Legal Bulletin No. 28
This bulletin was issued on 10 September 2021
Issued 10 September 2021
Welcome to the twenty-eighth 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
ADMINISTRATIVE LAW – Judicial review; Personal Injury Commission; Workplace Injury Management and Workers Compensation Act 1998 (NSW); review of the decision of a Medical Appeal Panel; jurisdictional error; error on face of the record; complex regional pain syndrome; whether Medical Appeal Panel erred in finding the Medical Assessor did not provide sufficient reasons.
Decision date: 3 September 2021 | Before: Harrison AsJ
Motor Accidents non-Presidential Member Decisions
Whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant rode his bicycle and attempted to make a left hand turn at a t-intersection controlled by traffic lights when struck by the insured motor vehicle; insured driver being unable to take evasive action; photographs depicted the breadth of the t-intersection; both parties had an unobstructed vision available to them; both parties failed to keep a proper lookout; insurer in the alternative alleged 75% contributory negligence; COPS event report; factual investigation report; apportionment of culpability; Held - motor accident not caused wholly or mostly by the fault of the claimant; contributory negligence of the claimant considered to be negligent to extent of 50%; claimant entitled to payment of legal costs assessed at the maximum regulated fee.
Decision date: 16 August 2021| Member: David Ford
Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault under sections 3.11 and 3.28; motorcycle collided with car at or near intersection; two contradictory versions of events; reliability of evidence of witnesses considered; Held- claimant not wholly or mostly at fault; costs penalty awarded under section 6.21.
Decision date: 17 August 2021| Member: Belinda Cassidy
Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; settlement of $20,000 a compromise for possible past and future economic losses; claimant at time in receipt of Centrelink benefits due to previous physical and psychiatric conditions and not earning income in Australia; claimant had business interests overseas; medical evidence supported claimant sustaining injuries in car accident that may have impacted his ability to manage his businesses; no matters of principle; Held - proposed settlement approved in accordance with section 6.23.
Decision date: 27 August 2021 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Claim for weekly payments of compensation for partial incapacity for injury to back and neck; whether worker continues to suffer aggravating effects of work injury; weight to be given to Certificates of Capacity; reference to DHL Exel Supply Chain (Australia) Pty Ltd v Hyde; Held – worker continues to suffer aggravating effects of work injury to back and neck; worker has had partial incapacity for work since April 2021; order for weekly payments of compensation pursuant to section 37 of Workers Compensation Act 1987 and payment of reasonably necessary medical expenses.
Decision date: 26 August 2021| Member: John Isaksen
Claim for permanent impairment relating to a psychological injury; applicant suffered accepted injury to vocal cords as a result of exposure to protracted noise over the course of several months; also claims psychological injury arising from same circumstances; respondent denies injury on basis applicant does not suffer recognisable psychological condition (sections 4 and 9A of the Workers Compensation Act 1987 (1987 Act) and in alternative alleges psychological injury was secondary to the physical injury and therefore no permanent impairment compensation payable (section 65A of the1987 Act); Held- applicant suffered a psychological injury; the preponderance of the medical evidence establishes she meets the criteria for a psychological injury rather than mere emotional upset or distress; Thazin-Aye v WorkCover Authority (NSW) referred to; the fact the applicant did not complain for some time to a general practitioner is not fatal to a claim for psychological injury; Baker v Southern Metropolitan Cemeteries Trust followed; the applicant’s psychological injury arose as a consequence of her physical injury; as such, there is no entitlement to permanent impairment compensation; award for the respondent.
Decision date: 27 August 2021| Member: Cameron Burge
Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer; issue as to whether “suggested transfer” amounted to a “proposed transfer”; employer was concerned about worker’s ability to work with a variety of health issues; option of a transfer raised; worker suffered aggravation of pre-existing psychological condition; worker alleged bullying and harassment during course of employment; Jackson v Work Directions Australia Pty Ltd t/as Work Directions Australia, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair, Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie, Attorney General’s Department v K, Shore v Tumbarumba Shire Council and Director General, and Department of Education and Training v Pembroke discussed and applied; Held -worker’s injury wholly or predominantly caused by action proposed to be taken by employer with respect to transfer, but the manner in which it acted was unreasonable; award for applicant for weekly compensation and medical expenses.
Decision date: 30 August 2021| Senior Member: Glenn Capel
Claim for lump sum compensation; weekly payments; medical expenses; accepted injuries to lumbar spine and left ankle in fall from the ladder at work; whether applicant injured cervical spine as well; consideration of clinical notes; finding that applicant injured cervical spine in the fall; matter referred to Medical Assessor for assessment of whole person impairment of lumbar spine, left ankle, cervical spine; Held - finding that applicant had partial incapacity during the period claimed; respondent to pay the applicant weekly compensation as claimed; respondent to pay the applicant’s reasonably necessary medical expenses; liberty to apply with respect to the calculation of weekly payments and medical expenses.
Decision date: 31 August 2021 | Member: Jill Toohey
Permanent impairment claim for accepted right shoulder injury and disputed consequential left shoulder condition; Moon v Conmah and Kooragang v Bates considered; Held - found left shoulder condition was consequential to right shoulder injury.
Decision date: 31 August 2021| Member: Michael Wright
Claim for weekly benefits resulting from psychological injury sustained in the course of employment with the respondent; Held – the applicant had no current work capacity between 18 December 2020 and 4 February 2021 and the respondent is to make payments of weekly compensation under section 37(1)(b) of the Workers Compensation Act 1987 (1987 Act); the applicant had a current work capacity (20 hours each week) between 5 February 2021 and 15 April 2021 and the respondent is to make payments of weekly compensation under section 37(3)(a) of the 1987 Act.
Decision date: 31 August 2021| Member: Jacqueline Snell
Death claim; determination of dependency, apportionment and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris and Kaur v Thales Underwater Systems Pty Ltd considered; Wratten v Kirkpatrick & Ors discussed and applied; Held- death benefit apportioned and orders for interest and payment.
Decision date: 31 August 2021| Senior Member: Glenn Capel
Consideration of employment relationship between various entities; consideration of section 9AA of the Workers Compensation Act 1987 (1987 Act); Held – the Nominal Insurer is to pay any compensation including reasonably incurred section 60 expenses and costs awarded against the employer from the Workers Compensation Insurance Fund pursuant to section 154D of the1987 Act.
Decision date: 1 September 2021| Member: Elizabeth Beilby
Worker suffers psychological injury when suspended from work as a registered nurse following complaints of misconduct by other staff; employer denies entitlement to compensation on the basis of reasonable action with respect to discipline within section 11A(1) of the Workers Compensation Act 1987; discussion as to whether provision and tender of primary material evidencing complaint/s was a prerequisite for proof of reasonableness of worker’s suspension and investigation; State of New South Wales v Stokes considered; Held- the evidence required to establish reasonableness depends on the circumstances of the case; not a prerequisite to proof of reasonableness that a worker be furnished with all relevant primary material prior to a factual investigation; reasonableness might be inferred from the circumstances of the case; worker’s injury in this case was predominantly caused by reasonable action in respect of discipline; award for the respondent.
Decision date: 1 September 2021| Member: Paul Sweeney
Claim for ongoing weekly benefits and lump sum compensation for primary psychological injury; worker on a journey home from work when she witnessed, and was a first responder to a motor vehicle accident, in which a co-worker was seriously injured; post-traumatic stress disorder; whether injury sustained on a journey to which section 10 of the Workers Compensation Act 1987applies; whether real and substantial connection between employment and the incident out of which injury arose; Held - worker sustained a personal injury on a journey to which section 10 applies; award for weekly compensation; matter remitted to President for referral to a Medical Assessor.
Decision date: 1 September 2021| Member: Rachel Homan
Workers Compensation Medical Appeal Panel Decisions
Worker alleges that the exclusion of hearing loss in the frequencies below 2000 hertz (Hz) by the Medical Assessor constituted demonstrable error; Held - MAC confirmed; configuration of audiograms not consistent with hearing loss below 2000 Hz being caused by occupational noise exposure.
Decision date: 26 August 2021 | Panel Members: Member Paul Sweeney, Dr Henley Harrison and Dr Robert Payten | Body system: Hearing
Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene and concentration persistence and pace; fresh evidence not admitted because it was simply a statement by the appellant challenging the findings by the MA in circumstances where the appellant had provided a number of conflicting statements; the MA’s assessments were open to him on the evidence; Held – the Medical Assessment Certificate (MAC) was extremely thorough and detailed; MAC confirmed.
Decision date: 27 August 2021 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/ psychological disorder
Worker suffered head and orthopaedic injuries in a fall from a height; Medical Assessor has assessed worker on two previous occasions when he had not reached maximum medical improvement; assessment in light of inconsistency on examination; no error in assessment of orthopaedic injuries; Held - Medical Assessor did not explain assessment of brain injury and omitted aspects which were supported by his own findings; Medical Assessment Certificate revoked.
Decision date: 31 August 2021| Panel Members: Member Catherine McDonald, Dr Michael Davies and Dr J Brian Stephenson | Body system: Cervical spine, right upper extremity and nervous system
Appeal against 10% WPI assessment for the right upper extremity; whether grip strength should have been assessed; whether scarring should have been assessed; Held - Chapter 2.13 of the Guides prohibits grip strength from being assessed; appellant unable to avoid its application; scarring had not been claimed and was therefore not part of the dispute; Skates v Hill Industries Ltd considered and applied; Medical Assessment Certificate confirmed.
Decision date: 31 August 2021| Panel Members: Member John Wynyard, Dr Drew Dixon and Dr Margaret Gibson | Body system: Right upper extremity
Parties refer left lower limb/left leg at or above the knee for assessment resulting from a 1996 injury without identifying site of injury; employer appeals from certification by Medical Assessor (MA) of WPI and loss of efficient use of the leg at or above the knee resulting from hip injury; applicant’s statement and medical evidence contain no reference to left hip injury; previous medical examinations of the hip exclude injury; Skates v Hills Industries Ltd considered; Held - there will generally be no error by an MA when his findings and certification are consistent with the referral; in the circumstances of this case, there was compelling evidence that the applicant’s hip impairment did not result from the 1996 injury; certification of WPI for left hip set aside; certification of loss of efficient use of left leg at or above the knee confirmed; new Medical Assessment Certificate issued.
Decision date: 1 September 2021| Panel Members: Member Paul Sweeney, Dr Roger Pillemer and Dr Mark Burns | Body system: Cervical spine, lumbar spine, left upper extremity, right lower extremity and left lower extremity
Motor Accidents Merit Review Decisions
Merit review; entitlements to weekly payments in accordance with section 3.8 of the Motor Accident Injuries Act 2017 (MAI Act); Claimant alleges partial loss of earning capacity; Insurer disputes that the Claimant suffers a loss of earning capacity; Insurer argues that dispute about earning capacity constitutes a medical assessment matter in accordance with Schedule 2 clause 2(d) of MAI Act, and that the Commission does not have jurisdiction to determine the dispute as a merit review matter; Claimant submits that the dispute constitutes a merit review matter because it is about the amount of statutory benefits that is payable under Division 3.3 (Schedule 2 clause 1(a)), and that the Commission has jurisdiction to determine it as such; Held - Commission has jurisdiction to determine a dispute about earning capacity as a merit review matter; the dispute is not about “impairment of the earning capacity” of the Claimant; section 3.8 uses the term “loss of earning capacity” in section 3.8(1) and “post-accident earning capacity” in section 3.8(2); the term “impairment of earning capacity” is not found in section 3.8; while the term “impairment of earning capacity” is found in Part 4 of the MAI Act (sections 4.5(1)(a), 4.6(1)(a), 4.6(3), 4.8 & 4.9(1)(a)), that Part addresses entitlements to damages, not statutory benefits; a dispute about loss of earning capacity in the context of section 3.8 is a dispute about the amount of statutory benefits that is payable under Division 3.3; accordingly, it is a merit review matter; the Insurer placed too much weight on the Claimant’s ability to perform some overtime for a period after returning to work; by placing so much emphasis on this consideration, the Insurer failed to adequately address the balance of the matters that are relevant to a determination of the Claimant’s post-accident earning capacity; reviewable decision set aside and remitted to the Insurer for reconsideration; Insurer directed to determine the Claimant’s post-accident earning capacity in accordance with Schedule 1 clause 8 of the MAI Act, and by reference to the totality of the relevant evidence.
Decision date: 27 July 2021| Merit Reviewer: Brett Williams
Merit Review; whether for the purposes of section 8.10 of the Motor Accident Injuries Act 2017, claimant’s legal costs and expenses incurred are reasonable and necessary; Medical Assessor assessed claimant; claimant’s lawyers’ tax invoice seeking maximum costs under Motor Accidents Injuries Regulation 2017; insurer claimed costs claimed were excessive; providing claimant’s statement to Medical Assessor not reasonable or necessary; insurer offered part of maximum costs; reduced availability of costs discourages legal participation; costs not contingent on successful outcome; fixed costs; legal costs; lack of exceptional circumstances under section 8.10(4)(a); no costs for merit review; Held- insurer’s decision set aside, costs assessed at maximum for medical assessment.
Decision date: 17 August 2021| Merit Reviewer: Terence O’Riain
Motor Accidents Merit Review Panel Decision
Merit Review Panel; quantification of the Claimant’s weekly benefits; pre-accident earning capacity (PAWE) and his post-accident earning capacity; Claimant is a director and equal shareholder of company operating a motel; whether Claimant’s PAWE should be determined by reference to director’s fees alone; whether PAWE should be determined by attributing 50% of company’s adjusted profit; whether exceptional circumstances exist in accordance with section 8.10(4)(b) of the Motor Accident Injuries Act 2017 (MAI Act) to permit Commission to permit payment of costs in excess of regulated costs; Held - the Motel is a business carried on by the company, a legal entity in its own right, and not the Claimant; neither the Motel nor the company are businesses carried on by the Claimant in partnership; the Claimant’s only income from personal exertion received by him as an earner during the 12 months immediately before the accident were the director’s fees from the company; the management fees paid to the Claimant reflect his capacity to earn in the employment in which he was engaged immediately before the motor accident, determined on the basis of his fitness for work in that employment during that period; having regard to the nature and complexity of the dispute, together with the work performed by the Claimant’s lawyers, exceptional circumstances exist that justify the Commission permitting payment of the Claimant’s reasonable and necessary legal costs in connection with the Panel review in accordance with section 8.10(4)(b) of the MAI Act; the merit review decision of 4 September 2020 is set aside; decision made in substitution.
Decision date: 29 July 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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