Legal Bulletin No. 17
This bulletin was issued on 25 June 2021
Issued 25 June 2021
Welcome to the seventeenth 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
WORKERS COMPENSATION: leave to appeal an interlocutory decision; monetary threshold to appeal; assessment of permanent impairment; whether a Member can decline to refer a body part for assessment by a medical assessor.
Decision date: 16 June 2021| Before: Acting Deputy President Geoffrey Parker SC
Workers Compensation non-Presidential Member Decisions
Claim for weekly benefits and medical expenses following primary psychiatric injury in the course of employment due to interactions and interpersonal conflict in the workplace deemed to have occurred on 14 January 2020 and 4 May 2020; dispute as to incapacity with respondent submitting that the condition had resolved; Held- applicant totally incapacitated between 30 July 2020 and 31 January 2021; Respondent ordered to pay weekly benefits under section 37 of the 1987 Act from 30 July 2020 to 31 January 2021 and section 60 expenses.
Decision date: 9 June 2021| Member: Carolyn Rimmer
Psychological Injury; dispute under section 11A of the 1987 Act; whether the applicant’s undisputed psychological injury was wholly or predominantly caused by the reasonable action of the employer in relation to performance appraisal; employer bears onus of proof; evidence weighed in the balance; Held- not satisfied on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to performance appraisal; worker not precluded from the recovery of compensation by reason of section 11A; award for the worker.
Decision date: 10 June 2021| Member: Jane Peacock
Claim for proposed surgery for disputed left shoulder condition consequential to accepted right shoulder condition; fair climate for provision of opinion; Paric v John Holland (Constructions) Pty Ltd and Booth v Fourmeninapub Pty Ltd considered; material contribution test identified in Murphy v Allity Management Services Pty Ltd considered; reasonably necessary considered; Diab v NRMA Ltd, Rose v Health Commission (NSW) and Bartolo v Western Sydney Area Health Service considered; Held- found that the injury to the right shoulder made a material contribution to the condition of the left shoulder that now needs surgery; Respondent ordered to pay the costs of the proposed surgery.
Decision date: 10 June 2021| Member: Michael Wright
Dispute as to entitlement to weekly compensation in varying periods relating to agreed lumbar injury on 22 August 2017; main issue involved application of section 32A of the 1987 Act in relation to the definition of suitable employment; Held- Award for applicant, which varied due to differing work capacity in particular periods.
Decision date: 11 June 2021 | Principal Member: Josephine Bamber
Psychological injury; claim for closed period of weekly benefits; whether applicant suffered workplace injury (section 4 of the1987 Act); if so, whether injury was predominantly caused by the reasonable actions of the respondent in relation to discipline and/ or dismissal (section 11A of the 1987 Act); Held- Applicant suffered a workplace injury; Anderson Meat Packing Co Pty Ltd v Giacomantonio noted; the absence of corroboration of a psychological injury by way of complaint to a treating practitioner is not determinative of the presence of such an injury; Baker v Southern Metropolitan Cemeteries Trust followed; there is no requirement for corroboration in a civil case; Chanaa v Zarour noted; it is not necessary for a person to identify themselves as psychologically ill to find a psychological injury; Patrech v State of New South Wales followed; the respondent’s actions relied upon to ground a section 11A defence were not the predominant cause of the applicant’s injury; Hamad v Q Catering Ltd noted; Smith v Roads and Traffic Authority New South Wales discussed; in any event, the respondent’s actions relied upon were not reasonable in the circumstances of the case; Irwin v Director General of Education, Ivanisevic v Laudet Pty Ltd, Commissioner of Police v Minahan and Ritchie v Department of Community Services followed; there being no issue as to capacity or preinjury earnings, the respondent is ordered to pay the applicant weekly compensation for the period claimed.
Decision date: 11 June 2021 | Member: Cameron Burge
Death claim; written submissions filed by parties; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held-determination of dependency; apportionment of death benefit amongst dependants.
Decision date: 15 June 2021 | Senior Member: Glenn Capel
Claim pursuant to section 60 of the 1987 Act for the cost of two proposed nucleoplasty surgical procedures at L4/5 and L5/S1; “reasonably necessary” in dispute; Rose v Health Commission (NSW) and Diab v NRMA Ltd considered; Held- proposed surgical procedures are reasonably necessary.
Decision date: 16 June 2021 | Member: Michael Wright
Accepted injury to the left lower extremity; prior proceedings for weekly benefits compensation and medical and treatment related expenses did not dispute alleged consequential condition of the lumbar spine as a result of the accepted injury and resulted in an ongoing award of weekly benefits; whether the respondent was estopped from disputing the said consequential condition in subsequent proceedings for permanent impairment compensation; res judicata estoppel, issue estoppel and Anshun estoppel discussed and considered; Habib v Radio 2UE Sydney Pty Limited, Blair v Curran, Hoystead v Commission of Taxation; Pond v WorkCover/Allianz Australia (Wunda Joinery) and Port of Melbourne Authority v Anshun Pty Limited considered and applied; Held- the respondent estopped from disputing the consequential condition of the applicant’s lumbar spine as a result of the accepted injury to his left foot, left ankle and left heel in the course of his employment with the respondent; the matter remitted to the President for referral to a Medical Assessor for permanent impairment assessment under the 1998 Act (left lower extremity and lumbar spine).
Decision date: 16 June 2021| Member: Anthony Scarcella
Whole person impairment claim; injury to lumbar spine admitted; alleged injury to thoracic spine disputed; Held- applicant suffered injury to both thoracic and lumbar spine; a worker can rely on injury simpliciter despite the presence of an underlying disease; Zickar v MGH Plastic Industries referred to; Accident Compensation Commission v McIntosh followed; the contemporaneous radiological evidence in this matter overwhelmingly establishes pathological change to the applicant’s thoracic spine, as does the clinical history of complaint of pain and symptoms to his general practitioner in the immediate aftermath of the workplace injury; matter remitted to the President for referral to a Medical Assessor to determine the whole person impairment arising from the injury to the thoracic and lumbar spines.
Decision date: 16 June 2021| Member: Cameron Burge
Workers Compensation Medical Appeal Panel Decisions
Claim for lump-sum compensation in respect of injury to the lumbar spine and left lower extremity (knee) referred for assessment; without appearing to decide whether injury to the lumbar spine had occurred AMS assessed all lumbar impairment as arising from subsequent degenerative changes with 0% resulting from injury; the AMS assessed the knee without considering the effects of surgery upon the ACL; Held- failure to provide adequate reasons for concluding that no impairment flowed from the admitted lumbar spine injury was demonstrated; assessment of left knee did not appear to consider effects of surgery and was not in accordance with the Guidelines and Table 17-33 of AMA5; MAC revoked.
Decision date: 9 June 2021 | Panel Members: Member William Dalley, Dr John Brian Stephenson and Dr Ross Mellick | Body system: Lumbar spine and left lower extremity
Appeal against findings in MAC on the grounds of the assessment being made on the basis of incorrect criteria and that the MAC contains a demonstrable error; the Medical Assessor (formerly AMS) deducted 100% of the assessment made by him on the basis that the appellant’s pre-existing but asymptomatic helicobacter pylori infection was solely responsible for the upper gastrointestinal tract symptoms and not the ingestion of Voltaren which the appellant was prescribed and which he took, and continues to take, to alleviate back pain from a work caused injury; Held- finding the Medical Assessor was in error in deducting 100% of the WPI assessed by him in respect of the upper gastrointestinal tract symptoms experienced by the appellant, and the continued taking of Voltaren contributed to the upper digestive tract symptoms; this was the cause of the symptoms complained of; finding that the deduction should be 50% pursuant to section 323(2) of the 1998 Act; finding the lower gastrointestinal tract symptoms resulting from irritable bowel syndrome had been correctly assessed by the Medical Assessor pursuant to Item 16.9, Chapter 18, page 78 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 April 2016 at 0% WPI; MAC issued by the Medical Assessor revoked and new MAC issued.
Decision date: 10 June 2021| Panel Members: Member Brett Batchelor, Dr John Dixon-Hughes and Dr Richard Crane| Body system: Upper digestive system and lower digestive system
The worker suffered accepted injury described as Myalgic Encephalomyelitis/Chronic Fatigue Syndrome with persisting Fibromyalgia deemed to have occurred in 1996; the AMS assessed 0% impairment; Held- the AMS applied an incorrect test of injury which had been accepted by the parties; Jaffarie v Quality Castings Pty Ltd (No 2) applied and erred when stating that there were no other medical opinions on the issue of loss; the AMS also failed to consider the loss of efficient use consistent with the principles in Department of Public Works v Morrow and arguably assessed the loss based on whole person impairment rather than on the table of disabilities; on reassessment, the Appeal Panel rejected the appellant’s submission that it was bound by the arbitrator’s findings with respect to medical expenses; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; the Appeal Panel rejected portions of the appellant’s case that photophobia, scotopic sensitivity, floaters, myopia and loss of visual acuity were causally related to injury; there was a lack of scientific evidence supporting the causal link and the expert view of the Appeal Panel was that these conditions were more likely due to congenital factors; the Appeal Panel was satisfied that the injury caused dry eyes because of the effect to the lacrimal gland production of tears; the Appeal Panel accepted, applying the broader test of loss of efficient use as set out in Morrow, that migraines and headaches would restrict the efficient use of the eyes; regard had to the intermittent and temporary loss of efficient use caused by those symptoms as well as the effect caused by dry eyes; MAC revoked and worker assessed at 7.5% loss of efficient use of both eyes.
Decision date: 15 June 2021 | Panel Members: Principal Member John Harris, Dr Harry Stern and Dr Ian Wechsler| Body system: Eyes
Worker suffering undisputed psychological injury appeals against the classification of a Medical Assessor in the PIRS categories of social and recreational activities, travel and concentration, persistence and pace leading to an assessment of 7% WPI; Ballas v Department of Education (State of NSW) considered and applied; Held- Medical Assessor erred in conflating social and recreational activities with separate category of social functioning; on reassessment panel determines 15% WPI; MAC revoked.
Decision date: 16 June 2021| Panel Members: Member Paul Sweeney, Dr Douglas Andrews and Dr Patrick Morris| Body system: Psychological/ psychiatric disorder
AMS made an assessment of 7% WPI as a result of a psychiatric injury deemed to have occurred on 28 August 2017; statement of the appellant dated 10 March 2021 not received on the appeal as not probative; whether error demonstrated in respect of PIRS categories social and recreational activities and social functioning; Held- no error demonstrated; MAC confirmed.
Decision date: 16 June 2021| Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Patrick Morris| Body system: Psychological/ psychiatric disorder
Merit Review Decision
Merit review; whether legal costs incurred by the claimant are reasonable and necessary under section 8.10 of the Motor Accident Injuries Act 2017; costs incurred to obtain clinical records; legal costs and disbursements; minor injury dispute; minor injury dispute resolved prior to any assessor intervention; maximum is payable if it reflects the reasonable and necessary legal costs incurred; determined the claimant is entitled to recover the maximum allowed; submissions lodged in the medical matter were comprehensive; Held- reasonable and necessary for the claimant’s lawyers to obtain clinical records; records were relevant to the resolution of the medical matter; costs were reasonable and necessary; not entitled to legal costs in connection with the costs dispute.
Decision date: 10 June 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 way the information is used.
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