Legal Bulletin No. 79
This bulletin was issued on 23 September 2022
Issued 23 September 2022
Welcome to the seventy-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.
Court of Appeals Decisions
WORKERS COMPENSATION – Boilermaker’s deafness; Workers Compensation Act 1987 (NSW) sections 60 and 17; claim for provision of new hearing aids; where notice of injury of loss of hearing given to worker’s then employer in 1999; where worker changed employment in 2009; where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer; where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999; held worker not obliged to give notice of further injury to second employer; first employer liable for consequences of 1999 injury; no question of law.
Decision date: 20 September 2022 | Before: Ward P, Macfarlan JA and White JA
WORKERS COMPENSATION – Disease injury; aggravation, acceleration, exacerbation, or deterioration in the course of employment; where the deceased suffered an asthma attack causing cardiac arrest and anoxia and ultimately resulting in her death during the course of her employment; where appellants initially pleaded the injury as an “asthma attack”; where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia”; whether Anshun estoppel precluded the appellants from bringing the second claim.
Decision date: 23 September 2022 | Before: Ward P; Brereton JA and Mitchelmore JA
WORKERS COMPENSATION – Death of a worker; section 25(1)(b) of the Workers Compensation Act 1987 (1987 Act); payment of weekly compensation to a student over the age of 16 years; whether dependants who were engaged in apprenticeships were students as defined by section 25(5) of the 1987 Act; alleged failure to refer to and deal with submissions made; Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited; Wang v State of New South Wales applied; alleged failure to provide reasons; whether a proper application of the principles of construction; Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) applied.
Decision date: 12 September 2022 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Settlement approval; claimant 56 years old and not legally represented; claimant injured when she boarded a bus which moved before she was seated, causing her to fall and hit her head; claimant suffered a short term subdural haematoma and acute subarachnoid space haemorrhage; claimant working full time at time of accident; Off work 7 weeks but complete recovery took approximately 9 months while claimant on graduated return to full time working hours; insurer offered to settle claim for $45,500 less statutory benefits paid and including top up allowance for past economic loss of $9,000 and an allowance of $15,000 for future economic loss; settlement approved.
Decision date: 2 September 2022| Member: Alexander Bolton
Claim for statutory benefits made under Motor Accident Injuries Act 2017; dispute about whether the claimant was wholly or mostly at fault; claimant was driving car near Central Station in lane 1 of Lees Street when he came into contact with a small bus insured by QBE being driven in lane 2; dispute about whether impact occurred in lane 1 or lane 2; claimant retained expert but no report served and solicitors withdrew from the proceedings; no attendance by self-represented claimant at teleconference; Insurer requested proceedings be determined; Held – Member satisfied claimant knew about the teleconference as both previous solicitors and staff at the Commission had made contact; Member determined not appropriate to determine the proceedings in circumstances where no statutory benefits are currently being paid; proceedings dismissed pursuant to section 54(a) of the Personal Injury Commission Act 2021 and rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules.
Decision date: 7 September 2022| Member: Belinda Cassidy
Approval of proposed settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant a passenger in vehicle; insured driver just above the mid-range PCA (0.087); driver lost control when claimant moved over to cuddle the driver; claimant had undone her seatbelt; global settlement offer reduced by 50% for contributory negligence; claimant sustained left midshaft minimally displaced clavicle fracture; right scapular fracture; bilateral T1 transverse process and right C7 transverse process fractures; multiple right sided thoracic transverse process fractures; admitted to hospital; Held – Insurer concedes entitlement to damages for non-economic loss; settlement offer of $528,000 arrived at after reduction of estimated total damages by 50% for contributory negligence; settlement approved.
Decision date: 7 September 2022| Member: Terence Stern
Application for a late claim for damages assessment; more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; delay was eight days; whether a full and satisfactory explanation for delay in making the application; Held – claimant has a full and satisfactory explanation; delay due to clerical error; date of injury and the three-year limitation not diarised into solicitors case management system; claimant relied on his solicitors; claimant not aware of the time limitations for making a claim until informed by his solicitor; legal costs awarded $NIL.
Decision date: 13 September 2022| Member: Ray Plibersek
Workers Compensation non-Presidential Member Decisions
Claim for continuing weekly compensation in respect of disputed factual injurious event and disputed injury; consideration of lay witness evidence as to injurious event and medical evidence as to injury and capacity; consideration of current capacity and section 32A of the Workers Compensation Act 1987 (1987 Act) suitable employment; Held– applicant sustained injury on 13.8.21 when he fell off a ladder; held no current capacity for work; award pursuant to section 37 of the 1987 Act for continuing weekly compensation.
Decision date: 12 September 2022| Member: Michael Wright
Claim for weekly benefits for total incapacity; fact of injury not in issue however the respondent alleges effect of any injury has passed and the applicant has no incapacity; Held – as to injury; the applicant’s injury consisted of a frank disc protrusion at L5/S1 the effects of which are ongoing together with ongoing aggravation of other pre-existing lumbar changes; the contention of the respondent that the injury was wholly an aggravation and that the effects of it had passed is not made out; the factual material relied on by the respondent whilst taken into account is not sufficient to outweigh the objective radiological evidence which demonstrates the ongoing presence of the disc protrusion and of degenerative changes; the opinion of the respondent’s Independent Medical Examiner (IME) that the effects of any aggravation have passed was a bare ipse dixit statement (an unfounded assertion) which did not consider any of the updated objective evidence nor provide a cogent reason as to why the aggravation had passed; as to incapacity; the applicant’s contention that he is totally incapacitated for employment is not made out; the factual material relied on by the respondent together with the applicant’s own evidence provided by his brother demonstrates a residual capacity for employment; the respondent’s contention the applicant has no residual incapacity whatsoever is not made out; notwithstanding reservations surrounding portions of the applicant’s evidence the objective radiological evidence together with treating and IME opinion on balance proves the applicant has ongoing partial incapacity for employment assessed at $743.08 per week; respondent ordered to pay the applicant weekly compensation from 21 March 2022 to date and continuing at the rate of $1,061.72 per week.
Decision date: 13 September 2022| Member: Cameron Burge
Applicant alleges injuries to lumbar spine, cervical spine and right lower extremity (knee); issues concern Anshun estoppel; liability concerning lumbar spine and cervical spine and section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – regarding lumbar spine and cervical spine Anshun estoppel not established; applicant’s claim of cervical spine injury not established; applicant’s claim of lumbar spine injury established on the evidence; applicant not confined by section 322A of the 1998 Act because of no prior history of permanent impairment claim for the lumbar spine and no assessment of injury for the lumbar spine.
Decision date: 13 September 2022| Member: Phillip Young
Claim for cost of proposed surgery to left shoulder that is left labral repair of biceps tenodesis, cyst decompression and acromioclavicular joint excision, and post-surgical rehabilitation; and general order for cost of psychological treatment, pursuant to section 60 of the Workers Compensation Act 1987; medical evidence that suggested pain in applicant’s left shoulder was due to pathology in his cervical spine; applicant had injection to cervical spine with no reduction in pain in his left shoulder; respondent’s qualified psychiatrist opined the applicant had Somatoform Chronic Pain Disorder; Facebook posts and You Tube videos relied on by respondent; Consideration of Diab v NRMA Ltd; Held – award for the applicant for the cost of proposed surgery; and general order for the cost of psychological treatment.
Decision date: 14 September 2022| Senior Member: Kerry Haddock
Motor Accidents Medical Review Panel Decisions
Claimant involved in two motor vehicle accidents four days apart; pre-existing psychiatric condition; psychiatric injury; Panel did not re-examine claimant; Panel’s clinical judgment was that a further medical re-examination was not necessary to assess and determine the issue of causality; claimant exhibiting self-harm at previous medical assessments; re-examination may have detrimental effect on the claimant’s mental health; decision in Sydney Trains v Batshon considered; Motor Accident Injuries Act 2017; first accident was significant and caused the claimant’s injury; second accident was minor and did not cause an ongoing injury or impairment; Held – claimant’s psychiatric condition and psychological injury were not caused by the second accident; second accident represented a less than negligible contributing factor to the causation of claimant’s current psychiatric presentation; the second accident was not causally related to the development of a psychiatric condition or psychological injury which appears to have resulted from the first accident and other stressors which pre-dated the second accident; in circumstances where the Panel’s assessment is that the injury was not caused by the second accident the Panel is not required to make an assessment of the claimant’s degree of impairment; decision in Jarvis v Allianz Australia Insurance Ltd followed and applied (McCallum JA at  to ).
Decision date: 6 September 2022| Panel Members: Member Ray Plibersek, Dr Melissa Barrett and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural
Accident occurred on 15 May 2018; injury to cervical spine, lumbar spine and left shoulder; causation of left shoulder injury considered; pre-existing left shoulder complaints and treatment; no complaints or treatment for left shoulder from December 2017 until shortly after motor vehicle accident; panel satisfied left shoulder injury causally related to motor vehicle accident; claimant found to have 5% WPI of cervical spine only.
Decision date: 7 September 2022| Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan and Dr Margaret Gibson | Injury module: Spine and Upper Limb
The claimant suffered injury in a motor accident on 4 February 2020 when another vehicle merged into traffic and collided with the side of his vehicle; the issue was whether the claimant suffered a non-minor injury; the claimant sustained a soft tissue injury to the cervical and lumbar spines with no two signs of radiculopathy at any time; David v Allianz Australia Ltd applied; the claimant did not sustain low back injury as alleged; lack of contemporaneous complaint not mentioned in claim form; prior chronic history of back problems and L1 fracture showed to be longstanding; the mechanism of the motor accident could cause aggravation of pre-existing right shoulder condition due to either direct forces from the seatbelt or indirect forces applied through the right hand from the steering wheel; Dr McIntosh has strayed outside of his area of expertise when commenting on medical probabilities and his opinion was rejected; the full thickness tear in the right shoulder shown was aggravated by the motor accident noting the mechanism of the accident which can cause a direct or indirect injury to the shoulder; Held – claimant sustained a non-minor injury to the right shoulder.
Decision date: 14 September 2022| Panel Members: Principal Member John Harris, Dr Chris Oates and Dr Alan Home | Injury module: Spine, Upper and Lower Limb
The claimant suffered injury in a motor accident on 22 September 2019 when another vehicle collided into the rear of his vehicle; the issue was whether the claimant suffered a non-minor injury; the claimant sustained a soft tissue injury to the cervical and lumbar spine with no two signs of radiculopathy at any time: David v Allianz Australia Ltd applied; Panel otherwise not satisfied that the cyst shown on scan evidence was caused by the motor accident; the claimant did not suffer injuries to shoulders and the symptoms were more likely emanating from the cervical spine; factors in reaching this conclusion include the mechanism of injury, examination by the Medical Assessors, response to shoulder injections and nature of the pathology shown on scans in light of the claimant’s age; Held – claimant sustained minor injuries caused by the motor accident.
Decision date: 14 September 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Trudy Rebbeck | Injury module: Spine and Upper Limb
The claimant suffered injury in a motor accident on 25 January 2017 when his right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers; the issue was the extent of permanent impairment; late report filed by claimant rejected due to minimal evidentiary value; no explanation for late service contrary to Panel direction and delay to matter if accepted; the claimant was assessed for the amputation of the PIP joints of both ring and little fingers as well as total sensory loss; Panel accepted that right shoulder problems arose due to secondary consequence of amputation and also due to persistent protective postures that were observed during the examination; right shoulder assessed after deducting left shoulder loss of movement; claim that there was overuse of the left arm rejected; Held – claimant reassessed at 12% permanent impairment.
Decision date: 14 September 2022| Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
The appellant appealed the deductions pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 made by the Medical Assessor (MA); Panel accepted the deductions made by the MA were inconsistent with all the evidence; no adequate reasons given by MA; Medical Assessment Certificate revoked.
Decision date: 8 September 2022| Panel Members: Member Deborah Moore, Dr Drew Dixon and Dr Margaret Gibson | Body system: Lumbar Spine, Right and Left Lower Extremity
Respondent referred for assessment of right upper extremity including Complex Regional Pain Syndrome (CRPS); Medical Assessor (MA) diagnosed CRPS, which was not challenged; Appellant submitted that MA did not compute Whole Person Impairment (WPI) for CRPS in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021, and respondent agreed; Appeal Panel found error with the way in MA computed WPI; Medical Assessment Certificate revoked.
Decision date: 9 September 2022| Panel Members: Member Marshal Douglas, Dr James Bodel and Dr David Crocker | Body system: Cervical Spine and Right Upper Extremity
Appeal in respect of assessment of psychological area of function “concentration, persistence and pace” and against Medical Assessor’s (MA) reasoning with respect to deduction for pre-existing condition; moderate impairment classification and finding of no deduction for pre-existing condition challenged as contrary to the available evidence; Held – the reasons given by the MA did not take into account certain aspects of the evidence with respect to undertaking a TAFE course; error also established because the MA based his reason for making no deduction in respect of a pre-existing depressive condition upon the absence of impairment at the time of commencement of employment; discussion of application of paragraph 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 and section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Marks v Secretary Department of Communities and Justice referred to; assessment of moderate impairment confirmed upon re-examination; deduction of one tenth for pre-existing condition applied pursuant to section 323 of the 1998 Act.
Decision date: 12 September 2022| Panel Members: Member William Dalley, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Appeal by worker against 8% Whole Person Impairment assessment for physical injuries; whether Medical Assessor asked the wrong question when assessing Activities of Daily Living (ADLs) at 1%; Held – whether the appellant was independent in her personal and domestic activities was the wrong question; the correct question being whether the worker had any restrictions in performing them; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 objectives considered; Medical Assessment Certificate revoked and 3% for ADLs substituted.
Decision date: 13 September 2022| Panel Members: Member John Wynyard, Dr David Crocker and Dr Roger Pillemer| Body system: Lumbar Spine and Right Lowe Extremity
Assessment of permanent impairment from psychological injury; appellant relied on grounds for appeal provided in s327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 submitting that a statement he signed after the assessment revealed Medical Assessor denied him procedural fairness by not recording a correct history and by not permitting him to provide the details he wanted to provide and by making factual findings without any evidence; Held – Appeal Panel did not receive late statement into evidence; no grounds established; Medical Assessment Certificate upheld.
Decision date: 14 September 2022| Panel Members: Member Marshal Douglas, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric
Appellant alleged error with respect to classification of neck impairment as cervical category Diagnosis Related Estimate (DRE) I; deduction of previous award in respect of earlier injury and assessment of the left heel; alleged failure to assess asymmetry of movement in the cervical spine and failure to observe and record wasting in the left calf; Held – the Medical Assessor (MA) had appropriately considered asymmetry of movement and measured the respective calves in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; no error in this regard; MA technically fell into error in deducting the previous findings of Whole Person Impairment in respect of the shoulders rather than considering the extent to which the previous injury contributed to the impairment assessed on examination; upon consideration of the evidence the Panel concluded that the previous injury contributed one half in respect of the left shoulder and 2/5 in respect of the right shoulder which resulted in the same finding as assessed by the MA.
Decision date: 14 September 2022| Panel Members: Member William Dalley, Dr Roger Pillemer and Dr John Brian Stephenson | Body system: Cervical Spine, Left and Right Upper Extremity and Left Lower Extremity
Motor Accidents Merit Review Decision
Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the degree of permanent impairment as a result of the injury is greater than 10%, section 3.12 of the 2017 Act; cessation of weekly payments; pending claim for damages; whether weekly payments continue if there is a medical dispute under Division 7.5 of the 2017 Act; Held – the reviewable decision is affirmed.
Decision date: 8 September 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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