Legal Bulletin No. 61

Issued 20 May 2022

Welcome to the sixty-first 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

Temple v Woolworths Group Limited [2022] NSWPICPD 16

WORKERS COMPENSATION – distinction between injuries pursuant to sections 4(a) and 4(b) of the Workers Compensation Act 1987 (the 1987 Act); application of section 16 of the 1987 Act; Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd;  Rail Services Australia v Dimovski & Anor discussed and applied.

Decision date: 9 May 2022 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Neill v QBE Insurance (Australia) Limited [2022] NSWPIC 198

Application for a late claim for an assessment; more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; the Insurer determined that the Claimant had suffered a minor injury and did not have an entitlement to lodge a common law claim until Insurer accepted she sustained a non-minor injury or the dispute was determined by a  medical assessor; medical assessment delayed due to Covid-19 pandemic preventing a medical assessment; Claimant’s non-minor injury determination was made approximately 18 months after the application was originally lodged; medical assessment not made until 6 weeks after the three-year time period within which  an application for an Assessment for Damages can be made; whether a full and satisfactory explanation for the delay in making the application; Held- Claimant has a full and satisfactory explanation; delay due to the Covid-19 pandemic delaying medical assessments; late claim may be made more than three years after the date of the motor accident; Legal costs awarded $NIL.

Decision date: 3 May 2022 | Member: Ray Plibersek

Smith v IAG Limited t/as NRMA Insurance [2022] NSWPIC 199

Claimant seeks leave from the Personal Injury Commission to lodge his claim for damages after the three-year limitation period section 7.33 Motor Accident Injuries Act 2017 (the MAI Act); satisfied a full and satisfactory explanation for the delay section 6.14(3) of the MAI Act within the meaning, sections 6.2(1) and 6.2(2) of the MAI Act; Held- leave granted for the claim to be referred for assessment in accordance with the Motor Accident Guidelines.

Decision date: 5 May 2022 | Member: Elyse White

Workers Compensation non-Presidential Member Decisions

Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services [2022] NSWPIC 200

Applicant fell off roof and sustained catastrophic injuries rendering him paraplegic; whether applicant was a worker; Held- Applicant was a self-employed contractor; consideration of phrase “performance of particular work” in On Call Interpreters; totality of evidence addressing the various indicia to be considered; applicant claim that only the indicia relating to the particular contract were relevant rejected; in any event, even on such a restrictive approach; the indicia did not indicate an intention to create an employment contract; award respondent.

Decision date: 6 May 2022 | Member: John Wynyard

Fisher v Nonconformist Pty Limited & Ors [2022] NSWPIC 201

Worker with pre-existing ischaemic cardiomyopathy dies of cardiac arrythmia in the course of his employment as a courier; conflicting evidence as to whether traffic-related air pollution to which the worker was exposed whilst driving substantially contributed to his death for the purpose of section 9A Workers Compensation Act 1987; evidence established that the pollution increased the risk of cardiac injury and death; Held- Commission not satisfied that the evidence established that the deceased’s death was caused by traffic -related air pollution; award for the first respondent.

Decision date: 6 May 2022 | Member: Paul Sweeney

Zhai v Workers Compensation Nominal Insurer & Ors [2022] NSWPIC 202

Claim for weekly payments after 260 weeks (section 39  of the Workers Compensation Act 1987 (the 1987 Act); whether worker can combine assessment of permanent impairment for physical injury with assessment of permanent impairment for primary psychological injury from the one injurious event; consideration of the application of section 39 (3) with section 65 of the 1987 Act and section 322 of the Workplace Injury Management and Workers Compensation Act 1998; reference to Hochbaum v RSM Building Services P/L, Abu-Ali v Martin-Brower Australia P/L, and arbitral decision of Hulme v Secretary, Department of Education & Communities; Held– worker cannot combine assessment of permanent impairment for physical injury with assessment of permanent impairment for primary psychological injury from the one injurious event to be able to receive weekly payments beyond 260 weeks.

Decision date: 6 May 2022 | Member: John Isaksen

Tagicaki v Everwilling Cranes Pty Limited [2022] NSWPIC 203

The worker, who sustained a primary psychological injury and a secondary physical condition; sought aggregation of whole person impairment assessments on grounds that the physical condition resulted from the psychological injury and not the injurious incident; so section 65A (4) of the Workers Compensation Act 1987 did not apply; Department of Juvenile Justice v Edmed and Ozcan v Macarthur Disability Services Ltd discussed; Held- the term “condition” is not contained in the legislation; only the term “injury”; both assessable impairments resulted from the one injurious event; the worker not entitled to aggregate the assessments of whole person impairment; worker awarded lump sum compensation in respect of impairment due to alcoholic cardiomyopathy.

Decision date: 9 May 2022 | Principal Member: Glenn Capel

Field v Community Restorative Centre Limited [2022] NSWPIC 204

Claim for lump sum in respect of a psychological injury and a cardiac condition: whether section 65A(4) of the Workers Compensation Act 1987 (1987 Act) applied; whether a consequential condition compensable under the workers compensation legislation; whether the terms of section 65A(4) of the 1987 Act included consequential condition in definition of injury; Held- the cardiac condition was an injury pursuant to s 4(b)(ii), and therefore section 65A of the 1987 Act was applicable: award respondent for that claim.

Decision date: 10 May 2022 | Member: John Wynyard

Bhavsar v State of NSW (Sydney Local Health District) [2022] NSWPIC 205

Claim for section 60(5) of the Workers Compensation Act 1987 (1987 Act) declaration regarding cost of future ankle surgery and general order regarding section 60 of the 1987 Act expenses; applicant finished lunch break, stood up, right leg numb; fell and fractured his ankle; respondent relies on section 9A of the 1987 Act; claim that respondent admitted non-application of section 9A of the 1987 Act through making weekly payments not established as no prejudice; Held- following Clifton applicant’s employment (need to rush back to work) a substantial contributing factor to his injury; declaration and award in favour of the applicant accordingly.

Decision date: 10 May 2022 | Member: Philip Young

Ford v Forestry Commission of NSW [2022] NSWPIC 206

Applicant injured prior to 17 September 2012; the commencement, of the 2012 amendments to the Workers Compensation Act 1987 (1987 Act); applicant then an existing recipient of weekly payments and a seriously injured worker for the purposes of section 32A of the 1987 Act; whether section 38A of the 1987 Act having regard to the transitional provisions of the 1987 Act (Schedule 6 Part 19H and 19I of the 1987 act and clause 35(2) of the Workers Compensation Regulation 2016); Held- section 38A of the 1987 Act does not apply to the applicant’s circumstances.

Decision date: 10 May 2022 | Member: Michael Perry

Kazmi v Trinity Corporate Services Pty Ltd [2022] NSWPIC 207

Claim for weekly benefits and medical expenses as a result of injury to right wrist sustained when applicant forcibly removed from host employer’s premises; applicant attended meeting to discuss complaint against a colleague; applicant was dissatisfied with the proposed resolution of his complaint and became angry and abusive, leading to his removal; respondent disputed that injury arose out of or in the course of employment, pursuant to section 4 of the Workers Compensation Act 1987 (1987 Act); respondent relied on defence pursuant to section 14 of the 1987 Act; dispute as to any entitlement to weekly benefits; Held- consideration of SB v XFPL; Badawi v Nexon Pacific Pty Limited trading as Commander Australia Pty Limited; Nunan v Cockatoo Island Docks & Engineering Co Ltd; Kasim v Busways Blacktown Pty Ltd; Tarry v Warringah Shire Council; Davis v Mobil Oil Australia Ltd; Secretary, New South Eales Department of Educati0on v Johnson; and Sawle v Macadamia Processing Co Pty Ltd; unbroken chain of causation; injury arose out of employment; injury not solely attributable to applicant’s serious and wilful misconduct; award for applicant of weekly benefits and medical expenses.

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

Hall v Altus Traffic Pty Ltd [2022] NSWPIC 208

Claim for weekly benefits compensation; whether claimed injury to the lumbar spine had resolved; nature and extent of injury suffered by the applicant; assessment of factual and medical opinion evidence; Held– satisfied on the balance of probabilities that the workplace injury had not resolved; satisfied that applicant Award for applicant on the claim for weekly benefits compensation.

Decision date: 10 May 2022 | Member: Nicholas Read

Tate v University of New South Wales [2022] NSWPIC 209

Suitable employment as defined in section 32A of the Workers Compensation Act 1987; “real” jobs; Wollongong Nursing Home v Dewar referenced; whether labour market analysis was probative and identified real jobs; Held– award for the applicant for weekly compensation.

Decision date: 11 May 2022 | Member: Catherine McDonald

Osburg v Rajkumar Stephens t/as Beecroft Cheltenham Orthopaedic Associates [2022] NSWPIC 210

Claim for medical expenses under section 60 of the Workers Compensation Act 1987 for proposed surgery, namely, right total knee replacement; Held – the applicant requires medical and related treatment resulting from injury sustained on 6 August 2018 in the course of her employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting for that injury.

Decision date: 11 May 2022 | Member: Carolyn Rimmer

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Malek [2022] NSWPICMP 104

Review of Medical Assessment under Motor Accident Compensation Act 1999; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 22 October 2017; Held- original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the cervical spine, lumbar spine and left shoulder in total are not greater than 10% whole person impairment; finding that the right hip and right shoulder were not injured in the motor accident.

Decision date: 21 April 2022| Panel Members: Principal Member Josephine Bamber, Dr Shane Maloney and Dr Geoffrey Stubbs| Injury module: Spine and shoulder

Cho v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 107

This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for major depressive disorder and alcohol use disorder was satisfied; the Panel did not consider that Ms Vuong suffered from post-traumatic stress disorder (PTSD) at any time because there was no threat of serious injury or death in the motor accident which was an element for diagnosing PTSD under DSM-5; the Panel applied the principles in Lynch v AAI Ltd that the non- minor injury could occur at any time; in this case the non-minor psychological injury occurred when assessed by the psychologist in November 2021 and by the Medical Assessors on the Review Panel; Held- findings made that the claimant suffered from major depressive disorder and alcohol use disorder which was a non-minor injury within the meaning of the Motor Accidents Injuries Act 2017.

Decision date: 9 May 2022| Panel Members: Principal Member John Harris, Dr Wayne Mason and Dr Michael Hong| Injury module: Psychiatric/psychological

AAI Limited t/as GIO v Smith [2022] NSWPICMP 108

Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; disputes about treatment that has not been provided and treatment expense that has not yet been incurred; causation of injury and whether treatment is related to a motor accident; issue of jurisdiction and interpretation of Schedule 2(2)(b) of the MAI Act; Held- Review Panel and Medical Assessor do not have jurisdiction to determine a dispute about treatment that has not been provided but which may be provided in the future; discussion of section 3.24 MAI Act and the Motor Accident Guidelines and alternative methods of paying for treatment that is needed but not yet paid for; decision in Obeid v AAI Limited t/as AAMI followed.

Decision date: 9 May 2022| Panel Members: Member Belinda Cassidy, Dr Drew Dixon and Dr Shane Maloney| Injury module: Upper limb and shoulder

Allianz Australia Insurance Ltd v Argyle [2022] NSWPICMP 109

The claimant was involved in a motor accident on 2 February 2016 when he sustained various soft tissue injuries; Held- The claimant suffered soft tissue injuries to the cervical and thoracic spines; on reassessment by both Medical Assessors there was nil impairment of these body parts; the Panel was not satisfied that there was injury to the lumbar spine due to the absence of contemporaneous notes, the absence of allegation of injury by the claimant in 2016 and 2017, the underlying degenerative problems and the problems caused by the underlying polyneuropathy; the description of the mechanism of the injury did not suggest traumatic insult to the shoulders. Any initial shoulder symptoms were caused by referred pain from the cervical and/or thoracic spines; the current shoulder problems were due to progression of adhesive capsulitis caused by poorly controlled diabetes; Panel was not prepared to accept that there was any restriction of movement in the shoulder was caused by the motor accident; claimant assessed at 0% whole person impairment; original assessment revoked.

Decision date: 10 May 2022| Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Margaret Gibson|Injury module: Spine and shoulder

Workers Compensation Medical Appeal Panel Decisions

Stanjovic v Falcones Pty Limited [2022] NSWPICMP 105

Worker appeals from Medical Assessment Certificate (MAC) certifying whole person impairment for industrial deafness alleging error in calculations; an incorrect history in respect of hearing protection; and demonstrable error by the Medical Assessor (MA) in failing to take into account deafness in the low tones below 1500Hz in assessing the degree of industrial deafness; Held- Panel accepts that the MA made an error in calculation and took an incorrect history; on reassessment Panel determines that  features of the audiograms were not consistent with  noise induced hearing loss; new MAC issued excluding the losses below 1500Hz.

Decision date: 6 May 2022| Panel Members: Member Paul Sweeney, Dr John Joseph Scoppa and Dr Robert Payten|Body system: Hearing loss

Wright v Ngroo Education Incorporated [2022] NSWPICMP 106

Worker suffering primary psychological injury appealed against the classification of the Medical Assessor in the PIRS categories of concentration, persistence and pace; Held – no error demonstrated; Medical Assessment Certificate confirmed.

Decision date: 9 May 2022| Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier|Body system: Psychiatric/psychological

Woolworths Group Limited v Whittaker [2022] NSWPICMP 110

Employer’s appeal against failure of the Medical Assessor (MA) to make a deduction for a pre-existing condition pursuant to section 323 (1) of the Workplace Injury Management and Workers Compensation Act 1998 in respect of whole person impairment (WPI) resulting from total replacement of worker’s osteoarthritic right knee; worker had a long history of right knee problems including two significant surgical procedures and a diagnosis of osteoarthritis before performing the work tasks which aggravated her knee; Held- that the MA had erred in not engaging with this medical history and in failing to make a deduction to reflect pre-existing osteoarthritis; determined that the worker’s employment and her pre-existing condition contributed equally to her WPI; Medical Assessment Certificate revoked.

Decision date: 10 May 2022| Panel Members: Member Paul Sweeney, Dr John Brian Stephenson and Dr Tommasino Mastroianni|Body system: Left upper extremity (knee) and right upper extremity (knee)

Page v State of NSW (Central Coast Local Health District) [2022] NSWPICMP 111

Appeal against ½ deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor had erred in following the terms of the referral which the appellant maintained were erroneous; whether dispute agreed by the parties to be referred was intended to be a deemed date of injury; Held- prior proceedings were agreed to be in respect of a deemed date; the pleadings in the present ARD named a deemed date of injury; terms of referral incorrect; issue not responded to in terms by respondent; Skates v Hill Industries Ltd applied; Medical Assessment Certificate a nullity; matter reverted to the Commission.

Decision date: 10 May 2022| Panel Members: Member John Wynyard, Dr Tommasino Mastroianni and Dr Roger Pillemer |Body system: Left upper extremity and right upper extremity

Motor Accidents Merit Review Decision

Pechimuthoo v AAI Limited t/as AAMI [2022] NSWPICMR 29

Dispute about the amount of weekly payments of statutory benefits payable under section 3.8, Division 3.3, Part 3 of the Motor Accident Injuries Act 2017 after the second entitlement period (after 78 weeks); claimant is an Australian resident employed as an auditor; insurer erred in calculating the net weekly payment for the claimant’s loss of earning capacity; Held- reviewable decision varied.

Decision date: 8 April 2022| Merit Reviewer: Maurice Castagnet

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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