Legal Bulletin No. 30
This bulletin was issued on 24 September 2021
Issued 24 September 2021
Welcome to the thirtieth 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 Decisions
Miscellaneous claims assessment; contributory negligence; whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Motor Accident Injuries Act 2017; pedestrian claimant crossed southbound lane and was hit by insured vehicle travelling at speed in northbound lane; CCTV footage; whether claimant kept a proper lookout; Held - contributory negligence assessed at 15%.
Decision date: 25 August 2021| Member: Elizabeth Medland
Settlement approval; 31-year-old male; motorcycle accident; chronic dislocated left acromioclavicular joint and small triquetrum fracture of the right wrist; ongoing musculo-skeletal shoulder symptoms; 6% whole person impairment so no entitlement to non-economic loss; past economic loss; unfit for work for 12 weeks; future economic loss; buffer for future earning impairment; Penrith City Council v Parks considered; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 31 August 2021| Member: Susan McTegg
Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement under section 6.23 of the MAI Act; claimant self-represented; settlement of $875,000 for non-economic loss; past loss of earnings and future loss of earning capacity; injury; multiple fractures (left and right wrist, left leg, right ankle, ribs, pelvis) and scarring; claimant developed depression; evidence suggested chance of arthritis and continued complaints long term; claimant (aged 63) had not returned to work and could not resume work as bus driver; Held -settlement approved; no matters of principle.
Decision date: 6 September 2021| Member: Belinda Cassidy
Motor Accident Injuries Act 2017; claim for statutory benefits and a claim for damages in respect of motor accident where claimant lodged claims outside statutory time limit (three years post-accident); whether claimant made a full and satisfactory explanation for the delay in making the claims; whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay; whether the claimant is prohibited to recover damages if injuries resulting from the accident were minor injuries: whether the claim for statutory benefits can be made if the claimant’s WPI is greater than 10%; Held -the claimant’s explanation for the delay is full and satisfactory; determination for the claim for statutory benefits deferred until the Personal Injury Commission assessment as to whether the claimant’s injuries are minor injuries; determination for the claim for damages deferred until the Personal Injury Commission assessment as to whether the claimant’s WPI is greater than 10%; claimant invited to make further application if injuries are not minor injuries and WPI is assessed at greater than 10%; order for legal costs not made as no determination made for statutory benefits or claim for damages.
Decision date: 6 September 2021| Member: Elyse White
Miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act); section 5R of the Civil Liability Act 2002; cyclist riding along footpath at 15 kmph when vehicle drove out of driveway colliding with cyclist; claimant not wholly at fault; prudent driver would have considered possibility of cyclist driving across driveway and having regard to poor line of sight failed to take that risk into account or to keep a proper lookout; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; claimant guilty of contributory negligence greater than 61%; section 3.38(2)(d) of the MAI Act required finding of contributory negligence where not wearing helmet when required by law to do so; claimant riding on the footpath in breach of Road Rules 2014; claimant wearing ear buds which impeded his ability to hear the approach of the vehicle; claimant not keeping a proper lookout; claimant not riding with sufficient care where vision impeded by presence of fence and trees; claimant riding on footpath at excessive speed; Held - claimant mostly at fault for the accident; claimant entitled to payment of legal costs assessed at the maximum regulated fee.
Decision date: 14 September 2021| Member: Susan McTegg
Workers Compensation non-Presidential Member Decisions
Order sought by worker for the respondent to meet cost of C5/6 anterior decompression and fusion; respondent admits injury to both shoulders but not to cervical spine; reference to Perry v Tanine Pty Ltd; Held – worker sustained disease injury to her cervical spine as provided by section 4(b)(i) of the Workers Compensation Act 1987 (1987 Act); surgery is reasonably necessary as a result of the injury to the worker; order made pursuant to sections 60 (5) and 61 (4A) of the 1987 Act.
Decision date: 10 September 2021| Member: John Isaksen
The applicant claimed permanent impairment compensation for psychological injury; the respondent admitted injury at the commencement of the arbitration hearing but asserted that the causes of injury were all actions that fell within the meaning of section 11A of the Workers Compensation Act 1987 (the 1987 Act); the preliminary issue for determination was the scope of the section 11A of the 1987 Act defence raised in the section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice and whether the respondent could have leave to widen the particulars pursuant to section 289A of the 1998 Act; Held - the principles of interpretation of the section 78 notice and whether leave should be given are separate issues; the parties agreed that the relevant principles were set out in Mateus v Zodune Pty Ltd; a plain reading of the section 78 notice did not support the respondent’s contention that its further particulars fell within the notice; the application for leave to widen the particulars rejected because the respondent had been guilty of gross delay, had not explained the delay, the application was made on the date of the hearing, had not shown the strength of the expanded defence and the applicant would suffer obvious prejudice from the further delay; observations made of the practice by applicant’s legal practitioners alleging “bullying and harassment when those terms have a legal meaning and often do not apply and to the respondent’s practice of providing unsatisfactory section 11A particulars; Gray v Busways Gosford EMP Pty Ltd referred to; balance of the claim stood over for hearing.
Decision date: 13 September 2021| Principal Member: John Harris
Claim for ongoing weekly benefits, section 60 of the Workers Compensation Act 1987 expenses and lump sum compensation in respect of separate injuries with separate employers; whether consequential left hip condition resulting from injury to right lower leg in the course of employment with the second respondent; Held - worker sustained a consequential left hip condition; matter remitted to President for referral to a Medical Assessor.
Decision date: 13 September 2021| Member: Rachel Homan
Claim for weekly benefits, medical expenses, permanent impairment compensation and interest on weekly benefits as a result of psychological injury; respondent relied on section 11A of the Workers Compensation Act 1987, being actions with respect to retrenchment or dismissal; applicant accepted redundancy while on maternity leave that had commenced 12 months before; dispute as to main contributing factor; incapacity, including effect of applicant’s maternity leave; claim that respondent contravened sections 278 and 283 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), but no submissions by applicant on this issue; application of AV v AW, Ponnan v George Weston Foods Ltd, Miller v NSW Police Service (No 2), Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Pet Foods Pty Ltd, and Kaur v Thales Underwater Systems Pty Ltd; Held - employment was main contributing factor to disease injury; the applicant’s injury was not wholly or predominantly caused by the respondent’s actions with respect to retrenchment or dismissal, which were in any event not reasonable; the applicant has had capacity for work since 27 July 2020, working in family business; the applicant’s entitlement to weekly benefits is not affected by maternity leave; award for the applicant for weekly benefits and medical expenses; claim for interest on weekly benefits declined as not possible to ascertain when claim duly made; the respondent did not contravene sections 278 and 283 of the 1998 Act; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor.
Decision date: 13 September 2021| Member: Kerry Haddock
Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for costs of and incidental to proposed lumbar surgery; accepted lumbar injury; dispute as to whether proposed surgery reasonably necessary; treating practitioners initially not supportive of surgical intervention; respondent’s medicolegal expert considered there was abnormal illness behaviour and maximisation; whether alternative treatments exhausted; Held - proposed surgery is reasonably necessary medical treatment; respondent to pay the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.
Decision date: 14 September 2021| Member: Rachel Homan
Claim for permanent impairment compensation arising from assault which took place adjacent to the workplace; whether assault constituted a workplace injury (section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and if so whether applicant’s employment was a substantial contributing factor to the injury (section 9A of the 1987 Act); factual dispute as to whether applicant was working at time of assault; Held - the applicant was working at the time of the assault; the evidence supports his contention that, contrary to the evidence of the first respondent, he often worked into the evening, consistent with the time at which the assault took place; the applicant’s employment was a substantial contributing factor to his injury; the applicant consciously made an effort to remove his assailant from the café in an attempt to remove any risk of harm to its patrons; as such, his employment was causally connected with the injury suffered in the assault; the medical dispute between the experts in the matter relates to the degree of whole person impairment arising from the assault, not whether there were any injuries at all; as such, having found the injury occurred in the course of the applicant’s employment, that dispute is a matter for a medical assessor, not a Member of the Commission; matter remitted to the President for referral to a Medical Assessor to determine the whole person impairment, if any, to the applicant’s cervical and lumbar spines.
Decision date: 15 September 2021| Member: Cameron Burge
Applicant claimed cost of left rotator cuff repair and biceps tenodesis, pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act); accepted injury to left shoulder; respondent disputed that proposed treatment was reasonably necessary; statistically poorer outcomes of surgery in workers’ compensation population; consideration of Diab v NRMA Ltd; Held - the proposed surgery is reasonably necessary as a result of injury; award for the applicant for the cost of surgery and associated costs, pursuant to section 60(5) of the 1987 Act.
Decision date: 15 September 2021| Member: Kerry Haddock
Accepted injuries to the bilateral shoulders; whether the applicant suffered psychological condition as a consequence of the accepted bilateral shoulder injuries; disputed travel expenses between the Central Coast and metropolitan Sydney for treatment; section 60(2B) of the Workers Compensation Act 1987 (1987 Act); Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), Munce v Thomson Cool Rooms Pty Ltd, Stewart v New South Wales Police Service and NSW Police Force v Hahn considered and applied; Held - the applicant suffered a consequential psychological condition as a result of the accepted injuries to his bilateral shoulders in the course of his employment with the respondent; the travel expenses claimed by the applicant necessitated more travel than was reasonably necessary to obtain the treatment or service within the meaning of section 60(2B) of the 1987 Act.
Decision date: 15 September 2021| Member: Anthony Scarcella
Workers Compensation Medical Appeal Panel Decisions
Appeal by worker against finding of 13% whole person impairment; whether section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction was excessive; whether adequate reasons given for the deduction; Held – Medical Assessor (MA) erred in failing to give adequate reasons for a deduction of 50% of one part of the lower extremity assessment; Drosd v Workers Compensation Nominal Insurer applied; the deduction was not properly particularised in the Table 2 certificate; the MA had included a 20% lower extremity assessment for a condition that the appellant had not suffered; Medical Assessment Certificate revoked, but new certificate issued in the same amount.
Decision date: 10 September 2021 | Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr Brian Noll | Body system: Left lower extremity and lumbar spine
Appellant had a total knee replacement; appellant submitted that the Medical Assessor (MA) erred in failed to assess the appropriate rating for pain; failed to consider deductions to the rating arising from flexion contracture, extension lag and tibio-femoral alignment; Held -the evidence supported the findings and assessment of the MA; Medical Assessment Certificate confirmed.
Decision date: 13 September 2021 | Panel Members: Member Deborah Moore, Dr Drew Dixon and Dr Margaret Gibson | Body system: Left lower extremity
Appellant employer claims that the Medical Assessor (MA) assessed respondent worker’s undisputed right hernia injury, in part, by reference to restriction in movement of the right hip claimed to have been caused by scarring from surgery; the digestive system (hernia) was the only body system/part referred for assessment, not the right upper extremity (hip); finding that the MA had assessed a body system/part not referred to him, and that this constituted a demonstrable error; Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW), State of New South Wales v Bishop and O’Callaghan v World Energy Corp Ltd referred to; Held - on assessment of the medical evidence, and without the benefit of re-examination of the respondent worker as he had passed away before such re-examination could take place, the Medical Appeal Panel found that the assessment of the digestive system (hernia) of the MA was correct; Drosd v Workers Compensation Nominal Insurer and Roads and Maritime Services v Wilson referred to; Medical Assessment Certificate (MAC) revoked and new MAC issued.
Decision date: 14 September 2021 | Panel Members: Member Brett Batchelor, Dr John F W Garvey and Dr John Dixon-Hughes | Body system: Digestive System
Worker appeals assessment by Medical Assessor (MA) of lumbar spine following surgery; alleges error in failure to find radiculopathy and surgery at a second level for the purpose of Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and that self-care was impaired for the purpose of assessment of activities of daily living (ADLs); Held - MA did not err in determining that the definition of radiculopathy in the Guidelines was not met or that the surgery was undertaken at one level; no demonstrable error in respect of ADLs; Medical Assessment Certificate confirmed.
Decision date: 15 September 2021 | Panel Members: Member Paul Sweeney, Dr Phillipa Harvey-Sutton and Dr John Ashwell | Body system: Lumbar spine and scarring
The medical dispute involved the assessment of the respondent’s permanent impairment from psychiatric injury; appellant submitted Medical Assessor (MA) erred with respect to his assessment because he did not give proper consideration to the evidence relating to, firstly, the respondent’s impairment in self-care and personal hygiene and in social functioning, secondly the extent to which a prior illness contributed to the respondent’s present impairment, and lastly, whether the respondent had achieved maximum medical improvement; Held - the Appeal Panel held that it was obvious from the Medical Assessment Certificate (MAC) that the MA had regard to all the evidence and that in his explanation for his assessment he referred to all parts of the evidence that were germane to his assessment; MAC upheld.
Decision date: 15 September 2021 | Panel Members: MemberMarshal Douglas, Professor Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/Psychiatric
Worker with psychological injury alleged error in the assignment of Class 2 in the psychiatric impairment rating scale (PIRS) scale for concentration, persistence and pace and in respect of the deduction of 1/10th for a pre-existing psychological condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and/or Guideline 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; alleged that the consideration of the worker’s employment tasks for the purpose of assessing concentration impermissible; Held - Panel held that this did not constitute error in the context of the evidence including the physical examination of the Medical Assessor; Ballas v Department of Education (State of NSW) distinguished; Marks v Secretary, Department of Communities and Justice (No. 2) considered and applied in respect of alleged error in deduction for pre-existing condition; Medical Assessment Certificate confirmed.
Decision date: 15 September 2021 | Panel Members: Member Paul Sweeney, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Merit Review; dispute about statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); whether the cost of treatment and care was reasonable for the purposes of section 3.24(1)(a) of the MAI Act; the claimant received approval for an MRI to two distinct body parts; dispute over the cost of the MRI; whether the cost of MRI scan is reasonable and whether the correct fee was claimed; the application of AMA Rates for treatment not provided at a hospital; whether an MRI is ‘treatment’ as defined in the Act; and whether a claimant’s duty to mitigate loss extends to assessing whether the cost of the treatment is excessive or unreasonable; Held – the reviewable decision is set aside; insurer to pay the correct fee for the MRI; an MRI is treatment; no duty under section 6.5 of the MAI Act for a claimant to determine whether the cost of pre-approved treatment is unreasonable or excessive.
Decision date: 3 September 2021| Merit Reviewer: Michael Sofoulis
Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); self-employed driver working for three ride-share companies; employed for less than 12 months prior to accident; pre-accident weekly earnings (PAWE) calculation based on claimant’s gross earnings less business expenses but before tax; application of Schedule 1 clause 4(2)(a) of the MAI Act; PAWE correctly calculated; Held – the reviewable decision is affirmed.
Decision date: 14 September 2021| Merit Reviewer: Michael Sofoulis
Motor Accidents Merit Review Panel Decision
Merit Review Panel; weekly payments of statutory benefits; insurer disputed the claimant was an “earner”; Merit Reviewer determined that “earner” dispute was not a merit review matter; whether a dispute about “earner” is a merit review matter; whether the claimant is an “earner” as defined in Schedule 1 clause 2 of the Motor Accident Injuries Act 2017 (MAI Act); Held - resolving the question of whether an injured person is an “earner” is an essential step in determining the amount of weekly payments of statutory benefits payable under Division 3.3 of the MAI Act; a dispute in relation to “earner” falls within Schedule 2 clause 1(a) of the MAI Act and is a merit review matter; claimant is an “earner”; merit review decision set aside; matter remitted to the insurer to determine the claimant’s entitlements to weekly payments of statutory benefits in accordance with sections 3.6 and 3.7 of the MAI Act.
Decision date: 9 September 2021| Merit Review Panel: Maurice Castagnet, Brett Williams and Ray Plibersek
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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