Legal Bulletin No. 34
This bulletin was issued on 22 October 2021
Issued 22 October 2021
Welcome to the thirty-fourth 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
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant now 94 years of age; injured as pedestrian; multiple fractures to the clavicle, humerus, ribs, pelvis, hips, tibia and fibula and life-threatening internal bleeding; surgery later required for unrecognised but accident-related penetrating scalp wound with suppurating ulcer and sinus; pre-accident the claimant was independent in all household tasks and able to drive independently; post-accident capacity for domestic tasks limited; ongoing disability to left shoulder and left leg; no longer able to mobilise without walking stick or wheel walker; regained drivers licence but only able to drive short distances; age of claimant relevant consideration; Held – claimant sustained serious injury; claimant’s independence and relatively active lifestyle curtailed as a result of ongoing disability; settlement for non-economic loss approved.
Decision date: 12 July 2021| Member: Susan McTegg
Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant under legal incapacity as result of injury; wife appointed as appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 95 years of age; injured as pedestrian; at date of accident 92 years of age and fully independent; background history of significant medical comorbidities; accident caused traumatic brain injury; hospitalised for four months; now requires care and resides in aged care accommodation; requires walker for mobility; evidence of confusion; poor memory, episodes of inappropriate behaviour; lack of insight; verbal aggression, and resistance to help with care; underlying dementing process accelerated by significant head injury; Held – settlement approved; claimant sustained serious traumatic brain injury; loss of capacity to live independently with wife; claimant now requires full time care; cognitive impairment has impacted activities of daily living, relationships and ability for social interaction.
Decision date: 23 July 2021| Member: Susan McTegg
Miscellaneous claims assessment; wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; rider of motorcycle on powerline track; single vehicle accident; wheel of motorcycle caught in rut and claimant thrown from motorcycle; Held - claimant not wholly at fault; riding cautiously; rut not clearly visible; Podrebersek v Australian Iron and Steel applied; claimant conceded whilst looking he did not look directly in front of his wheel; claimant guilty of contributory negligence; claimant not mostly at fault; contributory negligence not greater than 61%; claimant’s contributory negligence mere inadvertence; contributory negligence assessed at 20%; claimant self-represented; no costs to be assessed.
Decision date: 23 July 2021| Member: Susan McTegg
Miscellaneous claims dispute brought pursuant to Schedule 2, clause 3(g) of the Motor Accidents Injuries Act 2017 (MAI Act), as to whether the insurer is entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident in accordance with section 3.38 of the MAI Act; correct statutory approach to the assessment required by Schedule 2, clause 3(g) of the MAI Act; following vehicle failed to keep a safe distance; attempt to overtake turning vehicle executing a right hand “hook turn”; whether the act of executing a “hook turn” was a failure to take reasonable care or “mere inadvertence, inattention or misjudgement”; not reasonably foreseeable that the following driver would understand that by this manoeuvre the claimant no longer intended to turn right and, more importantly, would try and overtake; duty to exercise reasonable care was discharged by indication of intention to turn right for 7 seconds; Held - accident solely caused by insured driver’s breaches of duty of care.
Decision date: 29 September 2021| Member: Bridie K Nolan
Workers Compensation non-Presidential Member Decisions
Application for a declaration that left total knee replacement surgery reasonably necessary; whether respondent medico-legal expert correct that onset of osteoarthritis, being familial and inherited, was not work-related; whether applicant statement relating to events of many years ago reliable without contemporaneous support; whether 1995 injury caused the onset of arthritis or made asymptomatic condition symptomatic; Held - injury was post-traumatic onset of osteoarthritis; applicant’s evidence regarding period of self-managed treatment acceptable in view of his character and background of earlier left knee arthroscopies; respondent medico-legal expert’s assumptions unsupported by evidence; finding of injury made, declaration that treatment reasonably necessary, and order for respondent to pay the costs of the treatment.
Decision date: 6 October 2021| Member: John Wynyard
Application for assessment by a Medical Assessor (MA) in respect of a work injury damages threshold dispute; whether injury to cervical spine in injurious event; lack of contemporaneous evidence of neck injury or symptoms; subsequent motor vehicle accidents; Department of Education and Training v Ireland considered; Held - award for the respondent with respect to allegation of injury to cervical spine; matter remitted to President for referral to MA to assess undisputed body parts.
Decision date: 7 October 2021| Member: Rachel Homan
Provisional payments of weekly compensation for psychological injury; statutory interpretation of section 267 of the Workplace Injury Management and Workers Compensation Act 1998, part 2 of the Workers Compensation Guidelines and section 11A of the Workers Compensation Act 1987; what constitutes a “reasonable excuse” of an injury not being work related for the purpose of commencing provisional payments; Held - a section 11A defence does not constitute a reasonable excuse for the injury not being work related as it is a separate causal matter after a relevant injury is established as being work related.
Decision date: 8 October 2021| Member: Michael Wright
Claim pursuant to section 60 of the Worker’s Compensation Act 1987 for the costs of an incidental to a proposed lumbosacral fusion surgery; whether surgery “reasonably necessary”; concurrent psychological condition and treatment recommended; whether radiological indications for the proposed surgery; Held - pathological explanation for the applicant’s symptoms found by applicant’s surgeon and expert; Diab v NRMA Ltd considered and applied; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 8 October 2021| Member: Rachel Homan
Claim for cost of left tibialis posterior tendon reconstruction; applicant employed as a pool technician; whether applicant fell whilst at the home of a customer; whether applicant injured his left ankle in the fall; whether applicant sustained an injury to which his employment was a substantial contributing factor; whether employment was the main contributing factor to the aggravation of a pre-existing condition; whether applicant gave notice of injury as soon as possible after he became aware of it; whether applicant’s failure to make a claim for compensation within six months is excused by ignorance; Held - finding that applicant gave notice of injury; finding that delay in making claim for compensation excused by ignorance; applicant sustained a personal injury to which his employment was a substantial contributing factor; applicant sustained a disease injury to which his employment was the main contributing factor; no dispute among the doctors that proposed treatment is reasonably necessary treatment of the applicant’s left ankle; respondent to pay the reasonably necessary costs of the proposed treatment.
Decision date: 11 October 2021| Member: Jill Toohey
Reconsideration of aggregation; previous whole person impairment payment arising from nature and conditions of employment not frank injury; current claim based on nature and conditions of employment; Held - the matter is remitted to the President to be referred to a Medical Assessor for assessment of the cervical spine (further assessment- scarring) and the lumbar spine.
Decision date: 11 October 2021| Member: Elizabeth Beilby
Application for declaration and orders pursuant to section 60(5) of the Workers Compensation Act 1987; claim for arthroscopy for right knee, PRP injections to left wrist, and facet joint blocks to the cervical spine; whether inconsistencies in applicant’s earlier statement regarding an earlier claim prejudiced his application; whether referral to unserved material rendered respondent’s medico-legal expert inadmissible; regulation 44 of the Workers Compensation Regulation 2016 applicable to respondent’s qualified specialists; Held - inconsistencies relied on irrelevant to issues before Commission; objective evidence of need for treatment from many medical practitioners; respondent medico-legal expert report admitted as probative value a question of weight; respondent expert rejected as to whether the treatments were reasonably necessary; award applicant.
Decision date: 12 October 2021| Member: John Wynyard
Claim for weekly compensation and section 60 expenses; psychological injury accepted for the purposes of sections 4 and 11A(3) of the Workers Compensation Act 1987; whether injury wholly or predominantly caused by reasonable action with respect to transfer; Canterbury Bankstown Council v Gazi and Manly Pacific International Hotel v Doyle considered; Held - respondent has not demonstrated that actions with respect to duration of the temporary transfer and the applicant’s ability to return to her original role were reasonable in all the circumstances; section 11A(1) defence not made out; respondent to pay weekly compensation and section 60 expenses.
Decision date: 12 October 2021| Member: Rachel Homan
Claim for medical and related treatment; the respondent disputed the applicant sustained work-related injury to his low back and disputed the applicant’s claim for proposed consultation with a neurosurgeon and proposed consultation with a physiotherapist; Held – the applicant sustained injury to his low back in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition with his employment with the respondent being the main contributing factor to injury; the applicant has an entitlement to costs associated with the proposed consultation with a neurosurgeon payable under section 60 of the Workers Compensation Act 1987 resulting from the injury he sustained to his low back; award for the respondent relevant to the applicant’s claim for proposed consultation with a physiotherapist.
Decision date: 12 October 2021| Member: Jacqueline Snell
Claim for weekly benefits and permanent impairment compensation by worker with accepted psychological injury; respondent denies liability on the basis of “discipline” and “dismissal” in section 11A(1) of the Workers Compensation Act 1987 and disputes that worker is incapacitated by reason of the injury; at the arbitration hearing respondent criticises the reliability of the worker’s written and oral evidence; Held - although aspects of the worker’s evidence was unacceptable the respondent had not established that its actions with respect to discipline etc were reasonable; Northern NSW Local Health Network v Heggie considered; disciplinary process characterised by lack of procedural fairness; allegations of fraud not proven to the standard required by Briginshaw v Briginshaw; award for closed period of weekly compensation; permanent impairment claim referred to Medical Assessor for determination.
Decision date: 12 October 2021| Member: Paul Sweeney
Claim for weekly benefits and medical expenses; applicant claimed to have sustained injury to cervical and lumbar spines as a result of disease pursuant to section 4(b)(i) or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); injury in dispute; applicant sustained injury at home 11 days later; respondent maintained that any incapacity for work or necessity for medical treatment resulted from injury at home; consideration of Nguyen v Cosmopolitan Homes, State Government Insurance Office of NSW v Oakley, Government Insurance Office of NSW v Aboushadi, EMI (Australia) Ltd v Bes, Seltsam Pty Ltd v McGuiness, Military Rehabilitation and Compensation Commission v May, AV v AW, Wollongong Nursing Home Pty Ltd v Dewar and Lawarra Nominees Pty Ltd v Wilson; Held - the applicant sustained injury to her cervical and lumbar spines, pursuant to section 4(b)(ii) of the 1987 Actand the further injury resulted from the subsequent incident at home, which would not have occurred had the applicant not already been injured; the applicant has had no work capacity at all relevant times; award for the applicant for weekly benefits and medical expenses.
Decision date: 13 October 2021| Member: Kerry Haddock
Workers Compensation Medical Appeal Panel Decisions
Worker seeks a determination as to whether the condition of her lumbar spine had reached maximum medical improvement; worker suffered injury to her back on 20 October 1998 and underwent spinal decompression surgery on 19 February 2001 and 21 January 2021; Medical Assessor (MA) determined that the worker had reached maximum medical improvement after considering the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 Guidelines 1.15 and 1.16; worker alleged that MA erred in that she had not been discharged from the care of her treating surgeon, continued to suffer referred pain in her leg, and exhibited neurological signs in her lower limbs on examination; Medical Assessment Certificate (MAC) confirmed; Held - there was no demonstrable error in the MAC and no opinion evidence to support a contrary view.
Decision date: 7 October 2021 | Panel Members: Member Paul Sweeney, Dr Brian Stephenson and Dr Mark Burns | Body system: Lumbar spine
Matter referred to the Medical Assessor (MA) for assessment of whole person impairment (WPI) of left lower extremity, right lower extremity, right upper extremity, scarring and upper digestive tract; Held - Appeal Panel concluded that the MA made a demonstrable error in stating Member Haddock had accepted that Ms Palmer had an upper digestive tract impairment when she had, in fact, found that there was a consequential condition of the upper digestive tract; however, the Appeal Panel on reviewing the evidence made the same assessment of WPI as the MA and the Medical Assessment Certificate was confirmed.
Decision date: 7 October 2021 | Panel Members: Member Carolyn Rimmer, Dr Richard Crane and Dr John Garvey | Body system: Left lower extremity, right lower extremity, right upper extremity, scarring (TEMSKI) and upper digestive tract
Worker suffered a penetrating injury to his thigh resulting in dissection of the femoral artery; parties agreed Medical Assessor (MA) erred in assessment of femoral nerve dysfunction; MA made an allowance of 2% under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 paragraph 1.32 for the effects of that treatment; employer argued that aspirin was analgesia taken for pain relief; worker was prescribed low dose aspirin to reduce the risk of clotting; Held - allowance was appropriate; Medical Assessment Certificate revoked.
Decision date: 12 October 2021 | Panel Members: Member Catherine McDonald, Dr John Ashwell and Dr Gregory McGroder | Body system: Left lower extremity and scarring (TEMSKI)
Psychological injury; appellant alleged error in the assessment under four categories under the Permanent Impairment Rating Scale (PIRS) namely Self Care and Personal hygiene, Social and Recreational Activities, Travel 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 NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; Medical Assessment Certificate confirmed.
Decision date: 12 October 2021 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological/psychiatric
Acoustic trauma; Medical Assessor could not obtain audiogram and relied on other expert’s findings; did not complete Medical Assessment Certificate (MAC) as required; Held - Appeal Panel satisfied as to error and that re-examination was required; MAC revoked.
Decision date: 13 October 2021 | Panel Members: Member Jane Peacock, Dr Robert Payten and Dr Henley Harrison | Body system: Hearing
Psychological injury; obligation to give reasons; Vitaz v Westform (NSW) Pty Ltd and State of New South Wales v Kaur considered; assessment in the Psychological Impairment Rating Scale categories; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; Held - Medical Assessment Certificate confirmed.
Decision date: 13 October 2021 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Julian Parmegiani | Body system: Psychological/psychiatric
Motor Accidents Merit Review Decision
Medical Review Panel; reasonable and necessary spinal surgery; dispute about legal costs and expenses by the claimant; claim for exceptional circumstances legal costs; section 8.10(4)(b) of the Motor Accidents Injuries Act 2017 (MAI Act); insurer submitted exceptional circumstances did not exist only allowed regulated legal costs ; AAI Limited v Moon and San v Rumble considered; Held - finding that exceptional circumstances exist; volume and complexity of the medical material; difficulty in obtaining instructions from claimant with diagnosed depression; claimant entitled to recover about 40% of legal costs claimed as reasonable and necessary; consideration of objects of the MAI Act.
Decision date: 7 October 2021| Merit Reviewer: 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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