Legal Bulletin No. 134
This bulletin was issued on 27 October 2023
Issued 27 October 2023
Welcome to the one hundred and thirty fourth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Presidential Member Decision
Workers compensation; consideration of objective evidence when witness evidence unreliable; Devries v Australian NationalRailways Commission applied; histories recorded by the medical experts are not required to be precisely in accord with the proven facts; Ramsay v Watson,Paric v John Holland (Constructions) Pty Ltd applied; requirement to show error; Raulston v Toll Pty Ltd applied; failure to raise an argument before the primary decision maker; Mamo v Surace; Brambles Industries Limited v Bell applied; referral of a claim pursuant to section 66 of the Workers Compensation Act 1987 to a medical assessor after liability for injury was determined; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd; Jaffarie v Quality Castings Pty Ltd applied; failure to consider a submission does not amount to error where the submission would not change the outcome; Walshe v Prest; Gerlach v Clifton Bricks Pty Limited applied; Held – The Member’s Certificate of Determination dated 26 October 2022 is confirmed.
Decision date: 19 October 2023 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; 59-year-old motorcyclist injured in a collision with insured motor vehicle; sustained displaced of the right ankle; injury to the right hand; abrasions to the left shin, underwent surgery being an open reduction and internal fixation of the right ankle fracture; several periods off work; claimant now working on a casual basis at reduced hours; insurer conceded claimant had sustained a non-threshold injury; liability admitted; claimant is employed as an optical dispenser; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).
Decision date: 9 October 2023 | Member: David Ford
Motor Accident Injuries Act 2017; settlement approval $300,000; 73-year-old female; non-economic loss only; fractures to right ankle, femur, patella, tibial plateau, fibular head, calcaneus and talus; rib fracture now healed; abdominal injuries healed; scarring; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 16 October 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; settlement approval $365,000; 63-year-old female; non-economic loss only; pedestrian suffered extensive injuries; fractures to pelvis, ribs and spine; burst anus and rectum; degloving gluteal injury; renal contusions and subarachnoid haemorrhage; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 17 October 2023 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; claim for weekly payments and section 60 expenses for psychological injury; whether applicant bullied after back injury; Held – central issue of whether psychiatric injury primary or secondary not relevant to issues, as no claim made for non-economic loss; issue dominant in submissions and decision given even though obiter; Attorney General v K, Papa v RP Bricklaying, and Strinic v Singh considered; applicant’s accounts of bullying not based on real events; applicant’s credit impugned; psychiatric injury secondary to misperception of medical advice.
Decision date: 28 September 2023 | Member: John Wynyard
Workers Compensation Act 1987; claim by former police officer for weekly compensation as a result of an accepted psychological injury; state denied liability on the basis of section 11A(1); applicant suspended for lengthy period and investigated for misconduct prior to resignation; applicant previously exposed to potentially traumatic events conflicting diagnoses; Northern NSW Local Health Network v Heggie and Department of Education & Training v Sinclair considered; Held – the State had proven that the applicant’s injury was predominantly due to reasonable action with respect to discipline or dismissal; award for the respondent.
Decision date: 13 October 2023 | Member: Paul Sweeney
Claim for weekly benefits for two closed periods; medical expenses; and permanent impairment compensation; accepted claim for injury to the right shoulder; respondent disputed that the applicant had sustained bilateral carpal tunnel syndrome, injury to the left shoulder, or injury to the cervical spine; parties agreed on applicant’s pre-injury average weekly earnings, and that claim for weekly benefits was to be determined before referral to a Medical Assessor; consideration of Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors, AV v AW, Alto Ford v Antaw, Stone v Stannard Brothers Launch Services Pty Ltd, Diab v NRMA Ltd, and Mason v Demasi; Held – applicant sustained bilateral carpal tunnel syndrome, being a disease injury to which employment was the main contributing factor; award for the respondent for injury to the left shoulder and cervical spine; award for the applicant for weekly benefits during periods when she had no current work capacity following carpal tunnel decompression surgery on each wrist; award for the applicant of medical expenses claimed, excluding treatment of cervical spine; matter remitted to President for referral to Medical Assessor for assessment of impairment as a result of injury to the right upper extremity and left upper extremity.
Decision date: 13 October 2023 | Senior Member: Kerry Haddock
The applicant claimed a psychological injury as a result of exposure to a graphic death at a hostel; dispute as to whether the exposure was the main contributing factor amongst a number of possible factors capable of causing an aggravation to an existing vulnerability; Held – exposure was the main contributing factor to the aggravation of his underlying psychiatric condition; award for the applicant.
Decision date: 13 October 2023 | Member: Lea Drake
Calculation of pre-injury average weekly earnings (PIAWE) under schedule 3 of the Workers Compensation Act 1987 and Part 4 of the Workers Compensation Regulation 2016 clause 8C; whether the period used to calculate PIAWE should exclude the period before pay increase under an enterprise agreement; Cain v Tamworth Aboriginal Medical Service, Firth v HammondCare, Wake v State Emergency Services and Field v Secretary, Department of Education considered; Held – that the calculation of PIAWE should exclude the period before the pay increase.
Decision date: 16 October 2023 | Member: Catherine McDonald
Workers Compensation Act 1987; claim for cost of surgery to left shoulder and neck; fact of injury accepted; need for surgery accepted; only issue in dispute is the correct date of injury and which period of risk between two insurers the relevant injuries fell under; Held – the injuries are in the nature of the aggravation of a disease process; section 16(1); in accordance with section 16(1), the correct deemed date of injury is the date of incapacity; in this matter, the evidence discloses the applicant was first incapacitated for work on a date when the respondent was self-insured, namely 1 December 2020; respondent as self-insurer ordered to pay the costs of and incidental to the surgery to the applicant’s left shoulder and the proposed surgery to the applicant’s cervical spine.
Decision date: 16 October 2023 | Member: Cameron Burge
Claim for cost of proposed cervical surgery opposed on grounds it is neither reasonably necessary nor does the need arise from an accepted work-related injury; Held – the applicant suffered injury to his cervical spine in the course of his employment with the respondent; the proposed cervical spine surgery is reasonably necessary as a result of the applicant’s injury; the respondent is to pay the costs of and incidental to the proposed surgery.
Decision date: 16 October 2023 | Member: Cameron Burge
Workers Compensation Act 1987; claim for treatment of left shoulder; accepted injury to lumbar and cervical spines when applicant took the weight of a patient while transferring a patient between beds; dispute whether applicant suffered injury to his left shoulder within the meaning of section 4(a); claim regarding lumbar and cervical spines determined in 2012; claim regarding left shoulder injury discontinued in 2012; consideration of clinical records; evidence of severe osteoarthritis in the left shoulder; Held – finding that applicant suffered injury to left shoulder in the incident in 2008; finding that injury materially contributed to the need for treatment.
Decision date: 16 October 2023 | Member: Jill Toohey
Claim for permanent impairment compensation to multiple body parts; right upper extremity injury admitted; balance of claimed body systems disputed; the applicant alleges the nature and conditions of her employment caused a series of micro-traumata to her cervical spine, lumbar spine, left knee and left foot and that, despite specific later incidents which aggravated that trauma, it was her work duties generally which caused her injuries; in the alternative, the applicant claims the nature and conditions of her employment caused aggravation to underlying pathology of those body systems; Held – the evidence discloses the applicant complained of symptoms to the allegedly affected body systems over the course of many years to her GP and treating surgeon, predating any specific injury to those affected body systems; the views of the applicant’s treating surgeon, who has treated her over many years, are persuasive in establishing the nature and conditions of the applicant’s employment were causative of injury to the disputed body systems; his views are supported by contemporaneous complaint, investigation and clinical records; all claimed body systems are to be referred for medical assessment.
Decision date: October 2023 | Member: Cameron Burge
Motor Accidents Medical Review Panel Decisions
Review of decision of Medical Assessor (MA) Hong who found the claimant had a persistent depressive disorder and a somatic symptom disorder with predominate pain and assessed 7% whole person impairment (WPI); claimant injured in an accident on 20 April 2018 suffering physical disabilities and subsequently to this a psychiatric disability; claimant became dependent on consumption of cannabis but ultimately was able to cease this; claimant has been able to continue his employment; claimant originally assessed with a psychiatric impairment of 17% and 16% but the panel is found that the claimant had made a satisfactory adaptation to his injury; panel assessed the claimant as having 6% WPI and having an adjustment disorder with mixed anxiety and depressed mood; Held – certificate of MA Hong revoked.
Decision date: 10 October 2023 | Panel Members: Member Alexander Bolton, Dr Wayne Mason, and Dr Gerald Chew | Injury module: Mental and Behavioural
Review of certificate of Medical Assessor (MA) Assem dated 15 March 2022 who found the claimant had a whole person impairment (WPI) of 6% made up of 3% for the left shoulder and 3% for the right shoulder; the assessment of MA Assem was combined with an assessment of MA O’Neill dated 28 June 2021 of 5% WPI for injury to the claimants cervical spine and an assessment of MA Cameron of 0% for an injury to the claimant’s head giving a total of 11% WPI; claimant involved in a collision at a roundabout on 4 December 2014; discussion whether MA Assem and the Panel bound by an earlier certificate of MA Crane of 4 April 2016 rejected by the Panel as this is a hearing de novo; Panel not satisfied that there was referred pain from the claimant’s cervical spine to his shoulders; Panel was satisfied that the claimant had injured his left shoulder in the accident but at the time of assessment this injury had resolved; the Panel assessed the claimant as 0% WPI which, combined with the assessments of MA O’Neill and MA Cameron give a combined impairment of 5% WPI; Held – certificate of MA Assem revoked.
Decision date: 10 October 2023 | Panel Members: Member Alexander Bolton, Dr Rhys Gray, and Dr Tai-Tak Wan | Injury module: Upper Limb
Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained physical injuries in a motor accident on 8 November 2029; Medical Assessor (MA) Home determined that the claimant sustained injuries to the cervical spine, lumbar spine, left shoulder and pelvis caused by the motor accident and were minor injuries; review sought by claimant under section 7.26; consideration and application of section 1.6 and clause 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant suffered a soft tissue injury to the cervical spine and an aggravation of underlying early degenerative change at C4/5 and C5/6; a soft tissue injury of the lumbar spine, which has resolved; a soft tissue injury of the left shoulder, which has resolved; and a soft tissue injury of the pelvis, which has resolved; the injuries sustained by the claimant were all threshold injuries; the certificate of MA Home dated 18 October 2022 is confirmed.
Decision date: 11 October 2023 | Panel Members: Member Anthony Scarcella, Dr Ian Cameron, and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; the claimant suffered injury on 8 January 2021; the dispute related to whether she sustained non threshold physical injuries; a previous Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review; current review by insurer of finding that claimant sustained non-threshold physical injury; Panel raised that current review lacking in substance and/or constituted an abuse of process as non-threshold finding for psychological injury not challenged; insurer submitted that it intended to seek a further application of previous MA of non-threshold psychological injury; that finding was dependent upon motor accident caused physical injury; insurer relied on additional evidence disputing physical injury caused by motor accident; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application not an abuse of process or lacking in substance; insurer entitled to pursue review and had explained why it was proceeding; dismissal of review would deprive insurer of existing right; insurer’s submission raised issues of causation of physical injuries; that conclusion may undercut the finding of the previous MA that the psychological injury was caused by the back injury caused by the motor accident; Held – application to dismiss the review of the medical assessment rejected.
Decision date: 13 October 2023 | Panel Member: Principal Member John Harris| Injury module: Spine
Workers Compensation Medical Appeal Panel Decisions
Appeal against 7% WPI in psychological injury case: whether Medical Assessor had exposed his path of reasoning; Held – path of reasoning conspicuous by its absence, presumption of regularity rebutted by lack of reasoning, appellant re-examined; Wingfoot Australia Partners Pty Ltd v Kocak, El Masri v Woolworths Ltd, and Western Sydney Local Health District v Chan applied; Bojko v ICM Property Service Pty Ltd & Ors, Ferguson v State of New South Wales, and Glenn William Parker v Select Civil Pty Ltd referred to; Medical Assessment Certificate revoked.
Decision date: 13 October 2023 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
The worker suffered an accepted left hip injury in 2021 and underwent a total hip replacement; the Medical Assessor(MA) assessed the impairment of the hip at 20% and the surgical scar at 2%; reasons of MA did not disclose examination findings for the scar; the Panel could not discern whether the Medical Assessment Certificate (MAC) contained a demonstrable error, or the assessment was made on the basis of incorrect criteria; failure to give adequate reasons; demonstrable error established; Wingfoot Australia Partners Pty Ltd v Kocak applied; respondent re-examined; examination findings showed shape, colour and texture was pale in colour and visible to worker; some effect on activities of daily living; no staple marks and no adherence; applying best fit; skin impairment assessed at 2%; Held – MAC confirmed.
Decision date: 13 October 2023 | Panel Members: Principal Member John Harris, Dr Roger Pillemer, and Dr David Crocker | Body system: Left Lower Extremity and Left Upper Extremity
Workplace Injury Management and Workers Compensation Act 1998; appellant submitted Medical Assessor (MA) erred with respect to his ratings of her impairment in self-care and personal hygiene, travel, and social functioning and by finding that a proportion of her permanent impairment was due to a pre-existing condition and making a deduction under section 323(1) on account of that; Appeal Panel found the it was open to the MA based on the evidence before him to rate the appellant’s impairment in the various categories as he did; Appeal Panel also found that MA was correct to find that a proportion of the appellant’s permanent impairment was due to a pre-existing condition and was therefore correct to make a deduction under section 323(1) for that; Held – Medical Assessment Certificate upheld.
Decision date: 13 October 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Worker alleges that in failing to consider gait derangement and section 17.2c of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed, the Medical Assessor did not deal with a clearly articulated argument in respect of assessment of his right lower extremity; Held – failure to consider the appellant’s assessment constituted error; after reassessment Panel held that gait derangement inappropriate methodology for assessment; Guidelines chapter 3.10 applied; muscle strength considered to be the most appropriate method of assessment; Medical Assessment Certificate revoked.
Decision date: 16 October 2023 | Panel Members: Member Paul Sweeney, Dr Allan Home, and Dr Doron Sher | Body system: Spine, Right Lower Extremity, and Scarring
Medical Assessor (MA) apportioned appellant’s permanent impairment between work injury and subsequent stressors to which appellant was exposed and which worsened her impairment; whether MA erred by doing so; Appeal Panel held Medical Assessor did err; Held – Medical Assessment Certificate revoked.
Decision date: 16 October 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Significant physical injury and psychological injury; referred to Medical Assessor (MA) without determination of primary/secondary psychological injury; ma diagnosed post-traumatic stress disorder (primary) and major depressive disorder (secondary) and apportioned 50% to each; appeal lodged then referred to Commission member who determined there was a primary and a secondary injury; MA did not set out symptoms relied on or diagnosis of major depressive disorder; re-examination; worker suffered both conditions; on the evidence, apportionment was open to the MA in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed.
Decision date: 16 October 2023 | Panel Members: Member Catherine McDonald, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
Appeal against Medical Assessor’s (MA) assessments of impairments in the respondent’s thumbs and fingers on the basis that such assessments were not covered by the referral; demonstrable error alleged; fresh evidence not admitted; error found on the basis that no formal claim had been made regarding any impairments in the respondent’s thumbs and fingers, and therefore there was no medical dispute regarding such impairments that could be determined by the MA; Queanbeyan Racing Club Ltd v Burton, Skates v Hills Industries Limited, Sakr v Merrylands Christian Preschool Association Inc, and Campbelltown City Council v Vegan considered; Held – Medical Assessment Certificate (MAC) revoked and new MAC issued removing the MA’s calculations regarding the impairments to the thumbs and fingers but otherwise applying the MA’s other assessments.
Decision date: 16 October 2023 | Panel Members: Member Gaius Whiffin, Dr Tommasino Mastroianni, and Dr John Stephenson | Body system: Left and Right Upper Extremity
Appellant worker alleged error by Medical Assessor (MA) in the application of a one-half deduction of impairment for the left knee which was the subject of a specific injury and a three-quarter deduction of impairment for the right knee as a consequential condition; both lower limbs involved total knee replacements; the Appeal Panel considered that the deductions were consistent with the available evidence of long standing and widespread degenerative changes in both knees and the MA had provided appropriate reasoning for those deductions; Held – Medical Assessment Certificate confirmed.
Decision date: 17 October 2023 | Panel Members: Member John Isaksen, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Left and Right Lower Extremity, and Scarring (TEMSKI)
The appellant submitted that the Medical Assessor erred in his determination that the respondent rated a class 3 in relation to social and recreational activities, rather than class 2; the Panel agreed; there was extensive evidence of the respondent engaging in a variety of social and recreational activities; Held – Medical Assessment Certificate revoked.
Decision date: 17 October 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings (PAWE); meaning of earnings; schedule 1, clause 3(1), clause 3(2), clause 4(1); whether expected post-accident earnings or other anticipated earnings or employment benefits can be included in PAWE; whether PAWE can be adjusted to account for cost of living, impact of the accident, emotional distress; earnings received as an earner in the 12 months before the day of the motor accident; Held – the reviewable decision is set aside.
Decision date: 17 October 2023 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings (PAWE); schedule 1, clause 4; clause 4(1) earnings received as an earner in the 12 months before the day of the accident; average over 52 weeks; no adjustment to accommodate fluctuation in earnings from casual employment; earnings received after the day of the motor accident excluded from PAWE; Held – the reviewable decision is set aside.
Decision date: 19 October 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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