Legal Bulletin No. 44

Issued 21 January 2022

Welcome to the forty-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.

Presidential Decision

Secretary, Department of Education v Carter [2022] NSWPICPD 1

WORKERS COMPENSATION – Alleged factual error; application of State of New South Wales v Seedsman; dispute notices, application of Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services; duty to give adequate reasons; current work capacity; application of Wollongong Nursing Home Pty Ltd v Dewar.

Decision date:10 January 2022 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Saha v Insurance Australia Limited t/as NRMA [2021] NSWPIC 535

Miscellaneous assessment; claim referred to the Personal Injury Commission (Commission) for assessment 3 years and 12 weeks after the accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted to refer the claim for assessment; claimant relied on her lawyer to pursue her claim; delay due to omissions of lawyer; section 7.33 of the Motor Accident Injuries Act 2017; Lee v Allianz Australia Insurance Limited applied, Karambelas v Zanic (No 2), Walker v Howard, Russo v Aiello, and Hunter v Roberts applied; Held - the claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment; leave granted for the claim to be referred for assessment.

Decision date: 15 December 2021| Member: Brett Williams

Toone v AAI Limited t/as GIO [2021] NSWPIC 536

Motor Accident Injuries Act 2017 (MAI Act); damages claim; leave to commence proceedings more than three years after the accident; referral to the Personal Injury Commission (Commission) one week outside the time limit in section 7.33 of MAI Act; insurer conceded claimant had full and satisfactory explanation but argued a discretion was involved before the grant of leave and that in exercising the discretion the Commission could have regard to the futility of the application; blameless accident and claimant owner and driver of only vehicle involved in the accident; Held - leave given to refer damages claim to the Commission for assessment; claimant had full and satisfactory explanation for the delay; section 7.33 of the MAI Act did not involve any additional discretion and issue of futility could not be considered; issue of liability separated from quantum and to be heard separately.

Decision date: 21 December 2021| Member: Belinda Cassidy

Sims v Insurance Australia Limited t/as NRMA [2021] NSWPIC 537

Late referral of claim to Personal Injury Commission for assessment; claim referred 3 years and 8 months after the accident; section 7.33 of the Motor Accident Injuries Act 2017; full and satisfactory explanation; Lee v Allianz Australia Insurance Limited, Karambelas v Zanic (No 2), Walker v Howard and Hunter v Roberts applied; reliance by claimant on legal representative; delay due to multiple factors including omissions of legal representative; Held - the claimant had provided a full and satisfactory explanation; leave to refer the claim for assessment granted.

Decision date: 22 December 2021| Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Allouche v M & B Moses Investments Pty Ltd [2022] NSWPIC 1

Application by respondent employer pursuant to section 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for referral of a matter to the Medical Assessor (MA) who previously assessed the applicant worker, but was unable to assess one body part, the lumbar spine due to the recent implantation of a spinal stimulator; two other body parts, the left and right lower extremities were previously assessed; the applicant, in responding to the respondent’s section 329(1A) application, sought to expand the body parts that should be referred to the MA, namely, to include consequential condition in right wrist, gastrointestinal system and scarring; the respondent opposed this, relying of section 322A of the 1998 Act to submit that the lumbar spine only should be assessed, and combined with the previous assessment of the lower extremities; the respondent agreed that an earlier assessment by an Approved Medical Specialist in a Medical Assessment Certificate of 1% in respect of gastrointestinal system should be included; Held - finding that, in the circumstances of the case, scarring should be referred to the MA together with the lumbar spine only, and that assessments for these body parts should be combined with earlier assessments in respect of the lower extremities and the agreed 1% WPI for the gastrointestinal system which would then constitute the only one assessment permitted by section 322A of the 1998 Act.

Decision date: 10 January 2022| Member: Brett Batchelor

Bennett v Kellogg’s (Aust) Pty Ltd [2022] NSWPIC 2

Claim for cost of a peripheral nerve stimulator prescribed in respect of an accepted injury; employer disputes claim on the basis that it did not result from pleaded injury and that it was not reasonably necessary; neither the worker’s statement nor the histories of the medical practitioners who support her claim refer to a long history of pre-injury back pain recorded in the clinical notes of  treating doctor; Held -finding that there is no “fair climate” for  the medical opinion evidence in the worker’s case; award for respondent.

Decision date: 10 January 2022| Member: Paul Sweeney

Da Silva v Qantas Airways Ltd [2022] NSWPIC 3

Claim for proposed back and left shoulder surgery; dispute whether surgery was reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Hancock v East Coast Timbers Products Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Herborn v Spotless Services Australia Limited discussed and applied; Held - surgery was reasonably necessary as a result of injuries; respondent to pay for proposed surgery pursuant to section 60 of the Workers Compensation Act 1987.

Decision date: 10 January 2022| Senior Member: Glenn Capel

Faitrouni v Scott’s Refrigerated Freightways Pty Ltd [2022] NSWPIC 4

Psychological injury; liability accepted for injury secondary to physical injury; worker also alleged she suffered a primary injury as a result of events while unfit for work and after her return to work; Nguyen v Cosmopolitan Homes, State Transit Authority v Chemler, Attorney General’s Department v K; Held - the worker suffered a primary and a secondary psychological injury; matter remitted for referral to a Medical Assessor.

Decision date: 10 January 2022| Member: Catherine McDonald

Gray v Australian Unity Home Care Services Pty Ltd [2022] NSWPIC 5

Claim for cost of proposed left knee arthroscopy; consideration of clinical notes and Davis v Council of the City of Wagga Wagga and Mason v Demasi; causation and Kooragang Cement Pty Ltd v Bates considered; scientific literature considered; Held - proposed surgery reasonably necessary.

Decision date: 10 January 2022| Member: Michael Wright

Hussein v Fencing & Gate Centre Pty Limited [2022] NSWPIC 6

Claim for weekly benefits from 30 January 2020 in respect of accepted back injury; liability for weekly benefits and medical expenses disputed on basis applicant has recovered from effects of injury; dispute regarding pre-injury average weekly earnings in respect of injury received before 21 October 2019; claim of concurrent employment and for overtime and allowances; applicant is pain focused and fear avoidant but has objective evidence of disc injury; pain management has not been provided; Held - applicant has since 30 January 2020 had no capacity for work, due to both physical and psychosocial effects of injury; consideration of former sections 44C, 44H and Schedule 3 of Workers Compensation Act 1987; pre-injury average weekly earnings do not include earnings in concurrent employment, overtime or allowances; award for the applicant of weekly benefits from 30 January 2020 and section 60 expenses.

Decision date: 10 January 2022| Senior Member: Kerry Haddock

Jason B and Natarsha N Cullinan v Cullinan & Ors [2022] NSWPIC 7

Determination of dependency and apportionment of death benefit, pursuant to section 29 of Workers Compensation Act 1987; claim for interest on lump sum pursuant to section 109 of Workplace Injury Management and Workers Compensation Act 1998; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Ltd; consideration of when claim “duly made”; Held - the first and second respondents were partly dependent for support on the deceased worker; the second respondent has a medical condition that justifies apportionment to her of a greater amount; lump sum apportioned as to 40% to the first respondent and as to 60% to the second respondent; claim was not duly made until submissions on apportionment were made after the telephone conference; no order for interest on the lump sum.

Decision date: 10 January 2022| Senior Member: Kerry Haddock

Kanajenahalli v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 8

Claim for compensation with respect to psychological injury; dispute as to whether applicant’s injury was wholly or predominantly caused by the reasonable actions of the respondent with regards to performance appraisal and/or discipline; the applicant was employed as a trainee paediatrician in late April 2019; his employment terminated on 12 June 2019 after he had been placed on a performance improvement plan; the respondent raised a defence pursuant to section 11A of the Workers Compensation Act 1987 (1987 Act); there is no issue as to the applicant’s pre-injury earnings or his incapacity for employment for the period of weekly compensation claimed; the main dispute in the case was whether the conduct of the respondent was reasonable in the circumstances, keeping in mind the need to balance the rights of the applicant with the object of the employment; Irwin v Director General of Education followed; a consideration of reasonableness involves an objective weighing of the consequences of the respondent’s conduct against the reasons given for it; Ritchie v Department of Community Services followed; as a hospital, the ramifications of substandard performance by health professionals are serious, and must be taken into account when considering whether the conduct relied on is reasonable; Held - in this instance, the applicant was given an ultimatum to resign or have his employment terminated shortly afterwards following a risk assessment, which he was told would lead to finding his employment was untenable; the conduct of the respondent was not reasonable in the circumstances, as the applicant was only employed as a trainee for six weeks, was placed on a performance improvement plan on 28 May 2019 then told he was not meeting that plan as early as 11 June 2019; as a result of this lack of reasonableness, the defence under section 11A of the 1987 Act must fail; the applicant alleges conduct other than that relied on by the respondent caused his injury; given the findings in relation to the reasonableness element of the defence under section 11A of the 1987 Act, it is not necessary to consider in detail whether this is the case; the respondent is to pay the applicant weekly compensation as claimed; the claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the applicant’s level of permanent impairment arising from the injury; respondent ordered to pay the applicant’s reasonably necessary medical and treatment expenses.

Decision date: 10 January 2022| Member: Cameron Burge

McKenzie v Curtain Raiser Pty Ltd [2022] NSWPIC 9

Psychological injury as a result of events over two days; analysis of factual evidence; Nguyen v Cosmopolitan Homes and Attorney General’s Department v K applied; Held - award for the applicant.

Decision date: 10 January 2022| Member: Catherine McDonald

Raw v Uniting Church in Australia (NSW Limited) [2022] NSWPIC 10

Claim by worker for the cost of proposed total left knee replacement alleged to result from an accepted injury to the right knee in 1994; evidence of treating orthopaedic surgeon that connection between injury and the proposed treatment was speculative accepted; Held - award for the respondent.

Decision date: 10 January 2022| Member: Paul Sweeney

Saini v Ampol Retail Pty Ltd [2022] NSWPIC 11

Claim for compensation pursuant to section 60 and lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to disputed cervical and lumbar injury due to nature and conditions of employment; adequacy of evidence of employment duties; whether correct test applied by applicant’s doctors; whether opinions explained; Held - applicant sustained injury to his cervical spine and lumbar spine pursuant to section 4(b)(ii) of the 1987 Act; general order for section 60 expenses; matter remitted to President for referral to a Medical Assessor.

Decision date: 10 January 2022| Member: Rachel Homan

Seymour v Baptistcare NSW & ACT [2022] NSWPIC 12

Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to proposed cervical surgery; disputed injury to cervical spine in electrocution event; prior reports of neck symptoms in clinical notes; delay in reporting symptoms at neck although symptoms in upper limb reported contemporaneously were later attributed to cervical spine pathology; whether surgery reasonably necessary; Held - applicant sustained an injury to the cervical spine; surgery was reasonably necessary as a result of injury; award for the applicant.

Decision date: 10 January 2022| Member: Rachel Homan

Taylor v Scotts Refrigerated Logistics [2022] NSWPIC 13

Claim for costs payable under section 60 of the Workers Compensation Act 1987 for proposed surgical treatment in the nature of left shoulder arthroscopic rotator cuff repair and long head of biceps tenotomy; left shoulder injury and need for the proposed surgical treatment placed in issue; Held – the applicant has sustained consequential injury to his left shoulder and has also sustained injury in the nature of an aggravation of a disease injury with his employment being the main contributing factor to injury; the proposed surgical treatment is reasonably necessary treatment for the injury the applicant has sustained to his left shoulder.

Decision date: 10 January 2022| Member: Jacqueline Snell

Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPIC 14

Claim for weekly payments and permanent impairment compensation by a worker with an accepted psychiatric injury; dispute as to whether applicant’s injury was wholly or predominantly caused by his dismissal, and, if so, whether the respondent’s actions with respect to dismissal were reasonable within section 11A(1) of the Workers Compensation Act 1987; finding that worker’s evidence not reliable; employer’s lay evidence preferred; discussion of what constitutes “reasonable action” in the case of a small employer; BlueScope Steel Ltd v Markovski considered; Held - in all the circumstances employer’s conduct was reasonable; award for the respondent.

Decision date: 10 January 2022| Member: Paul Sweeney

Vercoe v Hammond Care [2022] NSWPIC 15

Claim for weekly compensation and medical expenses in respect of bilateral sesamoiditis and consequential psychological and weight loss/gastrointestinal conditions; worker asserts that her work as an assistant in nursing 27 hours a week caused or materially aggravated her sesamoiditis; conflicting lay and medical evidence; acceptance of the opinion of treating orthopaedic surgeon; Held - finding that the work aggravated or exacerbated bilateral sesamoiditis and this injury aggravated a pre-existing psychological condition; finding that the worker had not established that her weight loss resulted from injury; award for the worker pursuant to sections 36, 37 and 60 of the Workers Compensation Act 1987.

Decision date: 10 January 2022| Member: Paul Sweeney

Nizamdeen v University of New South Wales [2022] NSWPIC 17

Claim for three months of no current work capacity and permanent impairment for psychological injury; worker is arrested at work on terrorist charges and is remanded in custody for a month before it is found that he was set up by a co-worker; whether the worker sustained injury arising out of or in the course of his employment; whether the worker sustained an injury as provided for by section 4(a) of the Workers Compensation Act 1987 (1987 Act), or in the alternative a disease injury; consideration of NSW Police Force v Gurnhill in regard to section 4(a) of the 1987 Act injury; consideration of AV v AW in regard to disease injury; reference to Mercer v ANZ Banking Group on worker’s employment being a substantial contributing factor to the injury; reference to Fire and Rescue NSW v Guymer on whether injury arising out of employment; Held – the worker did not sustain an injury arising out of or in the course of his employment with the respondent; award for the respondent.

Decision date: 12 January 2022| Member: John Isaksen

Motor Accidents President's Delegate Decision

Allianz Insurance v Rymer [2021] NSWPIC 534

Delegate of President accepting application for review of merit review decision of Merit Reviewer; assessment of reasonable and necessary legal costs; exceptional circumstances that justify payment of legal costs; adequacy of reasons; Held – Delegate of the President satisfied that there is reasonable cause to suspect that the merit review was incorrect in a material respect; the review application is accepted and will be referred to a Merit Review Panel.

Decision date: 14 December 2021| President’s Delegate: Jeremy Lum

Workers Compensation President's Delegate Decision

Smith v Secretary, Department of Education [2022] NSWPIC 16

Applicant was a school learning support officer who suffered accepted right knee injury and developed secondary psychological condition; applicant received 130 weeks of weekly benefits pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act); whether the applicant has “no current work capacity” and is entitled to weekly benefits under section 38 of the 1987 Act; Held - medical evidence and applicant’s evidence does not support that a present inability arising from her injury that she is not able to return to work in suitable employment; the applicant is able to engage in suitable employment; no evidence to support that the applicant is likely to continue indefinitely to have no current work capacity; application dismissed.

Decision date: 10 January 2022| President’s Delegate: Belinda Gamble

Workers Compensation Medical Appeal Panel Decisions

Nair v Westwise Recruitment Pty Limited[2021] NSWPICMP 242

Error alleged; Medical Assessor (MA) noted substantial variation in range of motion in right shoulder from previous measurements in evidence and assessed the worker by averaging his measurements upon examination with other earlier measurements in evidence; Held - averaging of earlier ranges of motion with current measurements was not considered to be an appropriate exercise of clinical skill and judgement and did not represent assessment of the condition at the time of examination (NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (Guidelines) 1.6); error established and worker re-examined; the parties noted that the referral to the MA had failed to include scarring which had formed part of the claim in part of the medical dispute; the parties agreed that the referral should be amended with the assessment to be determined by the Appeal Panel; observations on re-examination agreed with the assessment of the respective independent medical experts and scarring assessed in accordance with Table 14.1 of the Guidelines.

Decision date: 20 December 2021 | Panel Members: Member William Dalley, Dr Drew Dixon and Dr Tommasino Mastroianni | Body system: Left upper extremity, right upper extremity and scarring

Marsh v Newcastle Stevedores Pty Ltd [2022] NSWPICMP 1

Appeal against section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deductions of 100% for whole person impairment (WPI) to the right shoulder for the presence of osteoarthritic degenerative changes, and 40% WPI to the left shoulder for further impairment caused by a subsequent injury; Held - the pre-existing condition in the right shoulder was asymptomatic when the appellant injured it by falling through a hatchway on a ship in 2010, and a review of the evidence demonstrated that the aggravation thereby suffered was transient; the right shoulder (which came to replacement surgery in 2018) subsequently became symptomatic some five years later; thus the injury in 2010 caused a temporary aggravation of the right shoulder, which resolved, and accordingly did not result in any WPI; the Medical Assessor (MA) erred in applying the provisions of section 323 of 1998 Act; Cole v Wenaline applied, but assessment confirmed; the review of the evidence demonstrated that a subsequent motor vehicle accident aggravated the condition of the left shoulder, which had been injured in the 2010 subject injury; Johnson and Oakley considered; the MA erred in applying the provisions of section 323 of the 1998 Act  to a subsequent impairment; 2nd category of Johnson and Oakley applicable; Medical Assessment Certificate revoked and full amount assessed for the left shoulder (which had also had replacement surgery in 2017) applied.

Decision date: 10 January 2022 | Panel Members: Member John Wynyard, Dr David Crocker and Dr Brian Noll | Body system: Left lower extremity, right upper extremity and left upper extremity

Yaghi v Pacific National Executive Services Pty Ltd [2022] NSWPICMP 2

Appellant suffered psychiatric injury, from which Medical Assessor (MA) assessed appellant had 7% whole person impairment (WPI); appellant submitted MA erred with respect to his classification of her impairment in the  Psychiatric Impairment Rating Scale categories of travel, concentration, persistence and pace, and employability; Held - Appeal Panel considered it was open to MA to make the classifications he did with respect to concentration, persistence and pace and employability based on the material before the MA and for the reasons MA gave; Appeal Panel considered it was not open to MA to classify appellant’s function in travel as based on the evidence before the MA, and Appeal Panel consequently found Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel corrected that error and assessed appellant’s impairment in travel as class 2, but having done that the appellant’s WPI remained at 7%; MAC confirmed.

Decision date: 10 January 2022 | Panel Members: Member Marshal Douglas, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychological/psychiatric

Smith v M & F Hames Pty Ltd [2022] NSWPICMP 3

Worker suffered burns and fractured vertebrae in truck accident; Medical Assessor observed no clinical findings in lumbar spine but failed to assess on the basis of fractures; assessment of scarring under the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th edTable 8-2 and under the Table for the Assessment of Minor Skin Impairment if in class 1 of that table; Held - error in referral; Medical Assessment Certificate revoked.

Decision date: 11 January 2022 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni and Dr Brian Noll | Body system: Lumbar spine and scarring

Motor Accident Merit Review Decisions

Marshall v Allianz [2022] NSWPICMR 1

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings; clause 4(1) of the MAI Act; self-employed earner; sole trader; business expenses; inconsistent evidence; onus of proof; balance of probabilities; lack of evidence; Held – the reviewable decision is varied.

Decision date: 5 January 2022| Merit Reviewer: Katherine Ruschen

Towers v GIO [2022] NSWPICMR 2

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); change of circumstances under schedule 1, clause 4(3) of the MAI Act; whether COVID-19 is a change of circumstances for the purpose of clause 4(3) of the MAI Act; inconsistencies between documents; onus of proof; balance of probabilities; Held – the reviewable decision is varied.

Decision date: 5 January 2022| Merit Reviewer: Katherine Ruschen

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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