Legal Bulletin No. 70

Issued 22 July 2022

Welcome to the seventieth 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 Decisions

Cornwall v Allianz [2022] NSWSC 541

ADMINISTRATIVE LAW – judicial review; Motor Accidents Compensation Act 1999 (NSW), section 62; application for further assessment; whether further medical opinions were considered ‘additional relevant information’; whether further medical opinions such as to be capable of having material effect on the outcome of the previous assessment; Proper Officer’s decision upheld.

Decision Date: 5 May 2022 | Before: Harrison AsJ

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

ADMINISTRATIVE LAW – review of medical assessment by appeal panel; judicial review of appeal panel decision; adequacy of reasons of appeal panel; no requirement to address possible alternative findings; whether error of law in finding no “demonstrable error” in medical assessment rating severity of impairments.

WORKERS COMPENSATION – proceedings before Commission; medical assessment of psychological injury – appeal – appeal panel appointed under Workplace Injury Management and Workers Compensation Act 1998 (NSW), section 328; nature of grounds limited by statute; appeal by way of review; appeal limited to grounds stated by appellant.

WORKERS COMPENSATION – proceedings before Commission; medical assessment of psychological injury; appeal; additional evidence presented; whether obligation to re-examine worker; additional evidence of worker’s self-report accepted by appeal panel; whether additional evidence supported claim of “demonstrable error”.

Decision Date: 12 July 2022 | Before: Basten AJ

Insurance Australia Limited t/as NRMA Insurance v Rababeh [2022] NSWSC 942

ADMINISTRATIVE LAW – Judicial Review; Motor Accidents Compensation Act 1999 (NSW); treatment dispute; damages for future care and domestic assistance; whether Certificate is conclusive evidence of the matters certified within it; whether the first defendant was totally or partially incapacitated; whether the Tribunal provided adequate reasons; decision set aside.

Decision Date: 15 July 2022 | Before: Harrison AsJ

Presidential Decision

Mieth v Sydney Trains [2022] NSWPICPD 27

WORKERS COMPENSATION – section 4(b)(ii) of the Workers Compensation Act 1987;aggravation, acceleration, exacerbation or deterioration in the course of employment of a prior psychological condition; perception of events in the workplace; test of causation; State Transit Authority of New South Wales v Fritzi Chemler discussed and applied.

Decision Date: 14 July 2022 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Flanders v GIO General Limited [2022] NSWPIC 361

Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; section 3.28 of the Motor Accident Injuries Act 2017; whether the driver of the insured vehicle warned the claimant of the approach of her vehicle; whether the claimant was driving his vehicle on the wrong side of the road; sections 5B, 5C and 5R of the Civil Liability Act 2002; Rules 129-132 of Road Rules 2014; Podrebersek v Australian Iron & Steel Pty Ltd applied; Held – claimant was wholly at fault.

Decision date: 26 May 2022 | Member: Terence Stern

Shakhesi v QBE Insurance (Australia) Limited [2022] NSWPIC 362

Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); Schedule 2, clause (3)(g) of the MAI Act; Section 5R of the Civil Liability Act 2002; where claimant as a pedestrian was struck by insured vehicle whilst attempting to cross a residential street to catch a bus; CCTV footages from bus company; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; Held – contributory negligence of 50% on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.

Decision date: 6 June 2022 | Member: Maurice Castagnet

Farr v IAG Limited t/as NRMA Insurance [2022] NSWPIC 363

Claimant’s son riding in rear tray of a utility knowing driver had consumed alcohol after celebrating at a birthday party; suffered catastrophic injuries; claimant mother suffered pure mental harm; parties agreed to a 30% contributory negligence; dispute distinguishing between claimant mother’s damages and losses sustained due to the care of her injured son; Held – economic loss cannot be calculated with any accuracy and as such, past and future loss of earnings assessed as a buffer; certificate issued by Medical Assessor entitled the claimant to damages for non-economic loss.

Decision date: 23 June 2022 | Member: Elyse White

Luck v QBE Insurance (Australia) Limited [2022] NSWPIC 364

Motor vehicle accident; driver; wholly at fault; mostly at fault; liability; miscellaneous claims assessment; causation; Motor Accident Injuries Act 2017 (MAI Act); biomechanical experts; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the MAI Act; claimant sustained serious injury; claimant driving his vehicle when lost control, veered over median strip and collided with oncoming vehicle before colliding with another vehicle; oncoming vehicle also collided with another vehicle; claimant asserts unidentified vehicle collided with rear of his vehicle; claimant heard a bang in the back before losing control of his vehicle; two witnesses attested no other unidentified vehicle in vicinity of claimant’s vehicle; question of cause of damage to rear passenger side of claimant’s vehicle; evidence of competing biomechanical experts; Held – no unidentified vehicle collided with rear of claimant’s vehicle; damage to claimant’s vehicle caused as a result of a series of collisions; claimant lost control having accelerated too fast out of sweeping bend on wet road with lack of tire tread; accident caused wholly or mostly by fault of claimant.

Decision date: 4 July 2022 | Member: Susan McTegg

QBE Insurance (Australia) Limited v Kendrick [2022] NSWPIC 365

Settlement approval; 69-year-old female; cycling accident; fracture neck of left femur and left elbow requiring total left hip replacement and wiring of left elbow; 18% whole person impairment so entitlement to non-economic loss; no past and future economic loss; retired; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 7 July 2022 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Nightingale Transport (QLD) Pty Limited v Boulmetis and Others [2022] NSWPIC 366

Claim for benefits in respect of the death of a worker; apportionment of section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) lump sum and interest agreed between the parties;consideration of respondents’ (dependants’) statements, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration as to interest awards under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; Pheeney v Doolan (No 2) and Mudgee Explorer Tours Pty Ltd v Clarke considered; Held – no other persons but the respondents dependent for support on the worker at the date of his death; apportionment of section 25(1)(a) of the 1987 Act lump sum as agreed between the parties approved; interest at 2.4% per annum awarded from the date each respondent fully particularised their claims; as agreed between the parties; awards for each respondent made including interest.

Decision date: 7 July 2022 | Member: Gauis Whiffin

Stoneman v Margifox Pty Ltd [2022] NSWPIC 367

Apportionment of lump sum death benefit; Held – the applicant and the second respondent were dependent for support upon the deceased at the date of her death on 14 March 2019; the lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) as of the date of death was $798,100; the lump sum of $798,100 is to be paid directly, in equal shares, to the applicant and second respondent pursuant to section 85A of the 1987 Act;  there are no other relevant persons who could be or want to be classed as partially or wholly dependent upon the deceased as at the date of death; interest is to paid on the lump sum benefit at the rate of 2.25% pa from 27 January 2022.

Decision date: 7 July 2022 | Senior Member: Elizabeth Beilby

Arrogante v State of NSW (St George Hospital) [2022] NSWPIC 368

Applicant resolved lump sum claim in 2019 by Complying Agreement; sought further compensation relying on section 66A(3) of the Workers Compensation Act 1987 (1987 Act); failed to prosecute claim in first set of proceedings and declined to discontinue second set of proceedings despite poor prospects of success; Cram Fluid Power Pty Ltd v Green discussed and applied; Held – proceedings misconceived and lacking in substance; proceedings dismissed.

Decision date: 7 July 2022 | Principal Member: Glenn Capel

Brown v Harris Farm Markets Orange Pty Ltd [2022] NSWPIC 370

Claims for permanent impairment compensation; accepted claim for injury to left foot and amputation of left small toe; disputed claim for consequential condition of lumbar spine as a result of altered gait; amputation below right knee as result of unrelated condition; claim for primary psychiatric/psychological injury; respondent accepted that applicant has secondary psychiatric/psychological injury; disputed claim for primary psychiatric/psychological injury; applicant’s evidence unreliable, although not attempting to mislead; lack of contemporaneous medical evidence regarding complaints of symptoms in lumbar spine due to altered gait; treating psychiatrist and general practitioner support diagnosis of primary psychiatric/psychological injury; consideration of Kooragang v Bates, Martin v Comcare, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, Le Twins Pty Ltd v Luo, Kumar v Royal Comfort Bedding Pty Ltd and Grant v Dateline Imports Pty Ltd; Held – the applicant has not satisfied the onus of establishing consequential condition of his lumbar spine as a result of injury to his left foot; award for the respondent with respect to the claim for consequential condition of the lumbar spine; the applicant has sustained a primary psychiatric/psychological injury; claim for permanent impairment as a result of psychiatric/psychological injury remitted to President for referral to Medical Assessor.

Decision date: 11 July 2022 | Senior Member: Kerry Haddock

Apperley v Ian J and Renae A Forsyth and Others [2022] NSWPIC 371

Claim for benefits in respect of death of a worker; liability accepted; apportionment and interest agreed; application that amount apportioned to second respondent be placed in trust established for him; Held - lump sum benefit apportioned in accordance with agreement between applicant, second respondent and third respondent; lump sum benefit and interest payable to second respondent be paid to the trust established for him to be held on trust until he attains the age of 21 years.

Decision date: 11 July 2022 | Senior Member: Kerry Haddock

Tasevski v Westpac Banking Corporation [2022] NSWPIC 372

Applicant made claim for whole person impairment as a result of accepted psychological injury; respondent arranged for applicant to undergo forensic psychological testing, and the applicant refused; respondent asserted that the applicant was in breach of sections 71, 119 and 282 of the Workplace Injury and Workers Compensation Act 1998 (1998 Act); applicant sought orders that there had been no refusal to submit to examination by a “medical practitioner” and entitlement to recover compensation was not suspended; respondent withdrew the dispute and submitted the Application should be dismissed, as there was no longer a dispute before the Personal Injury Commission (Commission); applicant proposed various notations to orders, all of which were rejected by respondent; Held - respondent having withdrawn its reliance on sections 71, 119(1), 119(3) and 282 of the 1998 Act, there is no longer a dispute before the Commission, and the Application is therefore dismissed.

Decision date: 11 July 2022 | Senior Member: Kerry Haddock

Annetts v Bitupave Limited [2022] NSWPIC 373

Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) for psychological injury; injury accepted but section 11A(1) of the 1987 defence raised; applicant accused of sexual harassment and inappropriate behaviour by a co-worker; most allegations unsubstantiated following investigation by employer; Northern NSW Local Health Network v Heggie considered; respondent submitted that being informed of the allegations by the employer was the whole or predominant cause of injury; applicant conceded that the process undertaken by the employer was reasonable; Held – applicant drew a distinction between the conduct of his co-worker in making a false allegation and the employer’s conduct in disclosing and investigating the allegation; respondent failed to discharge its onus of proof; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.

Decision date: 12 July 2022 | Member: Rachel Homan

Walsh v Programmed Skilled Workforce [2022] NSWPIC 374

Claim for lump sum workers compensation; the worker claimed consequential injury to the left wrist as a result of favouring his right wrist which was injured at work; the worker claimed an aggravation of underlying arthritis in the left wrist; the respondent did not accept aggravation; Held – the applicant did suffer a consequential injury to the left wrist and an assessment of the right and left upper extremities was referred to a Medical Assessor to assess permanent impairment.

Decision date: 12 July 2022 | Member: Michael McGrowdie

Kumar v The Star Pty Limited [2022] NSWPIC 375

Claim for treatment expenses (right middle trigger finger release surgery) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in relation to an accepted right hand 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 injury, and whether the injury materially contributed to the need for the surgery; Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited, Hancock v East Coast Timber Products Pty Limited and Drca v KAB Seating Systems Pty Ltd considered; Held – the surgery proposed for the applicant is reasonably necessary medical treatment as a result of an injury to her right hand arising out of or in the course of her employment with the respondent; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.

Decision date: 13 July 2022 | Member: Gaius Whiffin

Viluan v MQ Health Pty Ltd [2022] NSWPIC 376

Claim for costs of and incidental to bilateral carpal tunnel release surgeries; injury disputed; applicant relied on both section 4(b)(i) and (ii) of the Workers Compensation Act 1987 (1987 Act); work as a sterilising technician involved repetitive manual handling; main contributing factor; whether evidence as to the nature and conditions of employment adequate; whether barred from recovering compensation pursuant to sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; Held – the weight of medical evidence indicated that the carpal tunnel syndrome was constitutional; treating doctor evidence that condition exacerbated by repetitive work accepted; AV v AW and State Transit Authority v El-Achi applied; applicant sustained an injury pursuant to section 4(b)(ii) of 1987 Act; deemed date of injury applies pursuant to section 16 of 1987 Act; no bar to the recovery of compensation; proposed surgeries are reasonably necessary as a result of the injury.

Decision date: 13 July 2022 | Member: Rachel Homan

Isler v Secretary, Department of Education [2022] NSWPIC 377

Issue estoppel and Port of Melbourne Authority v Anshun Pty Ltd estoppel; lump sum claim in other proceedings referred to Medical Assessor after section 78 of the Workplace Injury Management and Workers Compensation Act 1998 notice issued without application to rely on section 11A  of the Workers Compensation Act 1987 (1987 Act) defence; employer sought to rely on section 11A of the 1987 Act defence in later claim for weekly compensation; Manpower v Harris and Fourmeninapub Pty Ltd v Booth considered; Held – finding that employer is estopped from relying on section 11A of the 1987 Act defence, award for weekly compensation and section 60 of the 1987 Act expenses.

Decision date: 13 July 2022 | Member: Catherine McDonald

Mooney v White [2022] NSWPIC 378

Matter on remitter from Presidential Unit; applicant employed by respondent to live on respondent’s farm rent free in return for chores; applicant injured late at night when fell through first floor balcony rail; rail broke and had rusty brackets; respondent asserted no evidence concerning applicant’s purpose in being on balcony and applicant’s suggestion overseeing cattle mere speculation as applicant could not recall circumstances; Held – applicant was performing caretaker role and in course of his employment 24/7; Harris v Cudgegong Soaring Pty Limited applied; Hatzimanolis v ANI Corporation Limited, Whittingham v Commissioner of Railways (WA) and Comcare v PVYW considered;applicant in the course of his employment and employment a substantial contributing factor; matter remitted to President for referral to Medical Assessor.

Decision date: 13 July 2022 | Member: Philip Young

Dunn v Westruss Manufacturing Pty Limited [2022] NSWPIC 379

Preliminary issue concerning whether applicant should be required to attend respondent’s independent medical examination (IME); respondent failed to issue section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice at all; applicant claims section 66 of the Workers Compensation Act 1987 (1987 Act) psychological and respondent has no IME; applicant requests award in accordance with the claim (15% whole person impairment); respondent points to section 119 of the 1998 Act; Held – although respondent in breach of section 78 and section 281 of the 1998 Act, the effect of section 119 of the 1998 Act is to look to claim of injury or receipt of weekly payments as requiring applicant attendance at medical (not existence of dispute) and section 289(3)(c) of the 1998 Act gives the Personal Injury Commission jurisdiction to determine that section 119(3)(a) of the 1998 Act suspends the applicant’s entitlement to recovery section 66 of the 1987 Act compensation.

Decision date: 13 July 2022 | Member: Philip Young

Workers Compensation President’s Delegate Decision

Dutt v Bowditch Transport [2022] NSWPIC 369

Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker injured when bitten by dog; suffered both a physical and psychological injury; worker had returned to work as an apprentice; whether role of call centre operator suitable employment; medical evidence supported physical capacity, insufficient medical evidence regarding psychological capacity; Held – work capacity decision upheld; interim payment direction declined.

Decision date: 8 July 2022 | President’s Delegate: Parnel McAdam

Workers Compensation Medical Appeal Panel Decisions

Hamer v Port Kembla Operations Pty Ltd [2022] NSWPICMP 270

Appellant worker sustained primary psychological injury deemed to have occurred on 15 March 2017; Appeal Panel concluded that the Medical Assessor (MA) did not err and it was open to the MA to assess the appellant worker as Class 2 for Social and Recreational Activities; Held – Medical Assessment Certificate confirmed.

Decision date: 7 July 2022 | Panel Members: Member Carolyn Rimmer, Medical Assessors Nicholas Glozier and Patrick Morris | Body system: Psychiatric/psychological

Wangarang Industries Limited v Dreyer [2022] NSWPICMP 271

Upper extremity impairment; Medical Assessor recorded decreased range of movement in contralateral shoulder but did not make deduction; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021 paragraph 2.20; statement re-examination not admitted; Petrovic v BC Serv No 14 Pty Limited and Lukacevic v Coates Hire Operations Pty Ltd considered; Held – Medical Assessment Certificate revoked.

Decision date: 11 July 2022 | Panel Members: Member Catherine McDonald, Medical Assessors James Bodel and David Crocker | Body system: Cervical spine, right upper extremity and scarring (TEMSKI)

Fardell v Clinton Industries Pty Ltd [2022] NSWPICMP 272

Application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction; Held - the Appeal Panel determined that the Medical Assessment Certificate (MAC) issued on 27 October 2020 should be revoked, and a new MAC should be issued.

Decision date: 11 July 2022 | Panel Members: Senior Member Elizabeth Beilby, Medical Assessors David Crocker and James Bodel | Body system: Lumbar spine

Black Horse Espresso Pty Ltd v Hanna [2022] NSWPICMP 273

Appeal by employer against an assessment of whole person impairment (WPI) as a result of injury to the cervical spine and lumbar spine; the appellant submitted that the Medical Assessor (MA) erred in applying a one-tenth deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) to his assessments of WPI in respect of injury to the cervical spine and lumbar spine, in failing to provide reasons as to why he considered it costly or difficult to determine the appropriate section 323 of the 1998 Act deduction, and that it would not have been costly or difficult to determine the appropriate section 323 of the 1998 Act deduction, and that a one-tenth deduction was at odds with the available evidence; Held – finding that there was sufficient evidence for the MA’s assessment that a one-tenth deduction pursuant to section 323 of the 1998 Act should be made from WPI found as a result of injury to the cervical spine and lumbar spine; finding that the assessment of such deduction was not at odds with the available evidence; finding that the MA had provided sufficient reasons for the section 323 of the 1998 Act deduction he made; it was therefore not necessary for him to provide a reason as to why such deduction was difficult or costly to determine; finding that it was not necessary therefore to include in the Medical Assessment Certificate (MAC) a statement that the extent of the deduction pursuant to section 323 of the 1998 Act is “…is difficult or costly to determine”; MAC confirmed.

Decision date: 11 July 2022 | Panel Members: Member Brett Batchelor, Medical Assessors Tommasino Mastroianni and James Bodel | Body system: Cervical spine and lumbar spine

McMahon v Allied Beef Management Pty Ltd [2022] NSWPICMP 274

Psychological injury; Appellant alleged error in the assessment under four categories under the Permanent Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, social and recreational activities, social functioning and employability; Held – the Panel found that the Medical Assessor (MA) erred in assessing Class 2 when he should have assessed Class 3 for social and recreational activities; otherwise the ratings in all other classes the subject of the appeal were open to the MA; Medical Assessment Certificate revoked.

Decision date: 11 July 2022 | Panel Members: Member Jane Peacock, Medical Assessors Nicholas Glozier and Douglas Andrews | Body system: Psychiatric/psychological

Kristall v Nepean Blue Mountains Local Health District [2022] NSWPICMP 275

Bilateral upper extremities assessment; Appellant alleged demonstrable error in the assessment by the Medical Assessor (MA) and sought to rely on a statement of the appellant about the conduct of the MA during the assessment; Held – the Appeal Panel declined to admit the statement and found no demonstrable error; the MA was entitled to rely on his clinical findings on the day of assessment; Medical Assessment Certificate confirmed.

Decision date: 12 July 2022 | Panel Members: Member Jane Peacock, Medical Assessors James Bodel and Margaret Gibson| Body system: Left upper extremity and right upper extremity

Motor Accident Merit Review Decisions

Bonda v NRMA [2022] NSWPICMR 39

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; meaning of pre-accident weekly earnings (PAWE), schedule 1, clause 4(1) of the MAI Act; whether COVID-19 disaster payments are earnings as an earner; meaning of loss of earnings, schedule 1, clause 3 of the MAI Act; whether sick leave is loss of earnings for the purpose of section 3.6 or 3.7 of the MAI Act; Held – the reviewable decision is affirmed.

Decision date: 7 June 2022 | Merit Reviewer: Katherine Ruschen

Ho v Allianz Australia Insurance Limited [2022] NSWPICMR 40

Merit review matter; whether the claimant is an “earner” within the meaning of Schedule 1 clause 2(a) of the Motor Accident Injuries Act 2017 (MAI Act); claimant employed in a restaurant; limited records; paid by both EFT and cash in hand; whether exceptional circumstances so as to empower the Personal Injury Commission to permit payment of legal costs incurred by the claimant; Held – the claimant is an earner within meaning of Schedule 1 clause 2(a)(ii) of the MAI Act; the insurer’s decision set aside; matter remitted to the insurer to determine the claimant’s entitlements to weekly payments of statutory benefits in accordance with Part 3 Division 3.3 of the MAI Act; costs allowed as provided by section 8.10(4)(b) of the MAI Act.

Decision date: 12 July 2022 | Merit Reviewer: Brett Williams

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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