Legal Bulletin No. 19
This bulletin was issued on 9 July 2021
Issued 9 July 2021
Welcome to the nineteenth 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.
Motor Accidents non-Presidential Member Decision
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11, 3.28 and 3.36 of the Motor Accident Injuries Act 2017; claimant contends blameless accident; travelling down a hill on a wet road; wheel lost traction; attempted to control, sudden roll; no evidence to support the existence of any unknown hazard; no evidence to support any mechanical failure or defect; claimant driving faster than was safe in the circumstances; single vehicle accident; Held- accident was caused wholly by the fault of the claimant.
Decision date: 23 June 2021 | Member: Hugh Macken
Workers Compensation non-Presidential Member Decisions
Psychological injury; applicant’s credibility; causation, medical evidence and perception of real events; Attorney General v K considered; several lay witnesses dispute applicant’s claims of injurious events; relevance of applicant’s ‘egg shell skull psyche’; consideration of section 4(b)(ii) and section 11A; causation and section 11A; Held- perception causation established but economic incapacity beyond 26 November 2019 insufficient evidence; some awards for applicant and section 66 remittal but otherwise award respondent re ongoing weekly payments claim.
Decision date: 24 June 2021| Member: Philip Young
Claim for weekly payments and medical expenses; claim for psychological injury within the meaning of section 4(a); worker assaulted by patient; worker did not dispute pushing patient in response but denied he used excessive force; whether psychological condition wholly or predominantly caused by reasonable action with respect to discipline; whether psychological injury solely attributable to serious and wilful misconduct by the worker; Held- finding that injury not wholly or predominantly caused by disciplinary action; finding that conduct not wilful; injury not solely attributable to misconduct; respondent to pay weekly compensation in accordance with certificates of capacity up to date when psychiatrists considered he had no current capacity for employment; weekly compensation for no current capacity from that date to date and continuing; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.
Decision date: 24 June 2021 | Member: Jill Toohey
Claim for weekly payments of compensation for an accepted injury to the left foot but injury to left knee, left hip and lower back and/or a consequential condition affecting those body parts in dispute; order also sought for the respondent to meet the costs of left hip surgery; reference to Moon v Conmah Pty Ltd in consideration of the claims for consequential conditions; worker commences self-employed work as Uber driver and consideration of whether decisions in J and H Timbers v Nelson and Cage Developments Pty Ltd v Schubert no 1 remain applicable to a determination of current weekly earnings, which requires a determination of the greater amount of the worker’s actual earnings and the worker’s ability to earn in suitable employment; Held – award for the respondent for the claims of injury to the left knee, left hip and lower back, and consequential condition affecting the left knee; finding that the worker developed a consequential condition affecting his left hip and lower back as a result of the injury to left foot; award of weekly payments for no current work capacity for one month and award of partial incapacity after consideration of the details of earnings provided by worker while working as an Uber driver; order for the respondent to meet payment of past treatment for the lower back and left hip and for the proposed surgery to the left hip.
Decision date: 24 June 2021| Member: John Isaksen
Death claim; determination of dependency and payment of death benefit; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held- no other dependants; award for the applicant.
Decision date: 24 June 2021 | Senior Member: Glenn Capel
Claim for lump sum benefits for psychiatric injury suffered by store manager; store staff unhappy with her performance and complained to management; efforts made to support and encourage worker unsuccessful; further complaints received and informal conversation in food hall of the mall where the store was situated referred to the involvement of HR and formal proceedings; worker resigned before investigations completed; worker alleged suicide attempt by cutting wrists as a result of being bullied; hospital notes showed attendance some weeks before with forearm laceration following domestic accident; worker’s credit seriously damaged; issue only section 11A; worker submitted credit issue not relevant and respondent actions not covered by the definitions in section 11A; respondent alleged evidence showed that relevant actions were “proposed to be taken”; written submissions ordered as to meaning of phrase “proposed to be taken”; Held- credit issue relevant regarding the circumstances of the meeting, although pertinent aspects corroborated by respondent’s witness; worker’s evidence not accepted if uncorroborated; consideration of phrase “proposed to be taken”; informal meeting sufficient to comply with construction of phrase; Award respondent.
Decision date: 25 June 2021| Member: John Wynyard
Claim for compensation pursuant to section 60 for proposed dental treatment; undisputed bilateral carpal tunnel injury found by AMS to have resulted in 74% WPI; whether consequential dental condition due to being unable to maintain adequate oral hygiene and xerostomia induced by anti-depressant medication; significant pre-existing dental condition; extensive surveillance suggesting greater ability to use upper limbs than claimed; Held- Commission satisfied that applicant sustained a consequential dental condition; Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; proposed treatment reasonably necessary as a result of injury.
Decision date: 25 June 2021 | Member: Rachel Homan
Claim for the cost of proposed L4/5 disc replacement and L5/S1 anterior interbody fusion; whether aggravation of pre-existing lumbar spondylosis ceased; whether proposed surgery is reasonably necessary as a result of injury on 20 February 2017; consideration of Kooragang Cement Pty Limited v Bates, Diab v NRMA Ltd and Rose v Health Commission (NSW); Held- found aggravation is continuing and surgery is reasonably necessary as a result of injury on 20 February 2017; respondent ordered to pay costs of proposed surgery.
Decision date: 25 June 2021 | Member: Michael Wright
The name of the respondent amended; 2 respondents; claim for weekly benefits and lump sum compensation; no dispute applicant injured on 1 April 2009, and has been paid compensation since; applicant pleaded injury should be by way of a disease with a deemed date of injury of 6 August 2018; the proper interpretation of all the evidence is that the applicant suffered an injury in the course of her employment on and prior to 1 April 2009 which was further exacerbated over the years up to August 2018; Held- award for weekly payments from August 2018 at rates applicable for injury on 1 April 2009; permanent impairment claim remitted for referral to a Medical Assessor.
Decision date: 25 June 2021| Member: Deborah Moore
Issue estoppel; Consent Orders in prior proceedings in 2019 regarding award for the respondent for costs of lower back surgery; applicant subsequently assessed for and claimed section 66 lump sum for WPI lower back injury after surgery; respondent relies on Consent Orders to submit applicant estopped from claiming WPI component consequent upon surgery; Held- Consent Orders not specific on reason for section 60 award for the respondent; estoppel discussed generally, difference in issues on sections 60 and 66; Tomlinson v Ramsey Food Processing Pty Limited and Etherton v ISS Property Services Pty Limited considered; applicant not estopped but liberty to respondent to apply if earlier notified matter regarding causation injury and surgery is pressed.
Decision date: 25 June 2021| Member: Philip Young
Claim for permanent impairment as a result of undisputed injury to left upper extremity and condition in the right upper extremity (shoulder) consequent upon the injury to the left upper extremity; applicant claims that he favoured his injured left upper extremity which gave rise to the condition in the right shoulder; detailed examination of the treating and qualified medical evidence; reliance placed on the Presidential decisions of Schembri v Blacktown City Council and Murphy v Allity Management Services Pty Ltd on the issue of whether the applicant had discharged the onus on him to show a causal connection between the left upper extremity injury and the right shoulder condition; reliance also placed of the decision of Wood DP in Ly v Jitt Offset Pty Ltd in respect of the opinions expressed in the expert medical evidence; Held- finding in favour of the applicant that the right shoulder condition arose as a consequence of the injury to the left upper extremity; determination the respondent liable to pay lump sum compensation pursuant to section 66 of the 1987 Act in respect of injury to the left upper extremity and right upper extremity in accordance with the assessments of one of the independent medical examiners in evidence; respondent also ordered to pay applicant’s section 60 expenses in respect of the right shoulder condition.
Decision date: 28 June 2021 | Member: Brett Batchelor
Claim for compensation pursuant to section 60 for proposed lumbar surgery; whether injury to the lumbar spine; whether surgery reasonably necessary as a result of injury; accepted injury to cervical spine and right lower extremity in 2009 fall; apart from a single clinical note referring to lumbar symptoms on the day of the fall, no further mention of lumbar symptoms in connection with the fall in extensive medical and factual evidence for more than five years; Held- Commission not satisfied that applicant sustained lumbar injury in the fall; even if there was an injury, the present need for surgery did not result from such injury; award for the respondent in respect of the proposed treatment.
Decision date: 29 June 2021 | Member: Rachel Homan
Permanent impairment compensation; whether applicant suffered injury by way of epileptic episode and to right upper extremity as a result of workplace fall; respondent alleges applicant staged fall; Held- applicant discharged his onus of proof that he suffered workplace injury to his nervous system and to his right shoulder as a result of the fall; the respondent’s allegation of the applicant staging a fall is not made out; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment to the right upper extremity and the nervous system.
Decision date: 30 June 2021 | Member: Cameron Burge
Claim for medical expenses, including the cost of proposed L4/L5 laminectomy, discectomy and fusion; longstanding history of lumbar spine symptoms; applicant being treated by neurosurgeon before the injury, but surgery had not been recommended; delay in recording injury to lumbar spine in clinical records; appropriateness of surgery as treatment for applicant’s condition not disputed; application of section 4(b)(ii) of the 1987 Act; Kooragang Cement Pty Ltd v Bates and Murphy v Allity Services considered; Held- the applicant sustained injury to his lumbar spine due to aggravation of pre-existing degenerative disease, to which employment was the main contributing factor; medical treatment, including proposed surgery, reasonably necessary as a result of injury; award for the applicant for past medical expenses and cost of surgery.
Decision date: 30 June 2021 | Member: Kerry Haddock
Claim for compensation for proposed bilateral endoscopic carpal tunnel release surgery; not disputed that the applicant has bilateral carpal tunnel syndrome or that the proposed surgery is reasonably necessary; dispute as to causation; respondent submitted condition a constitutional one; evidence weighed in the balance; Held- employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation or deterioration of the disease of bilateral carpal tunnel syndrome; award for the applicant.
Decision date: 30 June 2021 | Member: Jane Peacock
Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted physical injury to cervical spine and lumbar spine; whether pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; Held – pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders).
Decision date: 30 June 2021| Member: Karen Garner
Workers Compensation President's Delegate Decision
Claimant lodged a Direction for Access to Information and Premises; the defendant lodged an objection to the Direction, specifically objecting to items 3,4 and 6; defendant submissions in the objection were brief to the point of absence; claimant conceded item 3 sought and provided comprehensive submissions in relation to items 4 and 6; Held- by consent item 3 of the Direction is set aside; other documents sought have an apparent relevance; defendant’s submissions did not sufficiently explain how they would not be relevant to the issues or why seeking them constitutes ‘fishing’; unclear how the documents would be subject of the Privacy and Personal Information Protection Act 1998; decline to set aside items 4 and 6 of the Direction.
Decision date: 30 June 2021 | Delegate: Parnel McAdam
Workers Compensation Medical Appeal Panel Decisions
Injury to right shoulder and lumbar spine; AMS did not record measurements of range of shoulder motion and inadequate record of examination re lumbar spine; re-examination required; inconsistency on right shoulder examination required assessment by reference to impingement; pre-existing spinal canal stenosis; determination by Workers Compensation Commission as to injury; Held- deduction of ¼ substituted for deduction of ½; MAC revoked.
Decision date: 25 June 2021| Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Frank Machart| Body system: Cervical spine, lumbar spine and right upper extremity
Challenge to the four PIRS categories; the appellant’s submissions as regards most categories were lengthy, confusing and ill-defined, and did not address errors- rather a difference of opinion; Medical Assessor required to separate psychiatric and non-psychiatric factors influencing the appellant’s condition; the non-psychiatric factors included physical limitations, chronic pain and opioid analgesia; Held- MAC confirmed.
Decision date: 25 June 2021| Panel Members: Member Deborah Moore, Dr Douglas Andrews, Dr Nicholas Glozier| Body system: Psychological/ psychiatric disorder
The appellant worker commenced employment with the respondent as a garbage truck offsider in 1986 and retired from that employment in April 2019; the appellant suffered injury to both knees deemed to have happened on 17 April 2019; the appellant had knee replacements in January 2018; the Medical Assessor assessed 20% WPI due to the right knee replacement and 15% WPI due to the left knee replacement, but considered a proportion of that was due to pre-existing osteoarthritis, which proportion he assumed was 10% in accordance with section 323(2), such that he assessed the appellant’s WPI resulting from his injury to be 18% for the right lower extremity and 14% for the left lower extremity; Medical Assessor also assessed the appellant had 1% WPI due to scarring; appellant appealed submitting, firstly, the AMS was wrong to make any deduction under section 323 because he did not have osteoarthritis before he commenced his employment and, secondly, AMS ought to have assessed 2% WPI for scarring comprising 1% for each leg; Held- there was no evidence the appellant had pre-existing osteoarthritis and Medical Assessor was therefore wrong to make a deduction under section 323; Appeal Panel held Medical Assessor correctly applied Guidelines with respect to scarring which require that skin be regarded as a single organ and that all non-facial scarring be measured together as one overall impairment rather than assessing individual scars separately and combining the results; MAC revoked.
Decision date: 25 June 2021 | Panel Members: Member Marshal Douglas, Dr Mark Burns and Dr Drew Dixon| Body system: Right lower extremity, left lower extremity and scarring (TEMSKI)
Injury to lumbar spine; reconsideration application where the Panel was asked to reconsider a decision dated 11 February 2019 that the degree of permanent impairment was not fully ascertainable; the decision formerly made by the Panel was based on the fact that further surgery was contemplated at the time of the original assessment; further surgery was in fact undertaken and it has now been greater than 12 months; Held- the degree of permanent impairment is now considered to be fully ascertainable; decision made by the Panel on 11 February reconsidered.
Decision date: 28 June 2021| Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr Gregory McGroder | Body system: Lumbar spine
Employer appeals from certification of Medical Assessor in respect of cervical spine and both upper extremities (shoulders); where Medical Assessor (MA) assessed 2001 injury which had not been referred by the parties; where MA made no deduction pursuant to section 323 in respect of that injury; where evidence lodged by the respondent was not forwarded to the MA; Held- MA in error in assessing WPI for 2001 injury and in failing to make a deduction for that injury; MAC revoked and new MAC issued.
Decision date: 28 June 2021 | Panel Members: Member Paul Sweeney, Dr Tommasino Mastroianni and Dr Brian Stephenson| Body system: Cervical spine, right upper extremity and left upper extremity
Injury to left upper extremity, left lower extremity and scarring; the appellant appealed on the basis that the Medical Assessor (MA) did not assess the left lower extremity in respect of the left ankle; in circumstances where the appellant complained during the examination that the left ankle had started hurting two weeks prior to examination; Held- the MA did not err and was not required to make an assessment of the left ankle which was not part of the claim and about which there was no other evidence; MAC confirmed.
Decision date: 28 June 2021 | Panel Members: Member Jane Peacock, Dr Brian Noll and Dr Tommasino Mastroianni | Body system: Left upper extremity, left lower extremity and scarring
Claim for compensation for left shoulder injury and scarring; referral to Medical Assessor for assessment of left upper extremity without limitation; Medical Assessor assessed impairment arising from shoulder and elbow; no claim re elbow; Skates v Hills Industries Ltd considered; Held- MAC revoked.
Decision date: 28 June 2021 | Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr Margaret Gibson | Body system: Left upper extremity and scarring
Appeal by worker against a determination by a Medical Assessor (MA) of 1% WPI for TEMSKI/ scarring; Held- as the MA failed to identify the criteria which led to his determination he had failed to explain the path of his reasoning; Wingfoot Australia Partners Pty Limited v Kocak considered; after re-examination, the panel determined that 1% WPI was the best fit for the worker’s scar in accordance with the criteria and descriptors in Table 14.1; MAC confirmed.
Decision date: 29 June 2021| Panel Members: Member Paul Sweeney, Dr Tommasino Mastroianni and Dr John Ashwell| Body system: Lumbar spine and scarring (TEMSKI)
Worker suffering primary psychological injury appeals against the classification of the Medical Assessor in the PIRS categories of travel, concentration, persistence and pace and employment on the basis there was an error of a type identified in Ballas v Department of Education (State of New South Wales); Ballas considered and applied; the Appeal Panel agreed with the respondent that “volunteer work” is not a particular conduct but a description of several different roles that encompassed various different types of conduct; Held- no error demonstrated; MAC confirmed.
Decision date: 30 June 2021 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/ psychiatric disorder
Laceration and tendon injury to thumb; Commission determined that worker suffered neuropathic pain syndrome; worker did not fulfil criteria for chronic regional pain syndrome; assessment under Guidelines Chapter 2 and testing range of motion; presumption of regularity; Bojko v ICM Property Service Pty Ltd considered; Held- MAC confirmed.
Decision date: 30 June 2021| Panel Members: Member Catherine McDonald, Dr Philippa Harvey-Sutton and Dr J Brian Stephenson| Body system: Right upper extremity and scarring (TEMSKI)
Merit Review Decisions
Merit review; the assessment of pre-accident weekly earnings under section 2(1)(a) of the Motor Accident Injuries Act 2017; limited verifiable documentation provided by the claimant; an earner; subcontractor doing painting work; average 30 hours per week; paid in cash; claimant never invoiced for hours worked; ATO Notice of Assessment; earning income from personal exertion; evidence and submissions not consistent; place weight on taxation records of earnings; Held- reviewable decision affirmed.
Decision date: 15 June 2021| Merit Reviewer: Steve Georgiadis
Merit review; statutory benefits in respect of death under section 3.1 of the Motor Accident Injuries Act 2017; pure mental harm arising from mental or nervous shock; grandmother died as a result of injuries; claimant a minor; psychological injury; close family member under the Civil Liability Act (CLA); “close member of the family”; parental responsibility; a single mother; satisfies section 30(5)(c) of the CLA; Held- insurer is not entitled to refuse payment of statutory benefits; claimant entitled to recovery statutory benefits for pure mental harm arising from mental or nervous shock in connection with the death of grandmother; legal costs.
Decision date: 18 June 2021 | Merit Reviewer: Brett Williams
Merit review; statutory benefits in respect of death under section 3.1 of the Motor Accident Injuries Act 2017; grandmother died as a result of injuries; claimant a minor; psychological injury; close family member under the Civil Liability Act (CLA); Adjustment Disorder; “close member of the family”; parental responsibility; grandmother had prominent role in the girl’s upbringing and well-being; a single mother; day-to-day parental responsibility; consideration of the relationship in question as a whole is required; ‘second parent’ satisfies section 30(5)(c) of the CLA; Held- insurer is not entitled to refuse payment of statutory benefits; legal costs; exceptional circumstances exist.
Decision date: 18 June 2021| Merit Reviewer: Brett Williams
Merit review; recovery of costs and expenses under section 8.10 of the Motor Accident Injuries Act 2017; single application; two discrete medical assessment matters; minor injury matter did not proceed to assessment; insurer reversed its position; claimant is entitled to her reasonable and necessary costs in relation to each medical assessment matter; Held- not satisfied exceptional circumstances exist; reviewable decision set aside; claimant’s costs $1,000 plus GST.
Decision date: 21 June 2021| Merit Reviewer: Brett Williams
Merit review; amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; Property Manager; second job is self-employment; calculation had not taken into account the earnings from the claimant’s second job; bank statements and business tax returns; insurer failed to consider; income from the business can only be ascertained after any expenses; to treat the income separately would not be in accordance with the Act; Held- combined income from both paid employment taken into account in calculating PAWE; reviewable decision set aside.
Decision date: 23 June 2021 | Merit Reviewer: Nick Delfendahl
Merit review; amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; not an “earner”; Centrelink; a carer; “Unable to return to pre MVA role as a carer”; only injured earners are entitled to statutory benefits; usual occupation is that of a carer; the claimant was not an earner at the time of the MVA; care payments are income support and income supplements; Held- reviewable decision affirmed.
Decision date: 24 June 2021 | Merit Reviewer: Kriesen Seeneevassen
Merit review; whether the claimant’s costs and expenses are reasonable and necessary in accordance with section 8.10 of the Motor Accident Injuries Act 2017; cost of a medical report; minor injury dispute; at the Dispute Resolution Service; report addressed the disputed issue; radiculopathy; Held- report was a reasonable and necessary expense; reviewable decision set aside.
Decision date: 28 June 2021 | Merit Reviewer: Terence O’Riain
Legislative Amendments and Related Updates
The Motor Accidents and Workers Compensation Legislation Amendment Bill 2021 (Bill) passed through the Legislative Assembly with amendments on 23 June 2021. The agreed amendment was to omit the proposed changes to section 19 of the Workers Compensation Act 1987 (1987 Act). These proposed changes were to enable the regulations to prescribe the circumstances in which diseases are prescribed for the purposes of presumptions under the 1987 Act.
The Bill was introduced into the Legislative Council on 23 June 2021. Savings and Transitional Provisions will be inserted into the Motor Accident Injuries Act 2017, the Motor Accidents Compensation Act 1999, the Workers Compensation Act 1987 and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 consequent on amendments made by the Bill.
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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