Legal Bulletin No. 66
This bulletin was issued on 24 June 2022
Issued 24 June 2022
Welcome to the sixty-sixth 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.
The decisions published in this week’s Legal Bulletin will initially have some formatting issues due to technical issues. These issues will be rectified shortly, so when you go to the link next week, the formatting will be as usual. We apologise for any inconvenience.
Acceptance or rejection of expert evidence not the subject of contrary expert opinion; Wiki v Atlantis Relocations (NSW) Pty Ltd; Hancock v East Coast Timber Products Pty Ltd applied; absence of contemporaneous complaints; Kooragang Cement Pty Ltd v Bates applied; error in the fact-finding process Raulston v Toll Pty Ltd applied; requirement for expert medical opinion Strinic v Singh applied.
Decision date: 10 June 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
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; delay was nine days; whether a full and satisfactory explanation for delay in making the application; Held- claimant has a full and satisfactory explanation; delay due to an outstanding Whole Person Impairment dispute; disruptions caused by the solicitor with carriage of the matter contracting COVID; disruptions caused by the Easter public holidays; legal costs awarded, $NIL.
Decision date: 6 June 2022 | Member: Ray Plibersek
Motor Accidents; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred while the claimant was attempting to make a U-Turn across three lanes of traffic and the speed limit at the location of the motor accident was 60kph; claimant did not see the insured vehicle prior to the accident; rear visibility limited to about 50 metres with a bend in the road; where the claimant’s transit van did not have the use of a rear-vision mirror; Held- claimant wholly at fault for the motor accident.
Decision date: 14 June 2022 | Merit Reviewer: Maurice Castagnet
Motor Accident Injuries Act 2017 (2017 Act); claim for damages; Insurer (not Claimant) referred matter for assessment more than three years after the date of the accident; issues of Insurer’s compliance with pre-filing procedures; Insurer had not made offer of settlement and parties had not participated in settlement conference; Insurer had been attempting to obtain particulars of the claim without success; Insurer provided partial explanation for one period wishing to “protect Claimant’s rights” to go to Court; Held- Insurer complied with section 7.32 of the 2017 Act in that best endeavours had been made to obtain particulars in order to evaluate the claim and make an offer; Insurer had not provided a full and satisfactory explanation for its delay in commencing the proceedings more than 11 months after the three year anniversary of the accident.
Decision date: 15 June 2022 | Merit Reviewer: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Claim for compensation pursuant to sections 60, 66 and 67 of the Workers Compensation Act 1987 in respect of a primary psychological injury; no liability dispute as to “injury”; particular traumatic event in April 2016 in respect of which a claim for post-traumatic stress disorder (PTSD) was made; applicant also relies on other events over the course of employment as causative of psychological injury; where claim for compensation based on a single assessment of impairment arising from both causative events; proper terms of referral to Medical Assessor; Held- consistently with Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes applicant made a single claim for compensation in respect of a single impairment resulting both from the accident in April 2016 as well as events over the course of her employment; no basis to seek separate assessment of impairment resulting from the event in April 2016 or an opinion on apportionment.
Decision date: 9 June 2022 | Member: Rachel Homan
Request for surgery to left knee; consideration of nature of heavy work performed by the applicant; award for the applicant.
Decision date: 9 June 2022 | Senior Member: Elizabeth Beilby
Workers Compensation; claim for treatment expenses (a C3/4 and C4/5 anterior cervical discectomy and fusion) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in relation to an accepted consequential cervical spine injury as a result of accepted injuries to both shoulders; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the consequential injury to the applicant’s cervical spine, which arose as a result of the injuries to her shoulders; Rose v Health Commission (NSW); Diab v NRMA Limited; Murphy v Allity Management Services Pty Limited considered; Held– the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a consequential injury to her cervical spine which arose as a result of injuries to both her shoulders; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.
Decision date: 10 June 2022 | Member: Gaius Whiffin
Section 60 of the Workers Compensation Act 1987 (1987 Act) application relating to expenses occurred from 2012; applicant rendered paraplegic in 2009 and returned to UK in 2012 as he had no family in Sydney; whether the cost of relocation was medical or related treatment pursuant to section 59 (1987 Act); whether relocation costs were reasonably necessary pursuant to section 60 (1987 Act); whether other costs incurred whilst in North Yorkshire such as heating, a robotic lawnmower and painting and decorating were section 60 (1987 Act) expenses; whether respondent should be permitted to raise Anshun estoppel: Held- section 59 (1987 Act) refers to medical and related treatment so relocation expenses within ambit of s 59 definitions; NSW v Bunce applied; Rose v Health Commission applied; other claims also within ambit; Honarvar considered; Western Sydney v Everill applied; Clampett considered; section 60 (1987 Act) expenses reasonably necessary, Hesami considered, Diab applied; application by respondent pursuant to section 289A Workplace Injury Management and Workers Compensation Act 1998 to raise Anshun point rejected; Geary applied.
Decision date: 10 June 2022 | Member: John Wynyard
Whether proposed lumbar spine surgery was an expense reasonably necessary for the purposes of section 60 of the Workers Compensation Act 1987 (1987 Act); competing medical opinion against background of treating surgeon’s change in opinion regarding surgical priorities after an earlier decision by Personal Injury Commission; in favour of respondent that surgery to different body part (cervical spine) not related to original injury; consideration of Diab v NRMA Limited; Young v Vietnam Veterans Keith Payne VC Hostel; Held- Award for the applicant; applying Diab v NRMA the option of decompression surgery and fusion to the lumbar spine at L4-5 level as proposed and associated expenses was reasonably necessary for the purposes of section 60 of the 1987 Act.
Decision date: 14 June 2022 | Member: Christopher Wood
Claim under section 60 of the Workers Compensation Act 1987 for cost of cervical spine discectomy and fusion; worker had accepted injury to cervical spine in 2013 while employed by the first respondent; whether injury resolved; worker had further symptoms in his cervical spine in 2020 while employed by the second respondent; worker woke one morning with stiff neck; no particular incident or event; whether worker sustained further injury in 2020 or continuation of symptoms; finding that the 2013 injury materially contributed to the need for surgery; symptoms did not resolve; symptoms in 2020 were continuation; chain of causation not broken; first respondent liable for the cost of treatment; award for the second respondent.
Decision date: 14 June 2022 | Member: Jill Toohey
Accepted psychological injury; claim for ongoing weekly benefits and medical expenses; respondent relied primarily on the results of psychometric testing and surveillance, as well as evidence of independent medical examiner; consideration of Paric v John Holland Constructions Pty Ltd; Held- surveillance not at odds with evidence of applicant and treating practitioners; evidence of treating practitioners preferred over evidence of psychometric testing and respondent’s independent medical examiner; applicant has had no capacity for work since payments ceased; award for applicant of weekly benefits and medical expenses.
Decision date: 14 June 2022 | Member: Kerry Haddock
Jockey suffered several falls in employment over many years; the applicant alleges one incident on 2 February 2009 being a fall from a racehorse; dislocated right shoulder (accepted); neck and lower back (disputed); review of contemporaneous complaints; Held- applicant succeeds on the issue of right shoulder and neck injuries but award for the respondent in respect of lower back; matter remitted to President for referral to Medical Assessor for whole person impairment (WPI) assessment; cervical spine and upper right extremity.
Decision date: 15 June 2022 | Member: Phillip Young
Claim for the cost of lumbar spinal fusion; worker had accepted injury to lumbar spine in 1998 while employed by the respondent; worker left employment with the respondent around 2002; worker suffered aggravation around 2017 while employed by a different employer; whether the need for surgery was the result of the 1998 injury; whether the original injury made a material contribution; whether the surgery would not be needed where it not for the aggravation; worker continued to experience effects of original injury; Held- finding that the original injury made a material contribution to the need for the proposed treatment; respondent to pay the costs of and associated with the treatment.
Decision date: 15 June 2022 | Member: Jill Toohey
Claim for the costs of and incidental to a proposed total left knee replacement surgery; accepted lumbar spine injury in motor vehicle accident in March 2018; allegation of injury to left knee in the same event and/or consequential left knee condition due to falls as a result of lumbar symptoms; lack of contemporaneous evidence of knee injury; contradictory histories of whether knee condition due to falls; whether alternative treatment more appropriate; Held- award for the respondent on the allegation of left knee injury; applicant sustained a consequential left knee condition as a result of the lumbar injury; proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the surgery.
Decision date: 15 June 2022 | Member: Rachel Homan
The applicant sought review of Notice to Reimburse issued under section 145(1) of the Workers Compensation Act 1987; the applicant sought an order that the applicant is not liable for the Notice to Reimburse; the applicant also sought an order under section 119 and/or section 120 of the Workplace Injury Management and Workers Compensation Act 1998 that the second respondent be independent medically examined for the purposes of determining his capacity for work; Held- the orders sought by the applicant are refused.
Decision date: 14 June 2022 | Member: Jacqueline Snell
Claim for weekly payments for aggravation of spinal injury and myalgic encephalomyeltits/ chronic fatigue syndrome (ME/CFS) while working from home during the covid pandemic; also orders sought pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act) for various home modifications and medical treatment; whether effects of the aggravation of spinal injury and ME/CFS had ceased; reference to AV v AW on employment being the main contributing factor to the aggravation of diseases; reference to Rose v Health Commission (NSW) in regard to claim for medical and related treatment; Held- worker continues to suffer the effects of aggravation of spinal injury and ME/CFS; worker has had partial incapacity for work since 1 December 2021 and award of weekly payments made; orders made for the respondent to pay for certain medical treatment and home modifications pursuant to section 60(5) of the 1987 Act.
Decision date: 15 June 2022 | Member: John Isaksen
The applicant claims medical and related treatment for alleged consequential injury to his left hip including computerised tomography (CT) guided injection therapy; alleged consequential injury and need for CT guided injection therapy placed in issue; Held- the applicant sustained consequential injury to his left hip and CT guided injection therapy is reasonably necessary treatment for that injury.
Decision date: 15 June 2022 | Member: Jacqueline Snell
Workers Compensation; claim for treatment expenses (a total replacement arthroplasty of the left knee) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); respondent disputes treatment reasonably necessary and disputes treatment is as a result of an accepted left knee injury; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the left knee injury; Rose v Health Commission (NSW); Diab v NRMA; Murphy v Allity Management Services Pty Limited considered; Held- the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a left knee injury which arose out of or in the course of the applicant’s employment; there was a material contribution between the injury and the surgery; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.
Decision date: 15 June 2022 | Member: Gaius Whiffin
Claim for further lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987; accepted injury to lower limbs and prior assessment of 15% whole person impairment (WPI); applicant claimed further impairment of the left lower limb and lumbar spine; consequential lumbar spine condition disputed; Held- applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor to assess the degree of further impairment to the left lower extremity and lumbar spine.
Decision date: 15 June 2022 | Member: Rachel Homan
Motor Accidents Medical Review Panel Decision
Mr Reilly was injured in a motor accident in 2015 whilst working as a police officer when he jumped out of the way of a vehicle travelling at high-speed and fell down an embankment; Claimant injured his right shoulder and right hip in the fall; he also claimed that he injured his left shoulder whilst undertaking rehabilitation work at the gym under an exercise physiologist; as the Court held in Hunter v Insurance Australia Ltd, it is sufficient that there is an indirect but foreseeable consequence to establish causation; the Insurer’s submissions did not address the Claimant’s case with respect to the left arm; it was not suggested by the Claimant that he injured his left shoulder during the motor accident; the Claimant’s case has been presented as resulting from the motor accident due to the rehabilitation treatment received in mid-2016; Held- finding made that left shoulder condition caused by the motor accident; Claimant reassessed at 15% permanent impairment.
Decision date: 14 June 2022 | Panel Members: Principal Member John Harris, Dr David McGrath and Dr Shane Moloney | Injury module: Spine, Upper Limb and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Assessment of upper extremity impairment; referral by consent without findings as to injury, findings on causation required; Bindah v Carter Holt Harvey Woodproducts; interaction between American Medical Association AMA 5 and Guidelines; assessment of brachial plexus lesion and ulnar nerve lesion should not also include range of motion assessments; reassessment; Held- MAP revoked.
Decision date: 9 June 2022 | Panel Members: Member Catherine McDonald, Dr David Crocker and Dr Michael Davies | Body system: Cervical Spine, Upper Extremity and Scarring
Appellant contended Medical Assessment Certificate (MAC) contained demonstrable error; because firstly Medical Assessor (MA) had not assessed Whole Person Impairment (WPI) for scarring when that was a matter referred to the MA for assessment; and secondly the MA did not provide adequate reasons to explain making a deduction of 70% under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 for pre-existing degeneration in cervical spine; Appeal Panel agreed with both submissions; MAC revoked.
Decision date: 14 June 2022 | Panel Members: Member Marshal Douglas, Dr James Bode and Dr Gregory McGroder | Body system: Spine, Upper Extremity and Scarring
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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