Legal Bulletin No. 31

Issued 1 October 2021

Welcome to the thirty-first 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.

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Court of Appeal Decision

Sleiman v Gadalla Pty Ltd[2021] NSWCA 236

WORKERS COMPENSATION - Medical assessment; appeal from Approved Medical Specialist to Appeal Panel; whether second appeal to Appeal Panel available on ground of deterioration; whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed; appeals; consideration of nature of appeals from Approved Medical Specialist to Appeal Panel; consideration of nature of appeals from Associate Judge to Court of Appeal.

Decision date: 30 September 2021 | Before: Gleeson JA, Leeming JA and Payne JA

Supreme Court Decisions

Enstar Australia Ltd t/as Gordian RunOff Ltd v Tuitupou [2021] NSWSC 1210

ADMINISTRATIVE LAW – Motor accident legislation; review of assessment of claim for damages; ground of review other than procedural fairness; procedural error; right to reasons; under statute; where statute required brief statement of reasons; whether adequate reasons for assessment of past and future economic loss; where five years of claimant’s income records in evidence; where insurer argued for averaging method; where income increased each year except one and likely to continue to increase; Assessor had regard to available evidence; Assessor engaged with insurer’s approach; Assessor correctly rejected approach as not sensible; Assessor provided clear reasons and reached an appropriate figure; Summons dismissed.

Decision date: 17 September 2021 | Before: Brereton JA

Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211

ADMINISTRATIVE LAW – Judicial review; workers compensation; whether decision of Medical Appeal Panel ought be set aside; adequacy of reasons for adopting and confirming erroneous reasons of the Approved Medical Specialist; deduction for “pre-existing condition” under section 323(1) Workplace Injury Management and Workers Compensation Act 1998; need for identification of relevant date; consent orders by parties under Rule 36.1A Uniform Civil Procedure Rules 2005; relief granted.

Decision date: 24 September 2021 | Before: Johnson J

Presidential Decisions

Gundelj v Brighton Australia Pty Limited [2021] NSWPICPD 28

WORKERS COMPENSATION – Prior deed of release entered into between the parties; later claim for further loss of hearing; construction of deed of release; Arbitrator’s construction of the deed unchallenged on the appeal; held the deed of release extended to the further loss of hearing injury.

Decision date: 17 September 2021 | Before: Acting Deputy President Geoffrey Parker SC

Miller v Secretary, Department of Communities and Justice (No 9) [2021] NSWPICPD 29

WORKERS COMPENSATION – Extension of time pursuant to Part 16.2 of the Workers Compensation Commission Rules 2011; application of estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589.

Decision date: 23 September 2021 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351

Claims assessment; claim referred to the Personal Injury Commission (Commission) more than 3 years after the motor accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted by the Commission; operation of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of ‘full and satisfactory explanation’ where the term is defined for the purposes of Part 6 of the MAI Actbut not Part 7;  comparison with provisions in the Motor Accidents Compensation Act 1999 (1999 Act); applicability of authorities addressing 1999 Act provisions relating to ‘full and satisfactory’ explanation; application for referral to the stood over list; Held - for the purposes of section 7.33 of the MAI Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list.

Decision date: 1 September 2021| Member: Brett Williams

Harris v NRMA Insurance [2021] NSWPIC 352

Application for assessment of common law damages; motorcycle accident on a motorway; Claimant motorcyclist applied his brakes heavily because an unidentified vehicle travelling in front of him suddenly braked; Claimant thrown off his motorcycle; no collision between motorcycle and unidentified vehicle; Nominal Defendant wholly denied liability; section 5B of the Civil Liability Act 2002; Mobbs v Kain, Sibley v Kais, Trompp v Liddle, Derrick v Cheung, Manley v Alexander and Mugford v Ames considered and applied; reliability of Claimant’s evidence; Onassis and Calogeropoulos v Vergottis and Watson v Foxman considered; entitlement to regulated costs where the Claimant is not entitled to damages; section 3.7 of the Motor Accidents Injuries Act 2017; Held – the driver of the unidentified motor vehicle owed a duty of care to the Claimant; the driver of the unidentified motor vehicle did not breach the duty of care owed to the Claimant; the Claimant is entitled to regulated costs despite failing to obtain an award of damages.

Decision date: 13 September 2021| Member: Anthony Scarcella

Toprak v IAG Limited trading as NRMA Insurance [2021] NSWPIC 365

Common law claim for damages; 61-year-old male injured as pedestrian in motor vehicle accident; serious pelvic fractures; fracture of the right fibula; injury to the right shoulder and lumbar spine; psychological injury; significant pre-existing lumbar spine condition, diabetes and psychological injury; damages assessed for non-economic loss; section 1.4 of the Motor Accident Injuries Act 2017 (MAI Act); whether non-economic loss should consider age of claimant; RACQ Insurance Ltd v Motor Accidents Authority of New South Wales and Reece v Reece discussed; not work for 18 years pre-accident; undertook work trial in week before accident; intention to return to work; assessed damages for past economic loss; nil damages for future economic loss; found impairment of earning capacity but not satisfied most likely future circumstances would have included paid employment; section 4.7 of the MAI Act; Held - damages assessed in favour of claimant for non-economic loss and past economic loss; costs assessed in favour of claimant.

Decision date: 22 September 2021| Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Compagnon v Demo Corp Pty Ltd [2021] NSWPIC 353

Claim for permanent impairment compensation, weekly compensation and medical expenses surrounding accepted lumbar spine injury; parties agree permanent impairment compensation to be paid in accordance with Medical Assessment Certificate dated 25 May 2021; weekly payments; parties cannot agree on applicant’s pre-injury earnings despite applicant producing taxation records showing relevant earnings; respondent did not produce any records as to applicant’s wages; preinjury earnings determined in accordance with amount claimed by applicant; capacity also in dispute; Held - applicant totally incapacitated for period claimed, save for a closed period of partial incapacity; respondent ordered to pay applicant weekly benefits and reasonably necessary medical expenses.

Decision date: 16 September 2021| Member: Cameron Burge

Mieth v Sydney Trains [2021] NSWPIC 354

Applicant claimed as a result of behaviour “broadly classified as bullying, harassment, intimidation and interpersonal conflict with his manager” he suffered an aggravation of a pre-existing psychological injury; no evidence such bullying or harassment occurred; substantial evidence from the respondent in support of this conclusion; misperception of events is a manifestation of his underlying and pre-existing psychological condition; State Transit Authority of New South Wales v Fritzi Chemler, Townsend v Commissioner of Police and Yeo v Western Sydney Area Health Service all considered; Held - award for the respondent.

Decision date: 16 September 2021| Member: Deborah Moore

Russo v Work Zone Pty Ltd [2021] NSWPIC 355

Worker seeks recission of orders in a medical Certificate of Determination (COD) on the basis of the reconsideration power in the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1988 Act); purpose of recission is to permit a second appeal to a Medical Appeal Panel (MAP) based on deterioration of his condition resulting in an increase in WPI (section 327(3)(a) of the 1998 Act); increased WPI attributable to consequential medical condition in contralateral upper extremity which developed after the issue of the COD; O’Callaghan v Energy World Corporation considered and applied; Held - as right upper extremity was not part of the medical dispute between the parties deterioration of the condition of that limb could not be the subject of an appeal; application for reconsideration dismissed on the ground of futility.

Decision date: 16 September 2021| Member: Paul Sweeney

Spennati v Ausgrid [2021] NSWPIC 356

Claim under section 66 of the Workers Compensation Act 1987 (1987 Act) for right knee injury; applicant stepped onto uneven ground when knee gave way; evidence of degenerative changes; section 9A test; whether employment/incident was a substantial contributing factor to injury; drawing inferences on common knowledge and ordinary human experience; consideration of E-Dry v Ker; Held - employment was a substantial contributing factor to the injury sustained in the course of employment.

Decision date: 16 September 2021| Member: Michael Perry

Brown v Shellbelt Pty Limited [2021] NSWPIC 357

Claim for costs of and incidental to reverse right total shoulder replacement surgery; work injuries to right hip previously determined in applicant’s favour by the Workers Compensation Commission; evidence of ongoing falls including three resulting in impact upon right shoulder; pre-existing symptomatic pathology at right shoulder; whether consequential right shoulder condition; whether proposed surgery reasonably necessary as a result of hip injuries; Held - Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; falls and impacts upon the right shoulder causing an increase in pathology and symptoms causally related to the hip injuries; most recent fall brought forward the need for surgery; award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

Decision date: 20 September 2021| Member: Rachel Homan

Jovanoski v Secretary, Department of Transport [2021] NSWPIC 358

Application for certification as to complexity pursuant to Item 4, Table 4, Part 2, Schedule 6 of the Workers Compensation Regulation 2016 (2016 Regulation); Held - proceedings subject to amended costs provisions; pursuant to section 341 of the Workplace Injury Management and Workers Compensation Act 1998 the Commission has no power to make a determination for the purposes of Item 4, Table 4, Part 2, Schedule 6 of the 2016 Regulation which would have the effect of increasing the maximum costs recoverable; application for certification declined.

Decision date: 20 September 2021| Member: Rachel Homan

Kingston v Kingston Landformers Pty Limited [2021] NSWPIC 359

Claim for permanent impairment compensation as a result of accepted injury to left shoulder and consequential condition of right dominant shoulder; poor outcome of left shoulder surgery; respondent disputed consequential condition of right shoulder; consideration of Kumar v Royal Comfort Bedding and Kooragang Cement Pty Ltd v Bates; Held - the applicant sustained a consequential condition of his right shoulder as a result of accepted injury to his left shoulder; matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to left upper extremity (left shoulder), right upper extremity (right shoulder) and TEMSKI scarring.

Decision date: 20 September 2021| Member: Kerry Haddock

Rainbird v Mountain Trail Engineering Pty Ltd [2021] NSWPIC 360

Claim for weekly benefits; whether the worker’s entitlement to weekly compensation was due to partial or total incapacity; Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – applicant had no current work capacity since 16 April 2021 and was entitled to receive payments pursuant to section 37(1) of the Workers Compensation Act 1987 from 16 April 2021 to date and continuing.

Decision date: 20 September 2021| Member: Carolyn Rimmer

Rogers v Woolworths Group Limited [2021] NSWPIC 361

Claim for weekly payments for psychological injury; section 11A defence; applicant invited to join respondent; claimed that terms of employment contract ignored by management, one of which was to be relocated closer to his home within months; respondent refused on basis that applicant to remain store manager for two years; applicant maintained terms of agreement reached with area manager; area manager denied such a conversation; medico-legal opinions on both sides favoured applicant’s version; Held – applying Fox v Percy, contemporary materials (the employment contract), objectively established facts and the apparent logic of events militated in favour of the applicant’s version of the contract; accordingly the history accepted by both medico-legal experts was proven and the respondent failed to establish that the applicant’s injury had been wholly or predominantly caused by its actions with regard to discipline or transfer, Hamad v Q Catering applied; award in favour of applicant; in the alternative, actions of the respondent not shown to be reasonable.

Decision date: 21 September 2021| Member: John Wynyard

Evans v Atura Hotels and Resorts Pty Limited [2021] NSWPIC 363

Worker trapped in a lift at work for 85 minutes; whether she suffered a diagnosable primary psychological injury within the meaning of sections 11A(3), 4(a) and 9A of the Workers Compensation Act 1987 (1987 Act); the reliability of clinical records; Davis v Council of the City of Wagga Wagga, King v Collins, Mastronardi v State of New South Wales, Mason v Demasi, Winter v NSW Police Force, NSW Police Force v Hahn, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates and Kirunda v State of New South Wales (No 4) considered and applied; Held - the applicant suffered a diagnosable primary psychological condition arising out of or in the course of her employment with the respondent within the meaning of sections 11A(3), 4(a) and 9A of the 1987 Act; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment under the Workplace Injury Management and Workers Compensation Act 1998.

Decision date: 22 September 2021| Member: Anthony Scarcella

Trajkovska v Lowes Manhattan Pty Limited [2021] NSWPIC 364

Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); accepted injuries to bilateral wrists and lumbar spine in fall whilst carrying a ladder; whether injury sustained to cervical spine and bilateral elbows (cubital tunnel) in same incident; delayed reporting and diagnosis of symptoms; minimal evidence of treatment of cervical symptoms; conflicting opinions from medicolegal experts; evidence of psychological overlay; Held -applicant sustained injury pursuant to sections 4 and 9A of the 1987 Act to cervical spine and elbows; matter remitted to President for referral to Medical Assessor to assess all claimed body parts.

Decision date: 22 September 2021| Member: Rachel Homan

Workers Compensation President’s Delegate Decision

Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2021] NSWPIC 362

Work capacity dispute; worker with high needs; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; focus on the nature of incapacity; unexplained change in certification; insufficient evidence to make an award from the date of deterioration; consideration of totality of medical evidence; Held - award for the applicant based on evidence of deterioration of symptoms certified in medical evidence.

Decision date: 21 September 2021| Delegate: Parnel McAdam

Workers Compensation Medical Appeal Panel Decisions

Waverley Council v Mooney [2021] NSWPICMP 171

Appeal from assessment of whole person impairment (left lower extremity - knee); whether Medical Assessor (MA) erred in assessing a ‘fair’ result from left total knee replacement surgery; whether MA erred in declining to make a deduction for pre-existing arthritis; Held - Medical Assessment Certificate confirmed.

Decision date: 17 September 2021 | Panel Members: Member Richard J Perrignon, Dr Margaret Gibson and Dr Roger Pillemer | Body system: Left lower extremity

Flynn v Paper Personnel Pty Ltd [2021] NSWPICMP 172

Medical Assessor (MA) asked to assess lumbar spine and left lower extremity (hip and knee); MA erred in failing to assess the left hip; appellant suffered a significant deterioration in his lumbar spine condition after the Medical Assessment Certificate (MAC) was issued and prior to the preliminary assessment; appellant had not reached maximum medical improvement; appellant re-examined on 6 September 2021; no challenge to knee assessment; Held - lumbar spine assessment increased but no impairment for the hip found; MAC revoked.

Decision date: 17 September 2021 | Panel Members: Member Deborah Moore, Dr David Crocker and Dr Drew Dixon | Body system: Lumbar spine and left lower extremity

Donald v Hastings Medical Centre Pty Ltd [2021] NSWPICMP 173

Allegation of demonstrable error in respect of a deduction of 1/10 pursuant to section 323 (2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) from an assessment of 15% WPI in respect of psychological injury; the appellant worker submitted that, although she had suffered previous psychological conditions, there was no evidence that these contributed to the impairment following the subject psychological injury; Held - the appellant’s independent medical expert had diagnosed the injury as an aggravation of a previous major depressive disorder as well as a new generalised anxiety disorder; the independent medical expert qualified by the respondent agreed there was a pre-existing condition of major depressive disorder; the notes of the general practitioner supported the existence of a psychological disorder prior to the subject injury which was likely to have contributed to the level of impairment assessed by the Medical Assessor; the extent of contribution was relatively minor and a deduction of 1/10 was not at odds with the evidence; the Medical Assessment Certificate was revoked to cure an error of rounding.

Decision date: 20 September 2021 | Panel Members: Member William Dalley, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

ACK v Secretary, Department of Communities and Justice [2021] NSWPICMP 174

Psychological injury; appellant alleged error in the assessment under four categories under the Permanent Impairment Rating Scale (PIRS) namely Self Care and Personal hygiene, Social Functioning, Concentration, Persistence and Pace, and Employability; Held - the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the Guidelines; Medical Assessment Certificate confirmed.

Decision date: 20 September 2021 | Panel Members: Member Jane Peacock, Dr Patrick Morris and Dr Michael Hong | Body system: Psychological/Psychiatric

Jarvis v State of New South Wales (Northern NSW Local Health District) [2021] NSWPICMP 175

Appeal by worker on the grounds that the Medical Assessor (MA) had made his assessment on the basis of incorrect criteria and that the Medical Assessment Certificate (MAC) contains a demonstrable error; the worker suffered injury to the lumbar spine and underwent surgery for acute caudal equina syndrome; she suffered neurologic impairment of the bladder, neurologic anorectal impairment, and neurologic sexual impairment; the appellant worker took issue with the assessment in respect of the bladder, bowel and sexual impairment, and with the manner of calculation of overall whole person impairment pursuant to the Combined Values Chart; issue was also taken with the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction from impairment assessed in respect of injury to the lumbar spine; finding the section 323 of the 1998 Act deduction in respect of assessment of WPI as a result of injury to the lumbar spine was correct; Held - finding that the assessments in respect of the bladder, bowel and sexual function were open to the MA and should be confirmed; finding of error in the calculation of total WPI; MAC revoked and new certificate issued.

Decision date: 20 September 2021 | Panel Members: Member Brett Batchelor, Dr Drew Dixon and Dr David Crocker | Body system: Lumbar Spine and urinary and reproductive systems

Lancaster v Foxtel Management Pty Ltd [2021] NSWPICMP 176

Consideration of psychiatric impairment rating scale categories; additional evidence application permitted to remedy factual matters; Held – Medical Assessment Certificate confirmed.

Decision date: 21 September 2021 | Panel Members: Member Elizabeth Beilby, Dr Julian Parmegiani and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

State of New South Wales (south Western Sydney Local Health District) v Plust [2021] NSWPICMP 177

Injury to lumbar spine; no complaint on appeal about DRE III assessment; complaint on appeal about Activities of Daily Living (ADLs) allowance and failure to make a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; complaint on appeal that 2% WPI allowed for restrictions on ADLs when there was a prior award of 1% WPI for ADLs in respect of the cervical spine in respect of a different injury; Held - the Medical Assessor (MA) erred; WorkCover Guides paragraph 4.36 applied by the Panel which provides that “for injuries to different spinal regions on different dates, where there is a worsening of ability to perform ADL after the second injury, additional impairment may be assessed”; in accordance with the guides additional 1% WPI allowable not 2%; the MA erred when he failed to make a section 323 of the 1998 Act deduction on the basis there was radiology showing pre-existing changes at the affected level; the available evidence supported the making of a 1/10 deduction for this pre-existing condition relating to the same level as the disc protrusion causing the diagnosed radiculopathy; Medical Assessment Certificate revoked.

Decision date: 21 September 2021 | Panel Members: Member Jane Peacock, Dr Brian Noll and Dr Phillipa Harvey-Sutton | Body system: Lumbar spine

Motor Accident Merit Review Decisions

Simolo v AAI Limited trading as GIO [2021] NSWPICMR 40

Merit Review;  dispute about recovery of costs and expenses in relation to claims for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act); whether the legal costs of application for medical assessment incurred by claimant are reasonable and necessary for the purposes of section 8.10 of the MAI Act; claimant failed to attend scheduled medical assessment; claimant withdrew application for medical assessment; whether entitled to recover legal costs regardless of whether medical dispute determined; whether legal costs incurred in preparing application for medical assessment reasonable and necessary; whether the application had reasonable prospects of success; Held – the reviewable decision is affirmed; the legal costs incurred by the claimant in relation to the medical dispute are not reasonable and necessary; the claimant is not entitled to recovery of costs.

Decision date: 22 June 2021 | Merit Reviewer: Tajan Baba

O'Connor v IAG Ltd t/as NRMA Insurance [2021] NSWPICMR 41

Merit Review; legal costs; legal costs for a medical dispute about whether proposed treatment of facet joint injections were reasonable and necessary; claimant’s solicitor argued that the medical review involved special skill and care based on his knowledge of specialised medical research and articles from his accredited specialist qualifications; solicitor’s approach in seeking a medical assessment based on arguments about medical literature shows a high degree of skill and knowledge from the solicitor and satisfies the requirement of exceptional circumstances; claimant sought order that insurer pay her costs on the basis that exceptional circumstances exist; section 8.10(4)(b) of the Motor Accidents Injuries Act 2017; insurer submitted exceptional circumstances did not exist; AAI Limited v Moon considered; Held- satisfied exceptional circumstances exist; specialised skill and knowledge of the solicitor; claimant entitled to recover $3,500 amount for legal costs.

Decision date: 9 July 2021 | Merit Reviewer: Ray Plibersek

Wu v AAI Limited t/as GIO [2021] NSWPICMR 42

Merit Review matter; legal costs relating to prior merit matter; Merit Reviewer determined not to award any legal costs; claimant commenced proceedings to recover costs in connection with prior merit matter; Held - Merit Reviewer had considered the claimant’s entitlement to recover legal costs from the insurer in connection with the merit matter; Merit Reviewer’s reasons disclose that he considered the question of legal costs and determined not to allow any legal costs; the claimant’s legal costs having been the subject of the Merit Reviewer’s decision, no power to re-visit the issue as a merit review matter as prescribed by Schedule 2 clause 1(aa) of the Motor Accident Injuries Act 2017 or any other provision in Schedule 2 clause 1; the proceedings are misconceived; proceedings dismissed in accordance with section 54(b) of the Personal Injury Commission Act 2020.

Decision date: 15 September 2021 | Merit Reviewer: Brett Williams

Motor Accident Merit Review Panel Decisions

Deering v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPICMRP 5

Merit Review Panel; whether claimant can recover weekly payments for time she took off work to attend treatment providers; merit review matter; dispute about whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13 of the Motor Accidents Injuries Act 2017 (MAI Act); minor injury dispute; statutory benefits; earner; loss of earnings; Held - Merit Reviewer’s decision set aside; claimant incurred a loss of earnings pursuant to Schedule 1 Clause 3 of the MAI Act; claimant entitled to weekly payments of statutory benefits to the extent that she suffered a loss of earnings when she attended treatment providers; section 6.13 of the MAI Act dispute is a miscellaneous claims assessment matter; minor injury dispute is a medical assessment matter; Merit Review Panel cannot determine section 6.13 of the MAI Act or minor injury disputes.

Decision date: 9 September 2021| Merit Review Panel: Brett Williams, Terence O’Riain and Michael Sofoulis

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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