant’s right hip with a labral tear which was not minor; MA determined that causation was established; Held – claimant suffered a labral tear of the right hip being a non-minor injury (now a ‘non-threshold injury’).
Decision date: 10 August 2023 | Panel Members: Member Terence Stern, Dr Michael Couch, and Dr Sophia Lahz | Injury module: Spine, Upper and Lower Limb and Brain Injury
The claimant suffered injury in a motor vehicle accident on 22 May 2021; assessment of threshold injury; Medical Assessor (MA) Wijetunga certified the back soft tissue injury was caused by the accident and was a threshold injury; she certified injury to the cervical spine, injury to the thoracic spine and discrete injury to the lower limbs were not caused by the accident; claimant submitted constant pain and nerve impingement constituted radiculopathy; Held – Panel considered David v Allianz Australia Ltd; claimant had pre-accident grade 1 anterolisthesis of L4/5 and a disc prolapse at L4/L5 exacerbated by the accident; Panel not convinced claimant demonstrated two signs of radiculopathy; even if clinical records of GP sufficient to demonstrate two signs of radiculopathy Panel notes those symptoms were exactly the same as those recorded in 2019 and not caused by the accident; Panel revokes certificate of MA; claimant sustained soft tissue injury to the lumbar spine, to the cervical spine, and to the thoracic spine which are threshold injuries; the claimant did not sustain injury to the right or left leg.
Decision date: 15 August 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Michael Couch | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Workers Compensation Act 1987; application for assessment by a Medical Assessor (MA); employer argued that MA had no jurisdiction to determine whether worker suffered whole person impairment (WPI) as a result of an accepted injury the cervical spine; employer had denied liability for the cost of a cervical fusion and the dispute as to whether that surgery was reasonably necessary as a result of injury within section 60 had not been brought before or determined by the Commission; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffarie v Quality Castings Pty Ltd considered; Held – MA had jurisdiction to assess WPI as a result of injury in accordance with section 319 of Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment Certificate confirmed.
Decision date: 10 August 2023 | Panel Members: Member Paul Sweeney, Dr Margaret Gibson, and Dr Drew Dixon | Body system: Spine, Left Upper Extremity, Right Upper Extremity, Left Lower Extremity, and Scarring (TEMSKI).
Workplace Injury Management and Workers Compensation Act 1998; worker alleges error by Medical Assessor (MA) in making a deduction of 30% pursuant to section 323(1); evidence established long-standing pre-existing osteoarthrosis in shoulder joint which contributed to the impairment of worker’s right upper extremity; Vannini v Worldwide Demolitions Pty Limited considered; Held – that it was open to the MA to make a deduction of 30%; error not established; Medical Assessment Certificate confirmed.
Decision date: 10 August 2023 | Panel Members: Member Paul Sweeney, Dr John Brian Stephenson, and Dr Gregory McGroder | Body system: Right Upper Extremity
Whether the Medical Assessor (MA) complied with the requirements of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) to meet the criteria for Complex Regional Pain Syndrome (CRPS); whether the MA disclosed a path of reasoning for a diagnosis of CRPS; reference to Elsworthy v Forgacs Engineering, Windley v Workers Compensation Nominal Insurer and Turner v Truss-T-Frame Timbers; Held – the MA properly met the strict and demanding requirements of Chapter 17 of the Guidelines for an assessment of permanent impairment for CRPS; Medical Assessment Certificate confirmed.
Decision date: 11 August 2023 | Panel Members: Member John Isaksen, Dr David Crocker, and Dr James Bodel | Body system: Right Upper Extremity
Workplace Injury Management and Workers Compensation Act 1998; section 323 deduction; worker’s left hip was asymptomatic before injury; radiology showed advanced osteoarthritic change in both hips; left total hip replacement; right hip remains asymptomatic; Medical Assessor made section 323 deduction of one-tenth and gave reasons; Cole v Wenaline Pty Ltd, Vitaz v Westform (NSW) Pty Ltd, El-Masri v Woolworths Ltd, Vannini v Worldwide Demolitions Pty Ltd considered; Held – Medical Assessment Certificate confirmed.
Decision date: 11 August 2023 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr Tommasino Mastroianni | Body system: Spine, Left Lower Extremity, and Scarring (TEMSKI)
Appeal from assessment of whole person impairment (WPI) (cervical spine); whether the assessor erred in assessing a Diagnosis Related Estimate (DRE) category II impairment; whether he erred in allowing 2% for effects on the activities of daily living; whether he erred in failing to make a deduction for the effects of congenital fusion at C2/3; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 16 August 2023 | Panel Members: Member Richard Perrignon, Dr Neil Berry, and Dr Alan Home | Body system: Spine and Left Upper Extremity.
Motor Accidents Merit Review Decision
Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under Division 3.3; determination of pre-accident weekly earnings (PAWE) under Clause 4 of Schedule 1; Uber delivery driver; during the 12 months prior to the accident claimant travelled overseas from 26 August 2022 to 16 November 2022; claimant was earning continuously from 19 November 2022 to the day of the accident; insurer determined claimant’s PAWE under sub-clause 4(1); whether the claimant’s PAWE should be determined under sub-clause 4(2)(a); Held – the reviewable decision is set aside; costs allowed on the basis of exceptional circumstances under section 8.10(4)(b).
Decision date: 15 August 2023 | Merit Reviewer: Maurice Castagnet
Motor Accidents Merit Review Panel Decision
Motor Accident Injuries Act 2017; review of Merit Review determination about the amount of weekly payments of statutory benefits that are payable under Division 3.3; single Merit Reviewer affirmed the insurer’s pre-accident weekly earnings (PAWE) determination at $529.16; claimant applied for review of the Merit Review; application provided new evidence as amended 2020 financial year taxation return; Held – Review Panel remitted dispute to the insurer to re-determine PAWE; directions made for claimant to provide further information, including, copy of amended notice of tax assessment with source documents used to prepare the amended tax return.
Decision date: 11 August 2023 | Merit Reviewers: Terence O’Riain, Elizabeth Medland and 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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