Legal Bulletin No. 53
This bulletin was issued on 25 March 2022
Issued 25 March 2022
Welcome to the fifty-third 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 Accidents Compensation Act 1999; failure to provide reasons; finding not based on evidence; failure to respond to substantial and clearly articulated argument; psychiatric injury secondary to pain; resolution of physical injury; decision of Appeal Panel set aside.
Decision date: 23 March 2022| Before: Harrison AsJ
WORKERS COMPENSATION – principles applicable to disturbing a primary decision maker’s factual determination; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, Raulston v Toll Pty Ltd, Najdovski v Crnojlovic considered and applied; causation; Kooragang Cement Pty Ltd v Bates; whether injury materially contributed to the need for surgery; Murphy v Allity Management Services Pty Ltd applied.
Decision date: 10 March 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Claims assessment application; whether claimant had used “best endeavours’ to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act, 2017; meaning of “best endeavours”; prior offer conveyed by insurer indicated sufficient evidence to make assessment of claim; claimant put insurer on notice of need to protect limitation period; Foster v Hall considered; Held- “best endeavours” not mean necessary for offers to be exchanged; duty not impose an obligation on claimant to disregard her own interests; “best endeavours” places obligation on claimant to facilitate an opportunity for settlement discussions; claimant did what she reasonably could in circumstances to settle the claim; application to dismiss application declined.
Decision date: 13 December 2021| Member: Susan McTegg
Assessment of damages; Motor Accidents Compensation Act 1999; non-economic loss; past loss of earnings; future loss of earnings; treatment; equipment needs; past gratuitous care, future commercial care; retirement age; orthopaedic injuries; causation of traumatic brain injury; retirement age; motorbike accident; claimant age 45 at date of accident and 51 at date of assessment; hospitalised five months; fracture of left distal radius; fracture of right distal radius; fracture of the left ulnar styloid; fracture of right distal ulnar, open book facture of the pelvis; injury to the bladder associated with the pelvic fracture; fractures of the T6, T7, T8, T9 and T10 spinous process; erectile dysfunction; closed head injury; Held- also suffered mild traumatic brain injury; aggravation of pre-existing psychological injury; damages assessed for past and future treatment expenses, equipment costs, past and future economic loss, past and future domestic assistance, non-economic loss; capacity to work two three hour shifts per week but no likelihood of actually securing such work; Mead v Kerney and Nominal Defendant v Livaja applied; damages assessed on basis of total incapacity for work; Nicholson v Nicholson applied; no entitlement to damages for care whilst hospitalised; future commercial assistance assessed on basis reasonable for claimant to live on small acreage out of town; Dang v Chea and Chulcough v Holley applied; damages assessed in the sum of $2,244,628.43.
Decision date: 18 February 2022| Member: Susan McTegg
Settlement approval; 49 years old female, non-representation, claim limited to past and future economic loss; past economic loss for closed period; future economic loss buffer; Held – proposed settlement just, fair and reasonable; settlement approved.
Decision date: 8 March 2022 | Member: Gary Victor Patterson
Claims assessment matter; claim for damages submitted to insurer the claim was referred to the Personal Injury Commission under Division 7.6 of the Motor Accident Injuries Act 2017 (MAI Act)for assessment; no particulars or evidence provided when claim was lodged; insurer disputed genuine attempt to settle; whether the claimant had complied with section 7.32(3) of the MAI Act by requesting a settlement conference; meaning of “best endeavours”; whether proceedings should be dismissed; Held - for the purposes of section 7.32(3) of the MAI Act the claimant failed to use her best endeavours to settle the claim before referring it for assessment under Division 7.6 of the MAI Act; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020.
Decision date: 10 March 2022 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Worker alleges rupture of previous anterior cruciate ligament (ACL) graft shortly after starting work in an unwitnessed injury on a Monday morning; employer denies liability on basis of CCTV footage of worker limping on arrival at work on morning of alleged injury; conflicting evidence as to whether worker walked with a limp following previous ACL surgery; evidence of worker that he walked with a limp prior to the alleged injury preferred to evidence of respondent’s witnesses that he did not; finding that the worker suffered injury in the course of his employment; Held- award for weekly compensation and for the cost of a further ACL reconstruction.
Decision date: 11 March 2022| Member: Paul Sweeney
Application for reconsideration of Certificate of Determination for lump sum compensation following Medical Assessment Certificate and decision of Medical Appeal Panel; application based on deterioration and/or additional information of a body part (right leg) not previously referred for assessment or assessed by Approved Medical Specialist (AMS); reference to O’Callaghan v Energy World Corporation; whether need for assessment is for a threshold dispute and not a claim for lump sum compensation; reference to Merchant v Shoalhaven City Council; Held– application for reconsideration dismissed; no further assessment allowed for a body system or body part which was not included in referral for assessment or assessed by AMS; no evidence supporting a deterioration or there being additional evidence of the body part (the lumbar spine) which was referred for assessment.
Decision date: 11 March 2022| Member: John Isaksen
Claim for costs payable under section 60 of the Workers Compensation Act 1987 for ongoing exercise physiology sessions and gym membership resulting from injury sustained by the applicant in the course of his employment with the respondent; Held– ongoing exercise physiology sessions and gym membership are reasonably necessary treatment resulting from the injury the applicant sustained in the course of his employment with the respondent.
Decision date: 14 March 2022| Member: Jacqueline Snell
Claim for cost of proposed right L3/4 microdiscectomy and L4/5 microdiscectomy; accepted injury to L3/4 disc, which was the site of previous surgery; dispute as to whether the applicant sustained injury to L3/4 disc as a result of nature and conditions rather than frank incident; whether the applicant sustained injury to L4/5 disc due to disease; whether the proposed surgery is reasonably necessary as a result of injury; Held- applicant sustained injury to L3/4 and L4/5 discs on 7 September 2019; consideration of Diab v NRMA Ltd; respondent to pay cost of proposed right L3/4 and L4/5 microdiscectomy.
Decision date: 16 March 2022| Senior Member: Kerry Haddock
Workers Compensation President's Delegate Decisions
Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker had moderate incapacity and limited English skills; worker capable of finding work using Chinese language apps; no obligation on insurer to provide English language classes; Held- award for the applicant for a short return to work period and thereafter award for the respondent.
Decision date: 14 March 2022 | President’s Delegate: Parnel McAdam
Work capacity dispute; whether the applicant is able to work in “suitable employment”; section 32A of the Workers Compensation Act 1987; whether the role of vocational educator is suitable employment; absence of relevant qualification; Held – the role of vocational educator is not suitable employment; applicant has no current work capacity; award for the applicant for weekly payments of compensation.
Decision date: 16 March 2022 | President’s Delegate: Kathryn Camp
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999 (MAC Act);Medical Review Panel matter; claimant’s application for review pursuant to section 63 of the MAC Act in relation to assessment of whole person impairment (WPI) in relation to original assessment of 8% WPI; Held- Certificate revoked and WPI assessed at 2% upon re-examination of the claimant by the Panel’s Medical Assessors.
Decision date: 3 March 2022| Panel Members: Principal Member Josephine Bamber, Medical Assessor Alan Home and Thomas Rosenthal | Injury module: Cervical spine, lumbar spine and right shoulder
Motor Accidents Compensation Act 1999 (MAC Act); Medical Review Panel matter; claimant sustained injuries to her neck, back, shoulders and right knee as driver of motor vehicle; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment assessed at 2%; claimant applies for and was granted review under section 63 of the MAC Act; no dispute by claimant as to thoracic spine or right shoulder injury; no challenge by claimant to medical examination findings; no challenge by insurer to findings on causation; claimant argued no regard had for medico-legal evidence; Held- Certificate confirmed; consideration of clauses 1.21, 1.38, Table 7, definitions of non-verifiable radicular complaints and radiculopathy, 1.50 and 1.65 and table 62 of Motor Accident Permanent Impairment Guidelines and the assessment of crepitus in the knees and scapulothoracic joint crepitus.
Decision date: 3 March 2022| Panel Members: Member Belinda Cassidy, Medical Assessor Drew Dixon and Margaret Gibson | Injury module: Cervical spine, thoracic spine, lumbar spine and right shoulder, left shoulder and right knee
Workers Compensation Medical Appeal Panel Decisions
Allegation of demonstrable error by Medical Assessor in determining that the appellant was not exposed to noise the nature of which his injury was due; the respondent conceded error; Held- error established; Pereira v Siemens Ltd applied; appellant worker assessed in respect of 4 kHz and 3 kHz as resulting from exposure to noise in the workplace on the balance of probabilities; Medical Assessment Certificate revoked.
Decision date: 10 March 2022| Panel Members: Member William Dalley, Dr Joseph Scoppa and Dr Brian Williams | Body system: Hearing loss
The appellant submitted that the Medical Assessor (MA) should have assessed him as having ‘severe’ pain which would give 0 points as per the Table; and hence place him in the poor category with 30% whole person impairment (WPI); the appellant does not challenge the one-tenth deduction made by the MA; Panel accepted that the MA’s reporting of present symptoms was fairly brief and that he did not refer specito all of the medical evidence; however, the totality of the evidence supported the MA’s final assessment; Held- Medical Assessment Certificate confirmed.
Decision date: 10 March 2022| Panel Members: Member Deborah Moore, Dr Roger Pillemer and Dr J Brian Stephenson | Body system: Left lower extremity – knee
Psychological injury; assessment in Psychiatric Impairment Rating Scale categories; Ferguson v State of NSW, Parker v Select Civil Pty Ltd referenced; Held- Medical Assessment Certificate confirmed.
Decision date: 10 March 2022| Panel Members: Member Catherine McDonald, Dr Michael Hong and Dr Julian Parmegiani | Body system: Psychiatric/psychological
Worker appeals against a determination of 0% in respect of the table for the evaluation of minor skin impairment (TEMSKI) scarring and a deduction of 10% pursuant to section 323 (2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for pre-existing degenerative disease of the shoulders; Panel admits photograph of worker’s scar and supplementary statement taken after the Medical Assessment Certificate (MAC) as fresh evidence; Panel finds prima facie error in the assessment of scarring but not in the application of section 323 (2) of the 1998 Act; Held- after re-examination Panel determined that the “best fit “for the scarring was 2%; MAC revoked.
Decision date: 10 March 2022| Panel Members: Member Paul Sweeney, Dr Brian Stephenson and Dr Tommasino Mastroianni | Body system: Right upper extremity (shoulder/elbow), left upper extremity (shoulder/ elbow) and scarring
The appellant submitted that the Medical Assessor (MA) erred in the deduction he made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence in the form of a further medical report commenting on the Medical Assessment Certificate (MAC) rejected; no claim for a deemed date of injury; evidence disclosed significant pre-existing conditions consistent with the MA’s deduction; Held- MAC confirmed.
Decision date: 10 March 2022| Panel Members: Member Deborah Moore, Dr Mark Burns
Dr J Brian Stephenson | Body system: Right lower extremity and scarring
Assessment of noise induced hearing loss; long exposure to noise without wearing hearing protection; inclusion of losses at 500 and 1,000 Hz; the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairmentparagraph 9.9; Held- Medical Assessment Certificate revoked.
Decision date: 11 March 2022| Panel Members: Member Catherine McDonald, Dr Henley Harrison and Dr Robert Payten| Body system: Hearing loss
Appeal against assessment for psychological injury of 8% whole person impairment; applicant former police officer lodged further statement as fresh evidence; whether fresh evidence admissible; whether challenge to four Psychiatric Impairment Rating Scale categories successful; Held- fresh evidence rejected; no submissions made as to admissibility beyond reference to section 287(3) of the Workplace Injury Management and Workers Compensation Act 1998; Lukacevic applied; fresh statement had no prima facie probative value and badly drafted; substantive submissions rejected; Ferguson, Parker, Jenkins applied; observations regarding applicant’s reliance on opinion rather than submissions; observations on incomplete sentences within submissions; Medical Assessment Certificate confirmed.
Decision date: 14 March 2022| Panel Members: Member John Wynyard, Dr Michael Hong and Dr Patrick Morris | Body system: Psychiatric/psychological
Section 323 deduction of the Workplace Injury Management and Workers Compensation Act 1998; avascular necrosis (AVN) of humeral head observed on post-injury MRI scan of right shoulder; surgery to acromioclavicular joint and subsequent monitoring of AVN; consequential condition in left shoulder where AVN also present; Medical Assessor deducted one third, speculating that earlier non-work related hip replacements were also the result of AVN; Cole v Wenaline, Ryder v Sundance Bakehouse, Fardell v Clinton Industries referenced; one-tenth deduction was appropriate; Held- Medical Assessment Certificate revoked.
Decision date: 15 March 2022| Panel Members: Member Catherine McDonald, Dr David Crocker and Dr Roger Pillemer | Body system: Right upper extremity (shoulder)
Worker sustained injury to cervical spine and right upper extremity on 21 April 2016; Medical Assessor (MA) concluded that she had not reached Maximal Medical Improvement (MMI) and that the worker had not tried her best in performing during examination; MA did not address whether worker’s condition was well stabilised and was unlikely to change substantially in the next year with or without medical treatment as required in the guidelines; Held- that MA erred in not referring to and applying test for determining MMI as set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; worker re-examined; Medical Assessment Certificate revoked.
Decision date: 16 March 2022| Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr David Crocker | Body system: Cervical spine and right upper extremity (right shoulder)
Appellant challenged the assessment for the left knee and lumbar spine and the section 323 deduction of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Panel found no error with the knee assessment but revoked the lumbar spine assessment because the evidence supported DRE II; section 323 deduction of the 1998 Act consistent with the evidence and confirmed; Held- Medical Assessment Certificate revoked
Decision date: 16 March 2022| Panel Members: Member Deborah Moore, Dr David Crocker and
Dr J Brian Stephenson | Body system: Lumber spine and left lower extremity
Appellant worker referred to Medical Assessor (MA) for assessment of whole person impairment (WPI) relating to injuries to cervical spine and right shoulder and consequential condition in left shoulder; appellant contended that MA’s assessment of permanent impairment of cervical spine was not done in accordance with correct criteria because MA did not provide specific figures for restriction of range of motion of cervical spine and did not consider non-verifiable radicular complaints; appellant further contended that MA erred when making a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for prior injury to right shoulder because MA merely assumed by virtue of the occurrence of a prior injury that there should be a deduction; Appeal Panel found MA complied with [4.17] and [4.18] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment with respect to assessment of WPI due to cervical spine, and there was no error with respect to the MA’s assessment of the cervical spine; Held- by the Appeal Panel that the MA made deduction under section 323 of the 1998 Act based on an assumption and that consequently Medical Assessment Certificate contained a demonstrable error; Appeal Panel corrected that error.
Decision date: 16 March 2022| Panel Members: Member Marshal Douglas, Dr Roger Pillemer and Dr Margaret Gibson | Body system: Cervical spine, right upper extremity (shoulder) and left upper extremity
Motor Accidents Merit Review Decisions
Merit review; legal costs for minor injury dispute; physical and psychological injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 Motor Accident Injuries Act 2017 (MAI Act); Held- claimant not awarded maximum regulated legal costs; entitlement to recover legal costs under section 8.10 of the MAI Act not dependent on whether or not the claimant was successful at medical assessment; no exceptional circumstances exist to justify additional legal costs.
Decision date: 28 February 2022| 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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