Legal Bulletin No. 37
This bulletin was issued on 12 November 2021
Issued 12 November 2021
Welcome to the thirty-seventh 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; Motor Accident Injuries Act 2017; State Insurance Regulatory Authority; Dispute Resolution Service; Medical Assessor’s Certificate; Review Panel’s Certificate; minor injury; denial of procedural fairness; jurisdictional error; failure to exercise jurisdiction; failure to conduct new assessment; irrelevant consideration; failure to respond to a clearly articulated argument; failure to provide reasons; failure to inquire.
Decision date: 10 November 2021 | Before: Harrison AsJ
WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987; whether the proposed surgery is reasonably necessary as a result of injury; Diab v NRMA Ltd  NSWWCCPD 72 considered and applied.
Decision date: 4 November 2021 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; liability declined on the basis accident was not a motor accident within section 1.4 of the MAI Act and in the alternative that if there was an injury the Act is precluded from applying under section 1.9 on the basis the injury arose ‘gradually from a series of incidents’; claimant using a wheelchair; alleged injury due to alleged failure to properly secure wheelchair in a wheelchair accessible taxi; injury occurred during course of journey of up to 20 minutes in duration; Held - accident was a motor accident and injury did not arise gradually from a series of incidents; consideration of Owen v NSW, Khaya v Container Terminals Australia Ltd and Hooker v Gilling.
Decision date: 22 October 2021| Member: Belinda Cassidy
Settlement approval; 71 year old female passenger injured in head on collision; right wrist fracture, minimally displaced fracture of L2 vertebra, fracture of L3 vertebra, fracture of great left toe, and fracture of the sternum; admitted to hospital for 8 days; claimant and insured driver both residing in Queensland; jurisdiction of Personal Injury Commission considered; 11% whole person impairment assessment; possible degeneration of right wrist leading to osteoarthritis of the joint in 10+ years; RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece considered; Held - proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 25 October 2021| Member: Alexander Bolton
Whether the motor accident was caused mostly by the fault of the claimant under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act); cessation of statutory benefits after 26 weeks as claimant at fault; single vehicle accident; claimant the rider of a motorcycle that lost control on Bruxner Highway near Casino; claimant alleged he was not at fault and instead blamed state of the road; consideration of definition of motor accident under sections 1.4 and 1.9 of the MAI Act; Held- found claimant at fault and if it were the case that the condition of the road was the sole cause of the accident then the MAI Act would not apply.
Decision date: 26 October 2021| Member: Elizabeth Medland
Workers Compensation non-Presidential Member Decisions
Significant non-work-related injury to lower back at home during overall period of work; Held – on the facts applicant’s work generally very heavy and absence of complaint to medical practitioners before this event relevant but not necessarily determinative; Palise v ANZ Banking Group Ltd and Booth v FourMeninaPub Pty Limited considered; effects of non-work-related incident subsided over time with applicant able to resume heavy work without any complaint for about 14 months; nature of applicant’s work the main contributing factor to aggravation (etc) pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; matter remitted to President for referral to Medical Assessor to determine whole person impairment.
Decision date: 28 October 2021| Member: Philip Young
Claim for weekly benefits and medical expenses; fall at work; worker claimed injury to the lumbar right hip; pre-existing degenerative osteoarthritis in the right hip; whether worker suffered section 4(ii)(b) of the Workers Compensation Act 1987 disease injury; worker did not disclose history of pain in the right hip and previous x-rays to four treating and assessing doctors; worker’s oral evidence that he did or would have disclosed that history not accepted; Held - finding that worker’s evidence was not reliable; opinions of the doctors on whom the worker relied were based on inaccurate history; given unreliability of the worker’s evidence, his subjective evidence of worsening symptoms could not be relied on; award for the respondent.
Decision date: 29 October 2021| Member: Jill Toohey
Claim for weekly payments of compensation and an order for the respondent to meet cost of left carpal tunnel release surgery; worker claims injury to the lumbar spine, cervical spine, left upper limb (in particular the left wrist and shoulder) and left lower limb by way of a disease injury pursuant to section 4(b)(ii) of the Workers Compensation Act (1987 Act) while working as a school cleaner; reference to AV v AW and Kelly v Western Institute NSW TAFE Commission; Held – worker sustained disease injury to her lumbar spine and left carpal tunnel as provided for by section 4(b)(ii) of the 1987 Act; award for the respondent for the claims of injury to the cervical spine, left upper limb (except for the left carpal tunnel) and left lower limb; worker has had no current work capacity since 25 June 2020 and award of weekly payments of compensation made accordingly; left carpal tunnel release surgery is reasonably necessary as a result of the injury to the worker and order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act.
Decision date: 29 October 2021| Member: John Isaksen
Claim for weekly benefits for short, closed period and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses in respect of frank incident involving the left knee and ankle; the respondent does not dispute that the applicant worker was involved in an incident involving the left ankle and knee on the date of injury claimed, but disputes the nature of the left knee injury; detailed examination of the Safety Incident Report created on the date of injury, the applicant’s evidence, reports of treating practitioners, and the only Independent Medical Examination report in evidence, tendered by the applicant; Held - finding that the applicant had not discharged the onus of proof on her in respect of the injury to her left knee she claims to have suffered on the date of the frank incident; award for the respondent in respect of the applicant’s claim for weekly benefits for the closed period and section 60 of the 1987 Act expenses.
Decision date: 31 October 2021| Member: Brett Batchelor
Order relating to reasonable necessity for surgery; Held – the proposed surgery is reasonably necessary.
Decision date: 1 November 2021| Member: Elizabeth Beilby
Accepted right shoulder injury but applicant claims additional left shoulder consequential condition; on the facts and noting Mason v Demasi, Palise v ANZ Banking Group Limited and Kooragang Cement Pty Limited v Bates and the existence of only one fleeting complaint of left shoulder problems over several years despite numerous opportunities; Held - applicant has not discharged the onus; award for the respondent.
Decision date: 1 November 2021| Member: Philip Young
Workers Compensation Medical Appeal Panel Decisions
Worker suffered injury when she opened a gardening product and began to cough; previous award of compensation; choice of Medical Assessor (MA); diagnosis by MA different to injury as pleaded; Bindah v Carter Holt Harvey Woodproducts discussed; assessment by analogy; Held – Medical Assessment Certificate confirmed.
Decision date: 29 October 2021 | Panel Members: Member Catherine McDonald, Dr Mark Burns and A/Prof Christopher Grainge | Body system: Respiratory system
Allegation of demonstrable error and application of incorrect criteria with respect to deduction of 2/5 pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); injury accrued by gradual process which commenced in October 2007 with a deemed date of injury in 2014; appellant submitted that Approved Medical Specialist (10 December 2020) did not consider or report the date at which he considered the existence of a pre-existing condition or abnormality constituting a failure to give reasons; further ground alleged with respect to assessment of 2% whole person impairment (WPI) in respect of activities of daily living; Held - the injury started to accrue in October 2007; no evidence of previous injury or pre-existing condition or abnormality at that time; Cullen v Woodbrae Holdings Pty Ltd applied; assessment of 2% WPI in respect of activities of daily living was available on the evidence, including the history reported by the appellant upon examination; error demonstrated in respect of section 323 issue; Medical Assessment Certificate revoked; finding of no previous injury, pre-existing condition or abnormality.
Decision date: 1 November 2021 | Panel Members: Member William Dalley, Dr Brian Noll and Dr James Bodel | Body system: Cervical spine
Psychological injury; Psychiatric Injury Rating Scale categories; Jenkins v Ambulance Service of NSW, Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed.
Decision date: 2 November 2021 | Panel Members: Member Catherine McDonald, Dr Michael Hong and Dr Julian Parmegiani | Body system: Psychological/psychiatric
Industrial deafness; complaint on appeal that Medical Assessor (MA) did not include frequencies below 2000kHz and did not include allowance for severe tinnitus; the MA’s approach is the same as that of the other experts whose opinions were in evidence; considering the nature and duration of his occupational noise exposure and the nature and extent of all the hearing losses at 0.5 – 4 kHz, it was open to the MA to find that the losses at 1500 Hz and below are incompatible with noise induced hearing loss; this is because industrial deafness typically causes a bilaterally symmetrical sensorineural hearing loss from low to high tones with relative sparing of the low tones in comparison to the high tones, with the maximal loss occurring at 4000 and 3000 Hz; thus in industrial deafness the hearing loss at 1500 Hz would be expected to be significantly less severe than the losses at 2000 Hz, 3000 Hz and 4000 Hz, and this is not the case in the MA’s audiogram, and or in the other audiograms obtained by the other experts; the Panel can discern no error in the MA’s approach in basing his assessment on the losses at 2000Hz to 4000Hz inclusive; the failure to include an allowance for severe tinnitus was open to the MA on the history and clinical evaluation by the MA on the day of assessment; Held - the Appeal Panel could not discern error in the assessment by the MA; Medical Assessment Certificate confirmed.
Decision date: 3 November 2021 | Panel Members: Member Jane Peacock, Dr Joseph Scoppa and Dr Henley Harrison | Body system: Hearing
Motor Accidents Merit Review Decisions
Merit Review; Claimant’s back was injured while transported in the back of a police wagon in custody; amount of weekly payments under section 3.7 of the Motor Accident Injuries Act 2017 (MAI Act); what definition in clause 4 in Schedule 1 of pre-accident weekly earnings should apply to determine the Claimant’s weekly earnings; Claimant worked in a higher paying casual job for 10 weeks prior to motor accident; Held - Claimant is entitled to weekly payments of statutory benefits during the second entitlement period under section 3.7 and sub-clauses 4(2)(b) and 4(3) of Schedule 1 of the MAI Act; Claimant’s earnings to be calculated on the basis of higher earnings in a new higher paying job with a new employer; legal costs of nil; no exceptional circumstances.
Decision date: 22 October 2021 | Merit Reviewer: Ray Plibersek
Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); sole trader; whether future projected increase in profits relevant; whether adjustments can be made for fluctuation in business expenses or unusually high business expenses in the relevant pre-accident period; application of Schedule 1, clause 4(1) of the MAI Act; PAWE correctly calculated; Held – the reviewable decision is affirmed.
Decision date: 29 October 2021 | Merit Reviewer: Katherine Ruschen
Merit Review; dispute about the amount of ‘reasonable funeral expenses’ under section 3.4 of the Motor Accident Injuries Act 2017; Held - insurer’s decision affirmed; insurer’s total payment of $32,280 for funeral expenses was reasonable; what is ‘reasonable’ depends on a large range of circumstances which cannot be definitively enumerated; what is reasonable will vary in every case and depend upon the circumstances of each case.
Decision date: 29 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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