Legal Bulletin No. 136
This bulletin was issued on 10 November 2023
Issued 10 November 2023
Welcome to the one hundred and thirty sixth 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; section 4 of the Workers Compensation Act 1987; whether the appellant sustained an injury to the cervical spine; credit and cross-examination; Aluminium Louvres & Ceilings Pty Ltd v Zheng applied; whether Member failed to engage with the evidence and submissions made; fact finding; Nguyen v Cosmopolitan Homes applied; approach to expert evidence; Paric v John Holland Constructions Pty Ltd; Held – the appeal is dismissed; Certificate of Determination dated 7 October 2022 is confirmed.
Decision date: 2 November 2023 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decision
Motor Accident Injuries Act 2017; settlement approval in the sum of $16,544; 61-year-old female; past and future economic only; no entitlement to non-economic loss; 0% whole person impairment; internal injury to spleen and liver now healed; intermittent ongoing future loss; buffer awarded; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 1 November 2023 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Claim for lump sum compensation in respect of seven separate injuries; dispute regarding notice of injury and notice of claim regarding some injuries; applicant successful; claim remitted for referral to a Medical Assessor; Certificate of Determination issued ordering the respondent to pay lump sum compensation and costs; applicant subsequently sought an uplift for complexity in accordance with Table 4 of Part 2 of Schedule 6 of the Workers Compensation Regulation 2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – matter complex; certified 10% uplift for complexity for both parties.
Decision date: 26 October 2023 | Principal Member: Glenn Capel
Weekly compensation; whether cause of accepted aggravation to underlying condition was work-related; applicant suffered pre-existing condition in his right knee, which was aggravated in or about 2020; he claims the aggravation was caused by his duties as an apprentice carpenter; the respondent alleges the aggravation was caused by the applicant playing basketball; Held – the applicant must establish the cause of the aggravation was work-related, not the cause of the underlying condition; Federal Broom Co Pty Ltd v Semlitch, Anton Mitic v Rail Corporation of NSW, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd, and Cant v Catholic Schools Office followed; the evidence discloses the applicant ceased playing basketball in or about early 2020, however, his symptoms continued to worsen up to and including mid-2020, consistent with his employment being the main contributing factor to the aggravation; the evidence also discloses the applicant was totally incapacitated for the period claimed; respondent ordered to pay weekly compensation as claimed.
Decision date: 30 October 2023 | Member: Cameron Burge
Death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.
Decision date: 30 October 2023 | Principal Member: Glenn Capel
Psychological injury claim for permanent impairment compensation; whether prior award by Workers Compensation Commission of a secondary psychological injury gives rise to an estoppel of any kind or a res judicata such as to prevent the applicant bringing a claim for primary psychological injury; Held – the previous findings of the Commission do not give rise to any estoppel or res judicata; the applicant did not have the necessary evidence to enable him to bring a claim for primary psychological injury until such time as he had an opinion from an expert which assessed his impairment from such injury at 15% or more; as a result there is no Anshun estoppel; the estoppel defences are the only ones raised by the respondent against the applicant’s claim; This being so, and given the only medical evidence in the matter assesses the applicant as suffering a 15% whole person impairment, the Commission will move to assess the applicant’s impairment in accordance with the medical evidence; respondent ordered to pay the applicant permanent impairment compensation for a 15% whole person impairment.
Decision date: 30 October 2023 | Member: Cameron Burge
Workers Compensation Act 1987; claim for lump sum compensation; applicant makes claim for section 67 compensation; claim for section 67 compensation had previously been made in 2005, at which time the applicant settled her section 66 claim by complying agreement in respect of an 8% whole person impairment; in 2022, the applicant brought a further section 66 claim which was the subject of a medical assessment by the Commission; the applicant was found to have a 16% whole person impairment, at which point she asserted her claim for section 67 had not previously been dispensed with; Held – the entering into of the complying agreement in 2005 for an 8% whole person impairment, being an amount which did not entitle the applicant to section 67 compensation, effectively dealt with the claim for pain and suffering; the applicant’s claim for section 67 compensation was not extant at 19 June 2012, being the date the 2012 amendments to the Act took effect and ended the entitlement to claim for section 67 compensation; as such, no transitional provisions in relation to claims made before the 2012 amendments apply in this matter; the effect of the applicant’s contention is a pre-2012 claim for section 67 compensation remains on foot forever, notwithstanding a pre-2012 settlement which did not enliven the provisions of the then section67 itself; award for the respondent on the claim for section 67 compensation.
Decision date: 31 October 2023 | Member: Cameron Burge
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 as a result of undisputed injury to the right lower extremity (knee) and disputed consequential condition in the lumbar spine, and urological condition; the respondent relied on discrepancies between the applicant’s evidence and histories supplied to treating and qualified medical examiners to submit that reports in support of the claim could not be relied upon; detailed examination of medical evidence to find that any such discrepancies did not detract from the medical evidence in support of the applicant’s claim; finding that that two conditions claimed by the applicant were consequent upon the undisputed right knee injury; Held – matter referred to Medical Assessor for assessment.
Decision date: 31 October 2023 | Member: Brett Batchelor
Claim for proposed lumbar spine surgery; causation dispute; Kooragang Cement Pty Ltd v Bates, Mason v Demasi, Diab v NRMA Ltd, and Margaroff v Cordon Bleu Cookware Pty Ltd considered; Held – proposed surgery reasonably necessary as a result of injury.
Decision date: 1 November 2023 | Member: Michael Wright
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; review under section 7.26; psychological injury; whether claimant’s permanent impairment that resulted from post-traumatic stress disorder (PTSD) caused by the accident is greater than 10%; where Medical Assessor found that permanent impairment as a result of PTSD was not greater than 10%; Held – PTSD caused by the accident gave rise to a 7% permanent impairment; the claimant’s permanent impairment that resulted from her PTSD caused by the accident is not greater than 10%; the certificate under review confirmed.
Decision date: 23 October 2023 | Panel Members: Senior Member Brett Williams, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; threshold injury dispute and review of medical assessment under section 7.26; claimant claimed injuries to neck, both shoulders and both hips in a rear end collision; Medical Assessor (MA) Wijetunga found all injuries were threshold injuries; parties agreed that the only injuries to be assessed were the claimant’s left and right shoulder injuries; claimant was 57 at the time of the accident and a council worker; ultrasound after the accident showed tears to the claimant’s soft tissues in both shoulders (including a SLAP tear in the right); no tears found on MRI in left shoulder; two labral tears to labrum found on MRI of right shoulder; insurer alleged tears were degenerative not traumatic; Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance an Briggs v IAG Limited t/as NRMA Insurance cited; Held – MRI preferred over ultrasound; mechanism of accident could have caused tears to the labrum; accident did cause tears because no shoulder complaints in GP notes before accident, consistent complaints after accident, no subsequent injury; labrum is a fibrocartilaginous structure; tear of labrum is a “partial rupture of tendons, ligaments, menisci or cartilage” within the meaning of section 1.6(2); certificate of MA Wijetunga revoked;
Decision date: 24 October 2023 | Panel Members: Member Belinda Cassidy, Dr Mohammed Assem, and Dr Tania Rogers | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; various treatment disputes and threshold dispute; claimant involved in a motor accident on 18 June 2021 in rear end collision; claimant re-examined by Medical Assessor; claimant established that injury to right shoulder as non-threshold due to absence of prior scans, early complaint, medically plausible as seatbelt restrained right shoulder and subsequent imaging; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes; claimant suffered non-threshold injury to right shoulder.
Decision date: 25 October 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine and Upper Limb
On 26 February 2018, following revision right hip replacement surgery, the claimant was travelling in a patient transport van in a semi-recumbent position when it was involved in a rear end collision; back doors of van cut out to extract claimant; following ongoing complaints and investigation a rupture of the gluteus tendon diagnosed on 29 June 2018 and a chest X-ray on 30 July 2018 identified a T8 fracture; dispute as to causation; Medical Assessor (MA) Kenna found the tendon rupture and T8 fracture were caused by the accident and were non-threshold injuries; Held – test for causation as per Briggs v IAG Limited Trading as NRMA Insurance; tendon rupture and T8 fracture caused or materially contributed to by the accident; certificate of MA Kenna affirmed.
Decision date: 25 October 2023 | Panel Members: Member Susan McTegg, Dr Neil Berry, and Dr Margaret Gibson | Injury module: Spine and Lower Limb
Review of decision of Medical Assessor (MA) Cameron finding a 12% whole person impairment (WPI) assessment of the claimant who was injured in an accident on 9 March 2017; the claimant injured her lumbar spine and subsequently had two surgical procedures resulting in considerable pain and for which she required multiple anti-inflammatory medications and analgesics which the claimant claimed caused gastrointestinal symptoms arising 12 months post-accident; insurer conceded WPI of 10% for the lumbar spine but disputed an assessment of 2% for upper gastrointestinal inflammation; the insurer asserted that the gastrointestinal problems were too remote having risen 12 months post-accident and are more likely to be a result of lactose intolerance; the Panel was satisfied that gastrointestinal inflammation was likely to occur gradually and not immediately due to the gradual and long term consumption of medication; the Panel was also satisfied that the upper intestinal problems are not a consequence of lactose intolerance which is a lower intestinal symptom; Held – the claimant had a 10% WPI of her lumbar spine and a 2% WPI arising from gastrointestinal symptoms consequent upon the long-term ingestion of non-steroidal anti-inflammatory medication; decision of MA Cameron affirmed.
Decision date: 26 October 2023 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Drew Dixon | Injury module: Digestive System and Spine
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; remittal from Supreme Court of NSW; psychological injury and assessment under the psychiatric impairment rating scale; appeal with respect to diagnosis of secondary psychological injury by the Medical Assessor (MA), deduction by the MA for pain in respect of social and recreational activities, social functioning, concentration, persistence and pace, and employability, and in the alternative, inadequate reasons provided by the MA in making such deduction; Medical Panel accepted the MA erred in providing diagnosis of secondary psychological injury; erred in making a deduction for pain in respect of social and recreational activities, social functioning, concentration, persistence and pace, and employability, and erred in failing to provide adequate reasons for making such deduction; Held – Medical Assessment Certificate revoked.
Decision date: 26 October 2023 | Panel Members: Member Jacqueline Snell, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
Appeal from assessment of whole person impairment (psychological); whether the assessor erred in assessing the rating scales, self-care and personal hygiene, social and recreational activities, concentration persistence and pace, or employability ; whether he erred in failing to make a deduction for the effects of pre-existing physical or mental conditions; whether he erred in failing to exclude the effects of physical injuries from assessment; Held – Medical Assessment Certificate confirmed.
Decision date: 26 October 2023 | Panel Members: Member Richard Perrignon. Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) for assessment of right upper extremity (shoulder), cervical spine and consequential condition in left upper extremity (shoulder); MA deducted 10/10ths in respect of assessment of 3% whole person impairment (WPI) for the left shoulder; MA erred in determining that the left shoulder was not a consequential condition; MA erred in deducting 10/10ths pursuant to section 323 after finding there was no pre-existing injury, condition or abnormality; Appeal Panel assessed 3% WPI for the left shoulder; Held – Medical Assessment Certificate revoked.
Decision date: 27 October 2023 | Panel Members: Member Carolyn Rimmer, Dr Alan Home, and Dr Roger Pillemer | Body system: Right Upper Extremity, Left Upper Extremity, and Spine
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to ratings of appellant’s impairment in psychiatric impairment rating scale categories of travel and employability; whether MA erred with respect to the diagnosis he made of the appellant’s injury; whether MA erred by not applying paragraph 1.32 of the Guidelines; whether MA erred by making a deduction under section 323(1); Appeal Panel held MA erred by not applying paragraph 1.32 of the Guidelines, but not with respect to the other matters; Held – Medical Assessment Certificate revoked.
Decision date: 30 October 2023 | Panel Members: Member Marshal Douglas, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
Medical Assessor (MA) assessed 7% whole person impairment (WPI) for the lumbar spine, 0% WPI for the left lower extremity and 3% WPI for scarring; Panel admitted MRI lumbar spine report and MRI lumbar spine images as fresh evidence; Panel found error as MA assessed worker as DRE II when he had undergone surgical decompression; Panel determined that the worker required re-examination; Panel assessed 15% WPI of lumbar spine; Held – Medical Assessment Certificate revoked.
Decision date: 31 October 2023 | Panel Members: Member Carolyn Rimmer, Dr David Crocker, and Dr Drew Dixon | Body system: Spine, Left Lower Extremity, and Scarring
Appeal from assessment of whole person impairment; whether examination for sensory loss in the median nerve was insufficient to support a negative finding; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 1 November 2023 | Panel Members: Member Richard Perrignon, Dr Mark Burns, and Dr Drew Dixon | Body system: Right Upper Extremity
Motor Accidents Merit Review Decision
Motor Accident Injuries Act 2017; dispute about amount of payment of weekly benefits payable under division 3.3; schedule 1, clause 4(1); meaning of pre-accident weekly earnings, earnings from self-employment and other employment; whether tax free employment benefits are earnings; compliance with directions; Held – the reviewable decision is set-aside.
Decision date: 2 November 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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