Legal Bulletin No. 59

Issued 6 May 2022

Welcome to the fifty-ninth 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.

Key High Court Decision

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

The High Court provided that where a tribunal is not a “court of a State” (e.g., the Personal Injury Commission), the Tribunal does have incidental jurisdiction to decide whether the hearing and determination of the matter is within its legislated jurisdiction [see para 25]; when making that decision, the Court said the Tribunal must merely decide if there is genuine controversy about whether the hearing and determination of the matter is within its legislated jurisdiction and if yes, the Tribunal does not have power to determine the matter [see para 35].

Decision date: 4 May 2022 | Before: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

Supreme Court Decision

Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC

JUDICIAL REVIEW – jurisdictional error; Motor Accident Injuries Act 2017 (MAI Act); Medical Review Panel; erroneous or wrong understanding of statutory task to be performed upon review; failure to perform statutory task; whether causation established; application of erroneous or wrong test for causation; whether scientific evidence or certainty necessary; failure to exercise jurisdiction; error of law; error on the face of the record;  reference to MAI Act; Medical Review Panel; failure to consider relevant material.

Decision date: 31 March 2022 | Before: Wright J

Motor Accidents non-Presidential Member Decision

Rehman v Allianz Australia Insurance Ltd [2022] NSWPIC 171

Miscellaneous claims assessment; whether the motor accident was caused mostly or wholly by the fault of the claimant; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant’s taxi cab struck the rear of insured vehicle which was parked in kerb-side lane of two-lane street; claimant’s vision impaired by morning light at daybreak; claimant failed to take reasonable precautions to avoid presence of parked vehicles; Held– claimant wholly at fault.

Decision date: 12 April 2022 | Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Henderson v Reece Australia Pty Ltd [2022] NSWPIC 174

Claim for permanent impairment compensation for accepted injury to the right wrist on 7 November 2018; prior injury to the right wrist in 2009 requiring surgical procedures; applicant’s forensic medical specialist the only evidence assessing whole person impairment as a result of injury; respondent disputed the forensic medical specialist’s zero deductible proportion under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); failure to expose reasoning behind the assessment of zero deductible proportion; whether it was an appropriate case for the Member to determine the section 323 of the 1998 Act issue or whether the matter should be remitted to the President for referral to a Medical Assessor; Shankar v Ceva Logistics (Australia) Pty Limited considered but not followed; Etherton v ISS Properties Services Pty Ltd; Vitaz v Westform (NSW) Pty Ltd; Vannini v Worldwide Demolitions Pty Ltd; Asbestos Remover & Demolition Contractors Pty Ltd v Kruse; Hancock v East Coast Timbers Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; and NSW Police Force v Hahn considered and applied; Held- it was an appropriate case for the Member to determine the permanent impairment claim; applying a common sense approach to causation, the 2009 right wrist injury was a contributing factor causing permanent impairment and that a deduction is required under section 323 of the 1998 Act; a one-tenth deduction under section 323 of the 1998 Act was not at odds with the available evidence; an assessment was difficult to determine in the absence of medical evidence properly addressing the requirements of section 323 of the 1998 Act; accordingly, the statutory deduction under section 323(2) of the 1998 Act of one-tenth was applied.

Decision date: 21 April 2022 | Member: Anthony Scarcella

Comlekci v Fairfield City Council [2022] NSWPIC 175

Claims for injuries to right hand/wrist; consideration of factual material, medical reports and other treatment records; consideration of physiological change requirement under section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia considered; consideration of substantial contributing factor requirement under section 9A of the Workers Compensation Act 1987; Dayton v Coles Supermarkets Pty Ltd considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the 1987 Actconsideration of documentation required to find pre-injury average weekly earnings; Held - award in favour of the applicant for medical expenses; applicant’s current work capacity assessed as equivalent to the Fair Work Act 2009 (Cth)minimum wage; insufficient earnings information provided to assess pre-injury average weekly earnings and direction made for more information and submissions to be provided.

Decision date: 21 April 2022 | Member: Gaius Whiffin

Cini v Kidz Klub Pty Ltd [2022] NSWPIC 176

Accepted psychological injury; dispute regarding relevant date of injury for section 66 of the Workers Compensation Act NSW 1987 (1987 Act) purposes; chain of causation; applicant exposed to a frank traumatic event then incidents of bullying and harassment in the workplace; Held- applicant’s psychological injury results from several incidents in the course of her employment and appropriate date of injury is her last date of employment namely 13 March 2020; Secretary, NSW Department of Education v Johnson; State Government Insurance Commission v Oakley [1990] Aust torts reportsconsidered.

Decision date: 21 April 2022 | Member: Philip Young

King v Lloyd Drilling Constructions [2022] NSWPIC 177

Applicant claimed weekly benefits for closed period; and general order for medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); dispute as to whether applicant was a worker, pursuant to section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), or a deemed worker, pursuant to Schedule 1, Clause 2 of the 1998 Act; consideration of Stevens v Brodribb Sawmilling Company Pty Limited; Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Insurance Co of Australia Limited; Humberstone v Northern Timber Mills; Hollis v Vabu Pty Ltd; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; ZG Operations Australia v Jamsek; Turner v Stewardson; Higgins v North Coast Theatres & Drive-ins Pty Ltd; Pasqua v Morelli Constructions Pty Ltd; Davis v Pioneer Concrete; and Scerri v Cahill & another; Held- applicant was a worker employed by the respondent, or in the alternative a deemed worker; award for applicant of weekly benefits pursuant to sections 36 and 37 of the 1987 Act; and medical expenses pursuant to section 60 of the Act.

Decision date: 26 April 2022 | Senior Member: Kerry Haddock

Schryver v Woolworths Group Limited [2022] NSWPIC 178

Claim for medical expenses under section 60 of the Workers Compensation Act 1987 for proposed surgery, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis; Held – the applicant requires medical and related treatment resulting from injury sustained on 24 November 2015 in the course of his employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting from that injury.

Decision date: 27 April 2022 | Member: Carolyn Rimmer

Adam v ACE Demolition & Excavation Pty Ltd [2022] NSWPIC 179

Claim for the cost of left shoulder surgery pursuant to section 60 of the Workers Compensation Act 1987; the applicant underwent one lot of surgery to the shoulder, not paid for by the respondent, which did not relieve his symptoms; he sought further surgery for a rotator cuff tear and adhesive capsulitis, not diagnosed by the original surgeon, but diagnosed by the current treating shoulder surgeon based on the results of ultrasound investigations as opposed to MRI investigations; discussion by doctors as to which type of investigation more reliable for diagnosis of the left shoulder injury; Held- acceptance of the injury diagnosed by the current treating shoulder surgeon, and that the surgery he proposes to repair the rotator cuff tear and adhesive capsulitis is reasonably necessary as a result of the injury to the left shoulder; the respondent ordered to pay for the costs of and incidental to such surgery.

Decision date: 27 April 2022 | Member: Brett Batchelor

Workers Compensation President's Delegate Decision

Tisdell v M Latimore Pty Ltd [2022] NSWPIC 172

Work capacity dispute; whether the applicant has “no current work capacity”; clause 9 of Schedule 3 of the Workers Compensation Act 1987 (1987 Act); whether the applicant is able to work in “suitable employment”; s 32A of the 1987 Act; whether the applicant has “no current work capacity and likely to continue indefinitely to have no current work capacity”; section 38(2) of the 1987 Act; absence of medical evidence in support; Held – the applicant failed to demonstrate that he has no current work capacity; evidence demonstrated that the applicant is able to work in suitable employment; applicant’s claim for compensation declined.

Decision date: 19 April 2022 | President’s delegate: Kathryn Camp

Motor Accidents Medical Review Panel Decisions

Hamilton v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 91

Motor Accident Compensation Act 1999; Medical Review Panel; whole person impairment; multiple vertebral fractures without radiculopathy; compression fractures; multilevel structural compromise; Held- Medical Assessment Certificate revoked.

Decision date: 29 March 2022| Panel Members: Member Susan McTegg, Dr Margaret Gibson & Dr Geoffrey Stubbs | Injury module: Spine

Sorrenti v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 92

Permanent impairment; inconsistency on examination; causation; fractured femurs; shoulder injury; thumb injury; cervical spine injury; lumbar spine injury; hip injury; knee injury; scarring; combined certificate; the claimant suffered injury in a motor vehicle accident on 11 October 2017: the dispute related to the assessment of permanent impairment under the Motor Accident Compensation Act 1999; inconsistency demonstrated on examination and on surveillance; pre-accident evidence of left ulnar neuropathy; no evidence of injury to the ulnar nerve in the accident; Held- cervical spine soft tissue injury, lumbar spine soft tissue injury, right shoulder pain referred from neck caused by accident; injury caused by accident assessed at 7% whole person impairment; injury to the thoracic spine, left arm/ulnar neuropathy and left shoulder not caused by the accident.

Decision date: 1 April 2022| Panel Members: Member Susan McTegg, Dr Alan Home & Dr David | Injury module: Upper limb and spine

Workers Compensation Medical Appeal Panel Decisions

Badros v Qantas Airways Ltd [2022] NSWPICMP 93

Matter referred to the Medical Assessor (MA) to assess the permanent impairment of both upper extremities as a result of the 6 June 2018 injury and any allegation of a disease injury, or an aggravation thereof, withdrawn; MA considered a "deemed date" and allegation of disease injury and concluded there was no impairment referrable to a frank incident; MA erred by failing to assess the level of permanent impairment caused by the injury on 6 June 2018 because he apparently considered that permanent impairment resulting from injury should instead be measured by reference to causal connection with a differently characterised injury, namely, progressive disease injury caused over a long period by the general nature and conditions of her employment; Held- Medical Assessment Certificate revoked.

Decision date: 21 April 2022| Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr Gregory McGroder |Body system: Left upper extremity and right upper extremity

Mercer v Kurumbul Pty Ltd [2022] NSWPICMP 94

Assessment of cervical spine and upper extremities; appellant submitted that Medical Assessor (MA) failed to perform a proper examination and assessment of the left shoulder as the MA found that there was a chronic pain condition and inconsistent presentation; Held- Appeal Panel did not accept that there was no evidence available for a calculable impairment of the left shoulder; MA erred in not providing adequate reasons; worker re-examined and Medical Assessment Certificate revoked.

Decision date: 22 April 2022| Panel Members: Member Carolyn Rimmer, Dr John Brian Stephenson and Dr Gregory McGroder |Body system: Cervical Spine, left upper extremity and right upper extremity

Leslie v Bidald (Tamworth) Pty Ltd [2022] NSWPICMP 95

Appellant worker suffered injury to his lumbar spine and subsequently had a right sided L5/S1 foraminotomy and discectomy; Medical Assessor (MA) assessed appellant’s impairment correlated with the criteria for DRE Lumbar Category III; MA assessed that the effect of the appellant’s injury on ADLs warranted an additional 2% whole person impairment (WPI); appellant submitted MA was in error by not concluding he met the criteria for DRE Lumbar Category IV and by not adding an additional 3% WPI for the effect of his injury on his ADLs; Appeal Panel held that appellant did not meet the criteria for DRE Lumbar Category IV and MA correctly assessed the appellant as being with DRE Lumbar Category III;  Held- by the Appeal Panel that the effect of the appellant’s injury on his ADLs was such that the MA erred by not adding an additional 3% WPI; Medical Assessment Certificate revoked

Decision date: 22 April 2022| Panel Members: Member Marshal Douglas, Dr Margaret Gibson and Dr James Bodel |Body system: Lumbar spine

Slab Technologies Pty Ltd v Nicholson [2022] NSWPICMP 96

Assessment of consequential condition in left knee; Medical Assessor used Table 17-31 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th edwhich applies subject to conditions in footnote; conditions in footnote not fulfilled; Held– Medical Assessment Certificate revoked.

Decision date: 22 April 2022| Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni and Dr J Brian Stephenson|Body system: Right lower extremity (knee), lumbar spine and left lower extremity (knee)

Motor Accidents Merit Review Decisions

George v AAI Limited t/as AAMI [2022] NSWPICMR 22

Dispute about failure to provide particulars under sections 6.25 and 6.26 of the Motor Accident Injuries Act 2017 (MAI Act); whether full and satisfactory explanation for the failure to provide the required particulars; whether the claim should be reinstated; jurisdiction and power of merit reviewers; sections 8, 33 and 34 of the Personal Injury Commission Act 2020; schedule 2(1) of the MAI Act; Held– the application for a merit review is refused.

Decision date: 19 April 2022| Merit Reviewer: Katherine Ruschen

Caine v AAI Limited t/as GIO [2022] NSWPICMR 23

Meaning of pre-accident weekly earnings, schedule 1(4)(1) of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); whether PAWE can be adjusted by reason of the COVID-19 pandemic or other interruption to earnings in the pre-accident period; earnings as an earner; Held– the reviewable decision is set aside.

Decision date: 22 April 2022| Merit Reviewer: Katherine Ruschen

Zia v AAI Limited t/as AAMI [2022] NSWPICMR 24

Whether costs are reasonable and necessary; schedule 2(1) (aa) of the Motor Accident Injuries Act 2017 (the MAI Act); section 8.10 the MAI Act; costs of internal review; costs of medical assessment; Schedule1(2) of the Motor Accident Injuries Regulation 2017; Regulation 10; Regulation 20; Regulation 22; Regulation 23; Held– the application is remitted to the insurer.

Decision date: 26 April 2022| Merit Reviewer: Katherine Ruschen

Muzammil v QBE Insurance (Australia) Limited [2022] NSWPICMR 25

Meaning of pre-accident weekly earnings, schedule 1(4)(2)(b) of the Motor Accident Injuries Act 2017 (MAI Act); schedule 1(4)(1) of the MAI Act; pre-accident weekly earnings; self-employment; whether 52-week period under schedule 1(4)(1) of the MAI Act can be reduced or adjusted; Held– the reviewable decision is set aside.

Decision date: 26 April 2022| Merit Reviewer: Katherine Ruschen

Byrne v AAI Limited t/as GIO [2022] NSWPICMR 26

Whether costs are reasonable and necessary; schedule 2(1) (aa) of the Motor Accident Injuries Act 2017 (MAI Act); section 8.10 of the MAI Act; costs of internal review; costs of medical assessment; Schedule1(2) of the Motor Accident Injuries Regulation 2017; Regulation 10; Regulation 20; Regulation 22; Regulation 23; Held– the application is remitted to the insurer.

Decision date: 26 April 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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