Legal Bulletin No. 26

Issued 27 August 2021

Welcome to the twenty-sixth 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.

Supreme Court Decision

Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077

ADMINISTRATIVE LAW; judicial review; decision of Medical Assessor and delegate of the President of the Personal Injury Commission of NSW; whether Medical Assesor considered and addressed claimant’s submissions and provided sufficient reasons; submission regarding contribution of accident to condition of claimant and ongoing symptoms not addressed; Medical Assessor made finding contrary to claimant’s submissions and associated evidence without referring or apparently taking into account what claimant put to him; Medical Assessor’s reasons are insufficient; decisions of Medical Assessor and President’s delegate must be set aside.

Decision date: 26 August 2021 | Before: Adamson J

Presidential Decision

Nonconformist Pty Ltd v Fisher [2021] NSWPICPD 26

WORKERS COMPENSATION- epidemiological evidence and the question of causation; Amaca Pty Ltd v Booth, Seltsam Pty Limited v McGuiness, James Hardie & Coy Pty Limited v McGuiness discussed and applied; principles applicable to establishing error in accordance with section 352(5) of the 1998 Act; Raulston v Toll Pty Ltd and Henderson v Foxworth Investments Ltd applied.

Decision date: 19 August 2021 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

ACE v AAI Limited t/as GIO [2021] NSWPIC 289

Miscellaneous Claims Assessment; dispute about legal costs and other costs and expenses that the Claimant is entitled to recover from the insurer in connection with the proceedings; claimant sought order that insurer pay his costs on the basis that exceptional circumstances exist within the meaning of 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- issues in these proceedings did not represent a departure from the norm; not satisfied exceptional circumstances exist; claimant entitled to recover the maximum regulated amount for legal costs.

Decision date: 13 August 2021 | Member: Brett Williams

ACF v Insurance Australia Limited t/as NRMA [2021] NSWPIC 290

Miscellaneous claims assessment; whether accident caused wholly by the fault of the Claimant; onus of proof; Vines v Djordjevitch considered; Held- motor accident was not caused wholly by the fault of the Claimant; Claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 and Motor Injuries Regulation 2017.

Decision date: 13 August 2021| Member: Brett Williams

Dhakal v QBE Insurance (Australia) Limited [2021] NSWPIC 296

Settlement Approval; 23-year-old on student visa; injury as passenger, small bowel and sigmoid injuries; laparotomy and small bowel resection; good recovery; 0% WPI; economic loss; unfit for work for 49 weeks, buffer for future earning impairment.; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 18 August 2021| Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Eftimovski v Toll Global Express Courier [2021] NSWPIC 288

Claim for ongoing weekly benefits; dispute as to proper calculation of PIAWE and quantification of incapacity; applicant found to have sustained an injury pursuant to sections 4 and 9A in previous Workers Compensation Commission proceedings; previous Certificate Of Determination indicated that the issue of “worker” was conceded; applicant paid through a partnership with his spouse which had an ABN; new information that spouse performed duties in the partnership at an hourly rate; Gerob Investments Ballina Pty Ltd t/as Beach Life Homes v Compton considered; Held- the issue of “worker” not disputed in these proceedings; other than the GST payments, all of the monies paid by the respondent was income received by the applicant for work performed in employment with the respondent; orders made for ongoing weekly compensation.

Decision date: 12 August 2021| Member: Rachel Homan

Mehr v Bulk Recovery Solutions Pty Ltd [2021] NSWPIC 291

Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act for psychological injury caused by a disease process; applicant had accepted injury to lumbar spine and left knee; no dispute that applicant had a psychological condition; whether factual allegations of bullying and harassment occurred; whether factual allegations of bullying and harassment were the main contributing factor to the psychological injury; whether the psychological injury was a secondary psychological injury and a defence was available pursuant to section 65A of the 1987 Act; whether a defence was available pursuant to section 11A of the 1987 Act in respect of a primary psychological injury; Held– the applicant’s psychological injury is an “injury” within section 4(b)(i) of the 1987 Act; the applicant’s psychological injury is a primary psychological injury and no defence is available pursuant to section 65A of the 1987 Act; the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by or on behalf of the employer in relation to redundancy and no defence is available pursuant to section 11A of the 1987 Act; the respondent is to pay compensation to the applicant pursuant to section 66 of the 1987 Act in respect of psychological injury caused by a disease process.

Decision date: 13 August 2021| Member: Karen Garner

Smith v Secretary, Department of Education [2021] NSWPIC 292

Further claim for permanent impairment compensation under the Table of Disabilities; worker suffered an injury to both feet in 1993 and compensated in respect of both feet; medical report obtained to support further claim which assessed loss of use of each leg below the knee; no claim made in respect of consequential condition; referral should seek assessment in respect of feet; Held- remitted for referral to Medical Assessor.

Decision date: 13 August 2021| Member: Catherine McDonald

Pioneer Concrete Group Pty Ltd v Workers Compensation Nominal Insurer [2021] NSWPIC 293

The employer ran a concrete pumping business with a depot in Queanbeyan, New South Wales and undertook most, but not all, of its work in the ACT; it held a workers compensation policy only in the ACT; the worker was injured when he lifted a petrol can at the depot; the Nominal Insurer under the 1987 Act paid the claim and sought reimbursement from the employer; the preliminary issue for determination was the worker’s state of connection within the meaning of section 9AA of the 1987 Act; the parties agreed that the worker usually worked in both the ACT and NSW; findings of fact made that the worker normally attended the deport at the commencement of and the end of the workday; Held- the state of connection was not identified by section 9AA(3)(b) as the worker was based at the Queanbeyan depot and probably also based with the concrete pump truck as that had been supplied by the employer;  the state of connection was determined by the employer’s principal place of business under section 9AA(3)(c) which was at the Queanbeyan depot where it maintained its plant, the worker attended daily, it had an office, and indicated through correspondence that it operated from those premises; the concrete pump truck was stored at the Queanbeyan depot out of work hours; balance of the claim stood over for determination of other issues.

Decision date: 17 August 2021 | Principal Member: John Harris

Sivankutty v State of NSW (Sydney Local Health District) [2021] NSWPIC 294

Application for weekly payments and section 60 compensation; closed period sought for recovery period from right lower extremity incapacity; respondent expert asserted osteoarthritis was the cause, and was not compensable, being constitutional in nature; applicant relied on treating orthopaedic surgeon, treating neurosurgeon and medico-legal orthopaedic surgeon, who agreed that the symptoms were caused by pathology at L5/S1; Held- respondent expert inconsistent and not credible; Award applicant.

Decision date: 17 August 2021| Member: John Wynyard

Asgari v iSpark Electrical & Solar Pty Ltd [2021] NSWPIC 295

Claim for costs of future cervical fusion surgery; injury accepted; whether surgery reasonably necessary as a result of workplace injury; requirement for applicant to demonstrate causal connection on a common-sense basis; Kooragang Cement Pty Ltd v Bates followed; applicant must demonstrate the surgery is reasonably necessary as a result of the work injury; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service applied; Held- the surgery is reasonably necessary as a result of the work injury; respondent is to pay the costs of and incidental to the proposed surgery.

Decision date: 18 August 2021| Member: Cameron Burge

Workers Compensation Medical Appeal Panel Decisions

Secretary, Department of Education v Alisha [2021] NSWPICMP 148

Employer appeal against assessment of 65% WPI for upper extremity Complex Regional Pain Syndrome (CRPS); referral limited to the shoulders; whether Medical Assessor had discretion to ignore referral terms; Held- terms of referral discussed and agreed at teleconference; original claim based on range of motion methodology; Skates v Hills Industries Ltd discussed; respondent worker re-examined; MAC revoked and new MAC for 14% WPI on range of motion issued; CRPS found not to be present on re-examination.

Decision date: 13 August 2021 | Panel Members: Member John Wynyard, Dr Michael Davies and Dr Ross Mellick| Body system: Right upper extremity and left upper extremity

Mertoa v Hunt Civil Pty Ltd [2021] NSWPICMP 149

Appellant sustained injury to the right shoulder and developed Chronic Regional Pain Syndrome which Medical Assessor (MA) assessed at 60% WPI; MA then deducted one-tenth pursuant to section 323 in respect of impairment from a fall some months after the work injury; Held- MA erred in making a deduction pursuant to section 323 for a subsequent injury; Panel not satisfied that any impairment was caused in the fall; MAC revoked.

Decision date: 16 August 2021 | Panel Members: Member Carolyn Rimmer, Dr John Brian Stephenson and Dr Gregory McGroder| Body system: Right upper extremity

Boral Montoro Pty Ltd v Ducat [2021] NSWPICMP 150

Employer appeals against classification of PIRS categories of Travel and Social functioning and the application of section 323(2) to the assessed impairment; Held- the failure of the Medical Assessor (MA) to consider surveillance evidence or to explain the deterioration in the worker’s psychological functioning after she became aware of that evidence constituted error; no error in the application of section 323(2); Marks v Secretary, Department of Communities and Justice considered and distinguished; after re-examination MAC revoked and a new MAC issued reflecting the different view formed by the panel to the classification of Travel.

Decision date: 17 August 2021| Panel Members: Member Paul Sweeney, Dr Julian Parmegiani and Dr Michael Hong| Body system: Psychiatric/ psychological disorder

Motor Accidents Merit Review Panel Decision

Darwiche v GIO [2021] NSWPICMR 34

Merit Review; whether for the purpose of section 3.11 of the Motor Accidents Injuries Act 2017 (2017 Act) the injury caused by the motor accident is a minor injury; whether for the purpose of section 3.11 of the 2017 Act the motor accident was caused mostly by the fault of the claimant; whether weekly benefits should commence from the day after the accident or from the day the Claimant lodged his Claim Form; Held- PAWE is affirmed; application otherwise dismissed on the basis there is no jurisdiction to determine the disputes on the basis of a merit review.

Decision date: 15 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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