Legal Bulletin No. 13

Issued 28 May 2021

Welcome to the thirteenth 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.

Appeal Case Summaries

Please click here to access the latest Appeal Case Summaries

Supreme Court Decision

QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588

Administrative law; whether reviewable error of law; error of law on the face of the record; decision of a claims assessor; Traffic law and transport; traffic law; motor accident legislation; application of section 3.37 Motor Accident Injuries Act 2017.

Decision date: 25 May 2021 | Before: Cavanagh J

Civil and Administrative Tribunal of New South Wales Decision

Commins v President, Personal Injury Commission of NSW [2021] NSWCATAD 138

Practice and Procedure; application for review of assessment of motor accident claim; whether Tribunal has jurisdiction; summary dismissal.

Decision date: 26 May 2021 | Before: L Pearson, Principal Member

Workers Compensation non-Presidential Member Decisions

Doherty v Secretary, Department of Education [2021] NSWPIC 118

Psychological injury; claim for weekly payments and section 60 expenses; respondent accepted applicant had a psychological disorder to which his employment was the main contributing factor; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or performance appraisal; whether applicant had capacity for employment; Held- finding that some action was with respect to discipline and or performance appraisal; disciplinary action six years earlier and subsequent to date of injury was not relevantly part of the process; lack of evidence of notice to the applicant and matters to be discussed at meetings; evidence unclear as to process; finding that respondent had not discharged its onus to establish that its relevant action was reasonable; applicant had no current capacity as claimed; award for the applicant.

Decision date: 14 May 2021| Member: Jill Toohey

Hopping v E.M Utick Pty Limited [2021] NSWPIC 119

An application for an order pursuant to section 60(5) of the 1987 Act that the respondent pay for total left knee replacement surgery and related expenses as recommended by the treating specialist, Dr Glase, as a result of injury to the left knee on 28 November 2019; the section 78 notices attached to the ARD noted that liability was accepted for the left knee injury of 28 November 2019, but disputed that the claimed treatment was reasonably necessary as a result of the injury of 28 November 2019; there was an earlier injury to the applicant’s right knee in the course of his employment with the respondent in 2013 with a consequential injury to the left knee in 2016; both the 2013 right knee injury and the consequential 2016 left knee injury or condition were the subject of a deed of release; Held- principles and authorities identified in the now abolished Workers Compensation Commission decision of Murphy v Allity Management still relevant and applicable; found that the injury of 28 November 2019 materially contributed to the need for the proposed surgery; award for the applicant.

Decision date: 14 May 2021| Member: Michael Wright

McEwen v Direct Freight (Aust) Pty Ltd [2021] NSWPIC 120

Claim for weekly benefits and section 60 expenses including the cost of shoulder surgery; respondent disputes work capacity from the date to which weekly payments were made by the respondent’s insurer based on the opinion of its independent medical examiner; Held- finding that the applicant suffered injury to the cervical spine, right upper extremity (shoulder) and right upper extremity (aggravation of carpal tunnel syndrome) on the claimed date of injury; finding that the applicant had no current work capacity from the date from weekly payments are claimed; finding that the surgery to the right shoulder proposed by the treating orthopaedic surgeon is reasonably necessary as a result of injury to the right shoulder; respondent ordered to pay weekly benefits to the applicant pursuant to section 37 of the 1987 Act from the date from such benefits are claimed and section 60 expenses including the cost of and incidental to the surgery to the right shoulder.

Decision date: 14 May 2021| Member: Brett Batchelor

Oberg v Racing NSW [2021] NSWPIC 121

Jurisdiction of Personal Injury Commission to hear and determine section 53 application during second entitlement period; Speirs v Industrial Relations Commission of NSW & Anor considered and applied; power to amend claim after Medical Assessor opines that incapacity unlikely to be of a permanent nature; Held- award for worker limited to the date she ceased to reside in Australia; respondents failure to produce relevant documents pursuant to a Notice to Produce referred to President.

Decision date: 17 May 2021| Member: Paul Sweeney

Zgouras v Australian Associated Motor Insurers Ltd [2021] NSWPIC 122

Section 4 injury, lack of early contemporaneous complaint not established; consideration of onset of symptomatology not adopted in statement form; Held- award for the applicant to lumbar spine, thoracic injury not proved to requisite level.

Decision date: 18 May 2021| Member: Elizabeth Beilby

Setrakian v Michael Hill Jeweller Pty Ltd [2021] NSWPIC 123

Injury to right knee in a fall at work; injury not disputed; injury consisted in the aggravation, acceleration, exacerbation or deterioration of underlying disease to which employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration; total knee replacement surgery was performed; it was not disputed that surgery was reasonably necessary; it was disputed that surgery was reasonably necessary as a result of the injury; evidence weighed in the balance; Held- on the balance of probabilities the surgery resulted from the injury; award for the worker.

Decision date: 18 May 2021| Member: Jane Peacock

Thomas v Holcim (Australia) Pty Ltd [2021] NSWPIC 124

Claim for hearing aids; previous claim paid in 2010 and 2016;  further claim made in 2020 for replacement hearing aids when worker in the employ of another noisy employer; no notice of injury given to current noisy employer; dispute regarding last noisy employment; Bluescope Steel (AIS) Pty Ltd v Sekulovski, Sukkar v Adonis Electrics Pty Ltd, Dawson t/as The Real Cane Syndicate v Dawson, Blayney Shire Council v Lobley, Hay v Commonwealth Steel Company Pty Ltd and Fischer v Endeavour Energy & others discussed; Held- leave granted to respondent; respondent last noisy employer for purposes of section 17(1)(a)(i) of the 1987 Act; award for the worker in respect of the claim for medical expenses.

Decision date: 18 May 2021| Senior Member: Glenn Capel

Elasket v Elasket Pty Ltd [2021] NSWPIC 125

Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act as a result of  fractured skull and brain injury suffered in a fall from a roof, undisputed by the respondent employer, and injury to the left upper extremity (shoulder), disputed by the respondent, suffered in that fall; the respondent submitted that the left shoulder injury claimed by the applicant was the revelation of an earlier injury to the shoulder and not the result of the fall; examination of pre and post-injury medical evidence; Held- finding that the applicant’s claim of injury to the left shoulder on the date of the fall made out; referral of the matter to Medical Assessors for assessment of WPI as a result of brain injury and fractured skull, and injury to the left upper extremity (shoulder), on the day of the fall.

Decision date: 19 May 2021| Member: Brett Batchelor

Prasad v Airocle – IVR Group Ltd [2021] NSWPIC 126

Claim for section 60 expenses for proposed cervical spine surgery based on alleged personal injury to the applicant’s left shoulder and cervical spine at the same time his left hand was caught in a circular saw machine (the incident) resulting in undisputed significant injuries to that hand requiring multiple surgeries; significant delay reporting of left shoulder/cervical injuries; whether underlying degenerative pathology and cervical spine was aggravated by the incident; Held- finding of injury with respect to the left shoulder and cervical spine; finding proposed surgery reasonably necessary as a result of injury.

Decision date: 19 May 2021| Member: Michael Perry

Workers Compensation Medical Appeal Panel Decisions

Onesteel Trading Pty Ltd v Miller [2021] NSWPICMP 70

Injury to cervical spine and left upper extremity (shoulder); in respect of the cervical spine assessment, the appellant employer appealed in respect of the allowance of 2% whole person impairment (WPI) for activities of daily living (ADLs); Held- the Panel found there was no error in this assessment; in respect of the left upper extremity, the Medical Assessor (MA) used an incorrect figure for excision of the distal clavicle and the Panel corrected this assessment; however the MA correctly combined arthroplasty with restricted range of movement; MAC revoked.

Decision date: 14 May 2021| Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr James Bodel| Body system: Cervical spine and left upper extremity

Hartando v Vodafone Hutchinson Australia Pty Limited [2021] NSWPICMP 71

Appeal against finding of 11% WPI for psychological claim; failure to give adequate reasons asserted; further error alleged in two PIRS categories; section 323 deduction challenged; Held- submissions unsupported by evidence of no weight; inference that Medical Assessor (MA) did not consider evidence speculative; presumption of regularity referred to; Jones v The Registrar of the Workers Compensation Commission applied; MA’s reservations as to credit open to him on the evidence; PIRS submissions no more than difference of opinion; Ferguson v State of New South Wales applied; diagnosable pre-existing borderline personality properly considered and 1/10th deduction; Fire & Rescue NSW v Clinen considered; MAC confirmed.

Decision date: 14 May 2021| Panel Members: Member John Wynyard, Dr Doug Andrews and Dr Patrick Morris| Body system: Psychological/ psychiatric disorder

The CEO Group Australia Pty Ltd v Ceonradi [2021] NSWPICMP 72

Psychological injury; respondent appealed in respect of the extent of the deduction under section 323; Medical Assessor (MA) found significant pre-existing conditions, but the MA made a deduction of one-tenth on the basis that the extent of the deduction for pre-existing conditions would be too difficult to calculate; Held- the Panel was satisfied as to error as there was a significant amount of evidence before the MA and obtained by him on examination demonstrating that a one tenth deduction for the contribution of the pre-existing conditions to the current whole person impairment (WPI) was inadequate and at odds with the available evidence; the Permanent Impairment Guidelines, 4^th edition, at paragraph 11.10 state that a suitable method is to estimate the pre-existing impairment and deduct this from the current WPI; the Panel calculated the pre-existing impairment in accordance with Paragraph 11.10 and deducted the pre-existing impairment from the overall level of WPI; MAC revoked.

Decision date: 19 May 2021| Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Patrick Morris| Body system: Psychological/ psychiatric disorder

Thompson v Campbelltown Catholic Club [2021] NSWPICMP 73

Two applications for appeal against separate Medical Assessment Certificates (MAC), relating to the same set of proceedings; Panel declined to receive fresh evidence on the basis it was not evidence of such probative value that it was reasonably clear it would change the outcome of the case; Held- in the first appeal the Panel confirmed the assessment by the AMS and agreed that gait derangement was not an appropriate method of assessing the lower extremities; in the second appeal relating to a psychiatric injury, the Panel satisfied that the AMS excluded the effects of physical impairment in his assessment; the Panel found no error and no incorrect application of the relevant assessment criteria in assessment of self-care and hygiene and social and recreational activities; MACs confirmed.

Decision date: 19 May 2021| Panel Members: Member Carolyn Rimmer, Dr Brian Noll and Dr Patrick Morris| Body system: Right lower extremity, left lower extremity and psychological/ psychiatric disorder

Gagnuss v Mikcon Group Australia Pty Ltd [2021] NSWPICMP 74

Appeal against finding of 9% WPI for injury to left knee and scarring; error alleged in not following 3% assessment by medico-legal expert; failure to apply TEMSKI properly alleged; error further alleged by failure to use a particular method of assessment (gait derangement); further error in not taking highest alternative calculation available; Held- 2% for scarring the highest assessment available under TEMSKI, as common ground that scar was not adhesive; Gait derangement excluded by Chapter 10.3 of the Guides; Medical Assessor erred in that highest alternative not taken; conceded by respondent: MAC revoked and 10% WPI certified.

Decision date: 19 May 2021| Panel Members: Member John Wynyard, Dr James Bodel and Dr Mark Burns| Body system: Left lower extremity and scarring (TEMSKI)

Blacktown City Council v Kennedy [2021] NSWPICMP 75

Appellant submitted that a section 323 deduction should have been made on the basis of both a pre-existing condition and surveillance material; Held- there was no evidence to suggest any pre-existing symptomatic disorder; the features depicted by the imaging studies are commonly found in people of the respondent’s group and are not necessarily associated with any symptomatic disorder or any functional limitations; there was no evidence that the surveillance material included images indicating that the respondent exceeded the MA’s recorded range of movement; MAC confirmed.

Decision date: 19 May 2021| Panel Members: Member Deborah Moore, Dr James Bodel and Dr Brian Noll| Body system: Right upper extremity and left upper extremity

Merit Review Decisions

AAR v Allianz Australia Ltd [2021] NSWPICMR 7

Merit review; determination of pre-accident weekly earnings; carpenter and joiner by trade; employed on a casual basis; been overseas and had worked some cash jobs; correct and preferable method for calculating PAWE; earner at the date of accident, but not earning continuously; Held- set aside the reviewable decision and make a decision in substitution; PAWE is $540.59.

Decision date: 7 May 2021| Merit Reviewer: Terence O’Riain

Rafraf v AAI Limited t/as AAMI [2021] NSWPICMR 8

Merit review; whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017 costs and expenses are reasonable and necessary; physical and psychological injuries; legal costs; minor injury dispute; insurer declined to pay costs on medical assessment; Held- decision set aside; application not without merit; reasonable and necessary costs.

Decision date: 18 May 2021| Merit Reviewer: Brett Williams

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 the way the information is used.

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