Legal Bulletin No. 22

Issued 30 July 2021

Welcome to the twenty-second 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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Supreme Court Decision

QBE Insurance (Australia) Ltd v Griffin [2021] NSWSC 906

INSURANCE; claims; whether lawful reasons were adequately provided for claims assessor’s determination; whether jurisdiction for claims assessment was properly exercised; INSURANCE; claims; proof; discount for vicissitudes; TORTS; general principles; damages; where discount for viscissitudes in issue..

Decision date: 26 July 2021| Before: Schmidt AJ

Motor Accidents non-Presidential Member Decisions

ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246

Miscellaneous Claims Assessment; whether the insurer is entitled to refuse to pay the claimant statutory benefits beyond 26 weeks further to section 3.11 of the Motor Accident Injuries Act 2017 (2017 Act); Claimant alleged motor accident caused by bent sign; Insurer determined claimant was wholly at fault for the motor accident; claimant requested an internal review of the decision; insurer affirmed original decision; Claimant submits photographs and factual investigation report are of little probative value as they were taken of the replacement sign and not the original; insurer submits the claimant failed to keep a proper lookout and proceeded on the roadway when it was unsafe to do so colliding with the sign; Held- not satisfied that the insurer has discharged its burden in respect of its decision under section 3.11 of the 2017 Act; therefore insurer cannot refuse to pay the claimant’s statutory benefits; Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017.

Decision date: 12 July 2021| Member: Bridie Nolan

Kriske v QBE (Insurance) Australia Limited [2021] NSWPIC 247

Miscellaneous Claims Assessment; whether the claimant was wholly or mostly at fault for the motor accident for the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (2017 Act); whether the motor accident was a no-fault accident for the purpose of Part 5 of the 2017 Act; claimant injured when riding her motorcycle; insurer declined liability for payment of statutory benefits beyond first 26 weeks on the basis claimant wholly at fault and not a blameless accident; internal review confirmed original decision; claimant submits there was a slippery substance on the road causing the bike to slip; tibial plateau fracture; surgeon inserted plates and screws into lower leg; insurer disputes the existence of slippery substance; Held- claimant has not discharged onus on her demonstrating involvement of a slippery substance on the roadway in the accident; satisfied in the circumstances the accident was wholly the claimant’s fault; not a no-fault accident; claimant entitled to legal costs.

Decision date: 16 July 2021 | Member: Terence O’Riain

Workers Compensation non-Presidential Member Decisions

Achille v Unilever Australia Limited [2021] NSWPIC 248

The applicant claimed to have sustained injury to her right shoulder as a result of the nature and conditions of employment as a machine operator; the injuries were claimed to be adhesive capsulitis and rotator cuff tear; the injuries were disputed by the respondent; claim for weekly benefits and medical expenses, including the cost of right shoulder rotator cuff repair with acromioplasty and associated costs; dispute as to whether the respondent had continued to pay weekly benefits in error after dispute notice issued; parties agreed that issues of injury and reasonable necessity of medical treatment be determined; and matter listed for telephone conference if issue of injury determined in applicant’s favour; Diab v NRMA Ltd considered; Held- the applicant sustained injury, being adhesive capsulitis and right rotator cuff tear as a result of nature and conditions of employment; the proposed surgery is reasonably necessary medical treatment as a result of injury; the matter is to be listed for telephone conference in respect of the claim for weekly benefits.

Decision date: 15 July 2021| Member: Kerry Haddock

Douglas v Secretary, Department of Planning, Industry and Environment [2021] NSWPIC 249

Claim for weekly compensation for incapacity caused by a thoracolumbar disc lesion allegedly resulting from an accepted work injury; where worker suffered back symptoms following a motor vehicle accident before the work injury; where worker suffered back symptoms following a fall after the work injury; where worker’s account of the progression of his symptoms held not to be reliable; Held- finding that the worker had not proven that his incapacity resulted from the work injury; award for the respondent.

Decision date: 16 July 2021 | Member: Paul Sweeney

Viera v Wideform Pty Limited [2021] NSWPIC 250

Applicant worked for respondent doing heavy work for almost 20 years; sustained injuries to his neck and both shoulders on several occasions for which he claimed lump sum compensation on the basis of a disease injury; with a deemed date of 3 June 2019; Respondent accepted liability for three separate injuries with three separate claim numbers in 2014, 2016 and 2017; Held- applicant sustained injuries to both upper extremities (shoulders) and the cervical spine as a result of the nature and conditions of his employment with the respondent from about 2000 to October 2019 (including events on 25 July 2014, 10 February 2016 and 22 September 2017) with the deemed date of injury being 3 June 2019; the applicant’s employment was the main contributing factor to his injuries; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 16 July 2021 | Member: Deborah Moore

Simoes v De Martin & Gasparini [2021] NSWPIC 252

Claim for medical expenses; whether proposed surgery reasonably necessary as a result of accepted injury; whether travel costs to general practitioner and a gym membership are reasonably necessary medical expenses; Held- the proposed surgery is reasonably necessary as a result of the workplace injury; Kooragang Cement Pty Ltd v Bates and Diab v NRMA Ltd followed; the respondent is to pay the applicant’s travel costs for visits to his nominated treating doctor; the respondent is to pay the past costs of the applicant’s gym membership.

Decision date: 19 July 2021 | Member: Cameron Burge

Storum v Kenneth Craig Allen [2021] NSWPIC 253

Claim for declaration pursuant to section 60(5) of the 1987 act for urological surgery; causation issue; Applicant’s treating urological surgeon regards bladder issues to be recurrence of earlier pathology caused by nerve damage in motor vehicle accident; contrary urological opinion; Held- treating surgeon’s opinion preferred for reasons including access to cystoscopy report.

Decision date: 19 July 2021| Member: Philip Young

Empire Contracting Pty Ltd ATF Empire Contracting Trust v Gov [2021] NSWPIC 254

Death benefit claim; apportionment of the death benefit between nine alleged dependants in Australia and overseas; interest; Held- order for apportionment made.

Decision date: 20 July 2021 | Member: Catherine McDonald

Kurido v Dulux Group (Australia) Pty Ltd [2021] NSWPIC 255

Claim for weekly benefits and section 60 expenses resulting from primary psychological injury; injury admitted by respondent employer, but section 11A defence relied upon for reasonable action taken or proposed to be taken with respect to discipline and transfer; applicant worker did not become incapacitated for work until after alleged disciplinary action; worker relies upon Hamad v Q Catering Ltd to submit that no medical evidence to support action with respect to transfer, and Hancock v East Coast Timber Products Pty Ltd to submit that Independent Medical Expert report relied upon by respondent an ipse dixit; detailed examination of evidence; Held-finding that respondent had not discharged the onus on it to rely on section 11A defence, and that applicant’s injury resulted from the conduct of the respondent’s employees to which he was subjected during the course of his employment; awards in favour of applicant for weekly benefits and section 60 expenses; award in favour of respondent in respect of minor ankle injury found to have resolved.

Decision date: 20 July 2021| Member: Brett Batchelor

Gibson v Austcorp Executive Pty Ltd [2021] NSWPIC 256

Claim for proposed total knee replacement surgery; whether the requirement for the medically necessary surgery was brought about by an accepted injury by way of aggravation of underlying left knee osteoarthritis, or whether the effects of the aggravation have passed; Held- the applicant had been actively engaged in heavy physical work for many years before the injury at work in November 2019; although the applicant had complained of some left knee symptoms three times in the 12 years leading up to the injury, he was able to persist in his physically demanding employment until the injury at issue; the applicant’s post-injury symptoms had never settled and have worsened over time; the injury at issue rendered a previously functional left knee dysfunctional, and it is that dysfunction which has brought about the requirement for surgery; there is no issue the proposed surgery is medically necessary; the proposed surgery is reasonably necessary as a result of the workplace injury; the argument the effects of the aggravation had passed is one commonly presented before the Commission, however, absent an explanation as to why the aggravation has passed in the specific circumstances of any given case, it is a difficult argument to accept, particularly when, as with this case, the applicant’s symptoms at no point lessened after the injury; the respondent is to pay the costs of and incidental to the proposed left total knee replacement surgery.

Decision date: 21 July 2021 | Member: Cameron Burge

Grigor v Inghams Enterprises Pty Ltd [2021] NSWPIC 257

Applicant claimed weekly benefits and permanent impairment compensation as a result of injury to his lumbar spine; applicant brought previous proceedings in which it was determined that he had sustained injury to his lumbar spine in the employ of the respondent; in those proceedings, he discontinued the claim for the cost of surgery to his lumbar spine and sought weekly benefits and a general order for medical expenses pursuant to section 60 of the 1987 Act; he was not awarded weekly benefits due to the operation of section 32A of the 1987 Act; and a general order for medical expenses was made; respondent appealed against the decision of the arbitrator; Presidential Member determined that the thresholds in section 352(3) of the 1998 Act had not been met and there was no right of appeal; applicant brought proceedings for the cost of surgery to his lumbar spine, which were resolved by consent; respondent sought leave to request a reconsideration of the arbitrator’s decision; applicant opposed the granting of leave and the application for reconsideration; applicant directed to lodge written submissions on the application of section 289A (4) of the 1998 Act and reconsideration application and matter to be listed for telephone conference after determination of those matters; Matues v Zodune Pty Limited t/as Tempo Cleaning Services and Samuel v Sebel Furniture Limited considered; Held- leave granted to the respondent pursuant to section 289A (4) of the 1998 Act to request reconsideration of arbitrator’s decision; reconsideration application refused; matter to be listed for telephone conference for directions as to future conduct.

Decision date: 21 July 2021 | Member: Kerry Haddock

Workers Compensation President’s Delegate Decision

Hatton v Holcim (Australia) Holdings Pty Limited [2021] NSWPIC 245

Industrial deafness; section 60 costs sought for bilateral digital hearing aids; whether the applicant is barred for failing to give notice under sections 254 or 261 of the 1998 Act; Held- applicant prevented from recovering compensation due to the operation of subsection 261(1); claim not made within six months after the injury or accident happened; no evidence to support the applicant fell within an exception to the requirement to bring a claim within the required period; no evidence to support the injury received by the worker had been entered into a register of injuries kept by the respondent; award for the respondent on the claim for medical expenses.

Decision date: 6 July 2021| President’s Delegate: Belinda Gamble

Workers Compensation Medical Appeal Panel Decisions

Evangelista v Coles Supermarkets Australia Pty Ltd [2021] NSWPICMP 124

Worker suffering primary psychological injury appealed against the classification of the Medical Assessor in the PIRS categories of concentration, persistence and pace and self-care and personal hygiene; Held – no error demonstrated; MAC confirmed.

Decision date: 15 July 2021 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological/ psychiatric disorder

Lane v F T Tudor Pty Ltd [2021] NSWPICMP 125

The appellant worker suffered an injury to his right ankle and a consequential condition in the left ankle with a medical dispute as to the extent of impairment for the purposes of section 39 of the 1987 Act; MAC issued assessing 7% WPI in respect of the right lower extremity (ankle) but noting that the left ankle had not reached maximum medical improvement; the Medical Assessor assessed the appellant on the basis of a single subtalar fusion although the undisputed evidence established that there had been a triple arthrodesis; Held- the Medical Assessor had not assessed the appellant in accordance with the guidelines and demonstrable error was established; assessment of overall impairment was declined by the Panel as the left ankle had not reached maximum medical improvement; the appellant had undergone surgery on the left ankle the day prior to examination by the Medical Assessor and the Panel was of the view that the ankle would not reach maximum medical improvement until approximately 12 months after that surgery.

Decision date: 15 July 2021| Panel Members: Member William Dalley, Dr David Crocker and Dr James Bodel | Body system: Right lower extremity, left lower extremity and scarring

Allen v Dux Manufacturing Pty Limited [2021] NSWPICMP 126

Appeal from assessment of whole person impairment (left lower extremity, digestive system); whether left leg symptoms satisfied the criteria for a class 1 or class 2 assessment; whether assessor erred in finding there was no causal nexus between rectal bleeding and injury; Held- MAC revoked and new one issued.

Decision date: 19 July 2021 | Panel Members: Richard Perrignon, Dr John Garvey and Dr Cyril Wong | Body system: Left lower extremity and digestive system

O’Connor v John A Martin and Kevin J Pendergast t/as Sharkscrete [2021] NSWPICMP 127

Appeal from assessment of whole person impairment (cervical spine, lumbar spine, left lower extremity - knee and ankle); whether assessor failed to provide reasons for his assessment of the cervical spine; whether he erred in calculating a 3% whole person impairment (lumbar spine); whether he erred in deducting one half and three-quarters for pre-existing conditions of the lumbar spine and left knee respectively; whether he failed to take account of radiological evidence and range of motion in assessing the left ankle; appellant referred for examination of the cervical spine; Held- MAC revoked and new one issued.

Decision date: 20 July 2021 | Panel Members: Member Richard Perrignon, Dr James Bodel and Dr Robin Fitzsimons| Body system: Cervical spine, lumbar spine, left upper extremity and left lower extremity

Hicks v New South Wales Sugar Milling Co-operative Limited [2021] NSWPICMP 128

Psychological Injury; appellant alleged error in the assessment under two categories under the Permanent Impairment Rating Scale (PIRS) namely Self-Care and Personal Hygiene and Concentration, Persistence and Pace; 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; MAC confirmed.

Decision date: 20 July 2021| Panel Members: Member Jane Peacock, Dr Julian Parmegiani and Dr Patrick Morris| Body system: Psychological/ psychiatric disorder

Khullar v ANZ Banking Group Limited [2021] NSWPICMP 129

Appeal by worker against finding by Medical Assessor (MA) of DRE Cervical Category I in respect of neck injury; where MA recorded complaints of intermittent non-verifiable radicular symptoms in C6-8 dermatomal distribution; where respondent’s Independent Medical Expert accepted the presence of non-verifiable radicular symptoms; where no valid reason to doubt the authenticity of the complaints; Held- as non-verifiable radiculopathy is a criterion for DRE II and not for DRE I, the AMS should have found DRE Cervical Category II; MAC revoked.

Decision date: 20 July 2021 | Panel Members: Member Paul Sweeney, Dr Philippa Harvey-Sutton and Dr Drew Dixon | Body system: Cervical spine and right upper extremity

Spartalis v Zip Heaters Australia Pty Limited [2021] NSWPICMP 130

The medical dispute required the assessment of the appellant’s permanent impairment from a psychological injury; appellant submitted the Medical Assessor did not take into account his evidence relating to the categories of social functioning and concentration, persistence and pace, and that consequently the Medical Assessor’s classifications of his impairment in these categories as mild was wrong; Held- when assessing the appellant’s impairment, the Medical Assessor took into account all of the material at his disposal, which included the evidence in the appellant’s statement and also the history the Medical Assessor obtained during the assessment and the findings the Medical Assessor made during his examination of the appellant; based on that material, it was open to the Medical Assessor to classify the appellant’s impairment in social functioning and in concentration, persistence and pace as mild; MAC confirmed.

Decision date: 20 July 2021 | Panel Members: Member Marshal Douglas, Dr Patrick Morris and Professor Nicholas Glozier| Body system: Psychological/ psychiatric disorder

Merit Review Decisions

ACA v GIO [2021] NSWPICMR 30

Merit Review; dispute about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); claimant injured in motor accident; insurer calculated claimant’s PAWE; insurer determined claimant had capacity to return to his pre-accident employment as a food delivery driver and accordingly, weekly benefits would cease; internal review affirmed insurer’s decision; earning capacity and calculation of PAWE disputed by claimant; Medical Assessor determined claimant had regained capacity to return to pre-accident employment; claimant agreed to insurer’s decision regarding calculation of PAWE however disputed decision of Medical Assessor; whether jurisdiction to continue as a merit review; Held- no jurisdiction to review the decision of the Medical Assessor.

Decision date: 13 July 2021| 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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