Legal Bulletin No. 7
This bulletin was issued on 16 April 2021
Issued 16 April 2021
Welcome to the 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.
Court of Appeal Decision
WORKERS COMPENSATION: compensation for non-economic loss; determining degree of permanent impairment; worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents; whether WPI resulting from injuries should be aggregated; injuries from first incident materially contributed to injuries in later incidents; all injuries “resulted from” and “arose out of” first incident; proceedings before Commission; appeal against decision of presidential member in point of law; whether presidential member erred in construing section 322(2) and (3) of the 1998 Act; error of law established and issue in question potentially a matter of some significance; leave to appeal granted.
Decision date: 12 April 2021 | Before: Macfarlan JA, McCallum JA and Simpson AJA
Motor Accidents non-Presidential Member Decisions
Claims assessment; dispute about the amount of damages to be paid to the applicant under section 7.36 of the Motor Accident Injuries Act 2017; riding a bicycle; insurer wholly admitted liability; multiple rib fractures, fracture through the right scapula, full thickness tear of the subscapularis tendon, torn hamstring tendon, severely affected psychologically; not able to cycle, had ceased almost all aspects of work and suffered from severe upper body restriction; crutches and a walking stick for about 12 months; working with restricted light duties in a sheltered environment; earning capacity assessment occupations not involving physical work; Deed of Agreement for the sale and purchase of shares in the business; assets of the business; Held- applicant entitled to non-economic loss damages and economic loss damages; both a director and employee of the business; loss in value of the shares of the company; no allowance made for sale of the motor vehicle.
Decision date: 29 March 2021 | Principal Member: John Harris
Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the applicant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of benefits incurred more than 26 weeks as applicant was mostly at fault; collision reconstruction report; applicant crossed two of three lanes of the roadway and was struck in the third lane; pushing a large red electric bicycle; insured driver being unable to take evasive action; applicant failed to use an available pedestrian crossing; placed herself in a position of peril; insurer alleged 70% contributory negligence; did not see the insured driver’s vehicle prior to the accident; COPS event report; factual investigation report; apportionment of culpability; the driver should take greater care for the pedestrian and the pedestrian should take greater care for their own safety; Held- applicant’s evidence is inconsistent; applicant’s contribution to the motor accident significantly outweighed the insured driver’s contribution; motor accident caused mostly by the fault of the applicant; recovery of legal costs; exceptional circumstances not satisfied; applicant entitled to the payment of legal costs at the regulated maximum in each dispute.
Decision date: 29 March 2021 | Member: Anthony Scarcella
Workers Compensation non-Presidential Member Decisions
Psychological injury; claim for weekly benefits; fact of workplace injury not in issue; respondent raises defence pursuant to section 11A(1) in respect of performance appraisal; Held- the applicant’s perception of real events is sufficient to cause psychological injury; Attorney General’s Department v K followed; in this matter, there were real issues in the workplace regarding overwork, long hours, interpersonal issues and performance appraisal over a lengthy period of time; the evidence does not disclose the respondent’s actions with respect to performance appraisal wholly or predominantly caused the applicant’s injury; rather, there were multiple work-related factors which caused the injury in question; the defence pursuant to section 11A(1) fails, and the respondent is ordered to pay the applicant weekly compensation as claimed, given there is no issue as to the preinjury earnings, and the evidence discloses on balance that the applicant remains totally incapacitated.
Decision date: 6 April 2021 | Member: Cameron Burge
Lump sum claim; respondent asserted that effects of agreed injury to lumbar spine had ceased and subsequent lumbar symptoms after incident walking dog was a novus actus; Held- award for applicant and referral to medical assessor for assessment of permanent impairment from work injury; finding that it was not necessary for worker to plead nature and conditions of employment claim as finding effects of work injury had not ceased.
Decision date: 6 April 2021 | Principal Member: Josephine Bamber
Claim for permanent impairment compensation and medical expenses as a result of injury to right upper extremity (right shoulder) and lumbar spine; respondent relied on section 261 of the 1998 Act; injury to lumbar spine disputed; injurious event to right shoulder conceded, injury disputed; consideration of Castro v State Transit Authority (NSW); Held- claim was made within time provided for by section 261 of the 1998 Act; applicant sustained injury to his right shoulder; award for the respondent with respect to the claim for injury to the lumbar spine; medical dispute may not be referred to Medical Assessor as permanent impairment as a result of injury to right shoulder is not greater than 10%.
Decision date: 6 April 2021 | Member: Kerry Haddock
Worker employed by respondent for 28 years claims cost of proposed total hip replacement; where conflicting evidence as to nature of worker’s employment; where worker ceased to perform work, which could aggravate arthritis several years before his hip became symptomatic; where applicant’s medical case assumes an incorrect history; Held- finding that applicant had not established injury; award for the respondent.
Decision date: 6 April 2021 | Member: Paul Sweeney
Claim for the cost of proposed L1/2 lumbar laminectomy and associated treatment; dispute as to the reasonable necessity of the proposed treatment, including whether there is evidence of nerve impingement and compression; medical opinion that the applicant is pain-focused and demonstrated pain behaviour, which was not found by the treating specialist; Diab v NRMA Ltd and Rose v Health Commission (NSW) considered; Held- the proposed treatment is reasonably necessary medical treatment as a result of the injury; award for the applicant.
Decision date: 7 April 2021 | Member: Kerry Haddock
Worker injured her right wrist, right hip and lumbar spine when she fell at work on 22 May 2014 and had suffered consequential condition to the left wrist and later to the cervical spine in a fall on 13 August 2018; dispute as to whether surgery, namely a left‑sided C6/C7 foraminotomy performed by Dr Shivalingam was reasonably necessary as a result of the fall on 8 August 2018; Rose v Health Commission, Diab v NRMA Ltd, Migge v Wormald Bros Industries, Cluff v Dorahy Bros (Wholesale) Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman considered and applied; Held- that the surgery carried out with Dr Shivalingam was reasonably necessary as the result of the fall on 13 August 2018.
Decision date: 7 April 2021 | Member: Carolyn Rimmer
The applicant brought a claim for lump sum death benefit payable under section 25(1)(a) of the 1987 Act and funeral expenses payable under section 26 of the 1987 Act, together with interest and costs; the respondent disputed the deceased worker (who was the applicant’s wife) suffered injury arising out of or in the course of her employment with the respondent which resulted in her death; Held- the cause of the deceased worker’s death was Takotsubo Syndrome, which resulted from psychological injury sustained in the course of the deceased worker’s employment with the respondent; the applicant was partially dependent on the deceased worker at the time of her death; the respondent is to pay to the applicant the lump sum death benefit payable under section 25(1)(a) of the 1987 Act; the respondent is to pay to the applicant funeral expenses payable under section 26 of the 1987 Act; the respondent is to pay to the applicant interest at the rate of 4.25% from the date the claim for compensation was duly made; the respondent is to pay the applicant’s costs as agreed or taxed, and a 30 percent uplift on costs for both parties is recommended.
Decision date: 7 April 2021 | Member: Jacqueline Snell
Claim for section 60 expenses for proposed surgery to insert gastric minimizer ring; accepted lumbar spine injury and consequential knee conditions; previous gastric bypass surgery found to be reasonably necessary as a result of lumbar injury in prior proceedings; issue estoppel; subsequent knee surgery and further weight gain; evidence of weight loss on medication; Held- recent weight gain multifactorial; injury materially contributed to present need for surgery; Murphy v Allity Management Services Pty Ltd applied; alternative treatments considered; Diab v NRMA Ltd, Rose v Health Commission (NSW) and Bartolo v Western Sydney Area Health Service applied; proposed surgery reasonably necessary as a result of lumbar injury.
Decision date: 7 April 2021 | Member: Rachel Homan
Claim for weekly compensation and section 60 expenses; accepted injury to right hand; applicant subsequently certified fit for pre-injury duties; onset of clicking and triggering in right thumb around 18 months after injury; disputed consequential right thumb condition; Held- opinions of applicant’s treating practitioners and independent expert were consistent and reasoned; respondent’s expert opinion lacked clarity and failed to engage with history, contemporaneous medical evidence and findings on examination of ongoing symptoms and restrictions in injured index finger; applicant sustained consequential right thumb condition; respondent to pay the applicant’s incurred section 60 expenses and weekly compensation in accordance with the applicant’s wages schedule.
Decision date: 7 April 2021 | Member: Rachel Homan
Workers Compensation Medical Appeal Panel Decisions
The appellant suffered injury to the lumbar and thoracic spines; the AMS assessed 7% for the lumbar spine and 5% for the thoracic spine and made a 50% deduction for the lumbar spine pursuant to section 323; the only issue on appeal was the section 323 deduction for the lumbar spine; Held- the AMS failed to provide any reasons as to how the pre-existing condition contributed to impairment; El Masri v Woolworths Ltd applied; demonstrable error established; on reassessment the Appeal Panel was satisfied that the pre-existing condition at L5/S1 contributed to impairment because the appellant was suffering from a herniated disc which was compromised because he was subject to recurrent flare ups and at times resulted in radiating pain down the buttocks; those types of symptoms indicated that the pre-existing condition was sufficiently compromised to the extent that the appellant was more vulnerable to injury, and if injured, the impairment would be worse; the Appeal Panel was entitled to use clinical experience in making this finding; Vannini v Woolworths Demolitions Pty Ltd applied; MAC revoked and deduction of one-tenth made as the extent of the deduction difficult to determine and not at odds with the available evidence.
Decision date: 1 April 2021 | Panel Members: Principal Member John Harris, Dr Gregory McGroder and Dr John Ashwell| Body system: Lumbar spine and thoracic spine
Applicant sustained a psychological injury in the course of her employment as a midwife; she had two earlier episodes of depression and was still having psychological and psychotropic treatment at the time of her employment with the respondent; AMS assessed 22% WPI and made no deduction for pre-existing condition; Held- Appeal Panel found that the AMS erred in failing to provide adequate reasons for concluding that no proportion of the current WPI was due to a pre-existing condition; the Appeal Panel concluded that a deduction of one-tenth should be made pursuant to section 323; MAC revoked; Appeal Panel assessed 22% WPI less 2.2% WPI resulting in an assessment of 19.8% which was rounded up to 20% WPI.
Decision date: 7 April 2021 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Professor Nicholas Glozier| Body system: Psychological/ psychiatric disorder
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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