Legal Bulletin No. 86
This bulletin was issued on 11 November 2022
Issued 11 November 2022
Welcome to the eighty-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.
Presidential Member Decisions
Workers Compensation; acceptance of evidence; Shellharbour City Council v Rigby; Whiteley Muir & Zwanenberg Ltd v Kerr applied; whether proposed treatment reasonably necessary; Rose v Health Commission (NSW) applied.
Decision date: 31 October 2022 | Before: Deputy President Elizabeth Wood
Workers Compensation; the test to establish injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; application of Federal Broom Co Pty Ltd v Semlitch; factual error application of Raulston v Toll Pty Ltd and associated decisions.
Decision date: 2 November 2022 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant a motorcyclist; following a four wheel drive towing a horse float; insured vehicle slowed to turn right; dispute as to whether the braking lights of the horse float were functioning; claimant braked heavily causing loss of control of the motorcycle and it to fall on to the road; claimant sustained injuries; Sdrolias v Allianz Australia Insurance Ltd considered; Held – claimant not mostly at fault; no legal costs; claimant self-represented.
Decision date: 31 October 2022| Member: Terence Stern
Miscellaneous claims assessment matter; statutory benefits claim; single vehicle accident; claimant’s case was that as he proceeded through an intersection on his motorcycle he encountered a dip in the road; that the dip in the road caused his motorcycle to become unbalanced resulting in the motorcycle mounting the median strip and colliding with two poles; the insurer denied statutory benefits after 26 weeks on the basis that the accident was caused wholly by the claimant’s fault; whether for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 the accident was caused wholly or mostly by the fault of the claimant; Held – claimant lost control of his motorcycle after his motorcycle entered a slight dip in the road at approximately 60km/h; claimant travelling too fast; accident caused by the fault of the claimant; no other party at fault; as the claimant was the only person whose fault was found to have caused the accident it followed that the accident was caused wholly by the fault of the claimant.
Decision date: 3 November 2022| Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for right hip surgery; accepted injuries to left hip; whether consequential right hip condition; inconsistency in treating surgeon’s reports regarding onset of right hip symptoms; Held – treating medical evidence revealed ongoing left hip symptoms of pain and restriction as well as limping and antalgic gait; treating evidence consistent in indicating a gradual onset of right hip symptoms in the context of ongoing issues with the left hip; inconsistently recorded history of traumatic injury in one of the treating surgeon’s reports likely to be an error and did not outweigh the otherwise consistent evidence regarding onset of symptoms; applicant’s medical evidence preferred; award in favour of the applicant.
Decision date: 27 October 2022| Member: Rachel Homan
Claim for weekly benefits and compensation pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for psychological injury; whether reasonable action with respect to discipline was the whole or predominant cause of the injury pursuant to section 11A(1) of the 1987 Act; allegations of breaches of policy in relation to accessing clients’ personal information; applicant’s access to electronic records removed; other adverse interactions in the workplace; Held – employer’s action appeared heavy handed in all the circumstances; alleged breaches not sufficiently particularised as to enable a meaningful response; an essential tool of the applicant’s work was removed without alternative duties or arrangements being made; action with respect to discipline was the predominant cause of injury; respondent failed to discharge its onus of establishing that such action was reasonable; award for the applicant.
Decision date: 28 October 2022| Member: Rachel Homan
Claim for interest on lump sum death benefit pursuant to section 109(1) of the Workplace Injury Management and Workers Compensation Act 1998; claim for interest made at preliminary conference; findings and orders for payment of lump sum death benefit made at preliminary conference; directions made for provision of submissions on claim for interest and parties were advised that determination “on the papers” would be made at conclusion of time for provision of submissions; respondent failed to comply with timetable for submissions, failed to request an extension of time and failed to respond to a revised timetable communicated by email; parties were advised that, should submissions not be received in compliance with revised timetable the claim for interest would be dismissed; Held – the claim for interest is dismissed pursuant to section 54(a) of the Personal Injury Commission Act 2020.
Decision date: 31 October 2022| Senior Member: Kerry Haddock
Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act) in accordance with agreement reached by the parties; Held – the compensation payable by the applicant in accordance with section 25(1)(a) of 1987 Act on the death of the deceased worker is $798,100.
Decision date: 2 November 2022| Principal Member: Josephine Bamber
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017 (2017 Act); medical assessment of whole person impairment (WPI) and insurer’s review under section 7.26 of the 2017 Act; claimant sustained leg and hand fractures in pedestrian vs car accident; original Assessor (Gorman) had determined claimant’s WPI at 12%; no real issue of causation; methodology issues and additional injuries not previously assessed; Held – claimant’s WPI not greater than 10%; error in calculation of hip motion WPI (4% not 8%); right shoulder, hand and wrist (3%); scarring (2%); diabetes not caused by accident and no impairment for erectile dysfunction; no issue of principle.
Decision date: 24 October 2022| Panel Members: Member Belinda Cassidy, Dr Ian Cameron and Dr John Carter | Injury module: Endocrine, Upper and Lower Limb and Minor Skin
Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the 1999 Act; original assessor (Dias) assessed WPI at 10% due to injuries to the neck and back (both diagnosis related estimate (DRE) category II) and no injury to claimant’s shoulders or knees; issue was delay in onset of knee pain (two years post-accident) and whether claimant sustained frank injury to left shoulder or experiences referred pain from her neck; Held – claimant sustained soft tissue injury to the neck and lower back aggravating pre-existing degenerative changes resulting in DRE category II for both; Panel not satisfied the claimant injured her shoulder but she has referred pain in her shoulder restricting motion assessed at 2%; Panel not satisfied the claimant’s knee was injured in the accident.
Decision date: 25 October 2022| Panel Members: Member Belinda Cassidy, Dr Geoffrey Curtin and Dr Alan Home | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017 (2017 Act); medical assessment of “minor injury” and insurer’s review under section 7.26 of the 2017 Act; original Assessor (Menogue) had found injuries all minor on basis of no ligament tear in shoulder caused and no cervical radiculopathy; in issue was the delay in complaints of shoulder pain and whether radiculopathy had been present at any time since the accident; Held – Panel not satisfied that ligament tear in shoulder caused by the accident; following David v Allianz and noting findings in medico-legal examination conducted after the accident; in November 2018 the claimant had radiculopathy and therefore had sustained a non-minor injury.
Decision date: 26 October 2022| Panel Members: Member Belinda Cassidy, Dr Mohamed Assem and Dr Ian Cameron | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Medical dispute referred for assessment of left supra orbital traumatic neuropathy and complex regional pain syndrome (CPRS); Medical Assessor (MA) finds that the strict criteria for assessment of CRPS in Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4thed, 1 April 2016) were not met; nonetheless MA assessed whole person impairment (WPI) by reference to restriction of movement of each joint of the right arm; Held – MA was in error in assessing WPI in accordance with Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed when the only explanation for restriction of movement in the elbow and shoulder was CRPS; in view of the reasoning of the Supreme Court in Sakr v Merrylands Christian Pre-School Association Inc the worker’s WPI should be assessed by reference to the underlying condition; after re-examination of the worker Medical Assessment Certificate (MAC) revoked and new MAC issued incorporating the findings of the MA in respect of the worker’s underlying condition of the right hand and wrist.
Decision date: 27 October 2022| Panel Members: Member Paul Sweeney, Dr Mark Burns and Dr Drew Dixon | Body system: Left Supraorbital Traumatic Neuropathy and Right Upper Extremity
Appeal by the employer in relation to assessment of impairment in relation to a tibial plateau fracture; Medical Assessor (MA) assessed a moderate impairment at 10% whole person impairment (WPI); MA has to make an independent assessment on the day of the examination; must be based on the correct criteria in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4thed, 1 April 2016) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed(Guides); assessment of the grade of impairment in relation to a tibial plateau fracture is very specifically a radiological diagnosis based on the degree of involvement of the tibial plateau; this takes into account the extent of involvement of the weight-bearing area, the amount of displacement, and the amount of comminution; as indicated in the radiological and hospital reports this was a minimally displaced fracture; Held – in accordance with the correct criteria in the Guides there should have been awarded 5% WPI for mild grade involvement; there was no justification for assessing 10% WPI for a moderate grade involvement; Medical Assessment Certificate revoked.
Decision date: 27 October 2022| Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr Margaret Gibson | Body system: Lumbar Spine and Left Lower Extremity
Appellant suffered severe injuries in 2004 in work related motor vehicle accident; injury to right knee and perforation of his small bowel; suffered further severe injuries in 2007 in motor vehicle accident unrelated to his employment; included injury to his right knee; whether Medical Assessor (MA) provided adequate reasons for assigning half of appellant’s permanent impairment of his right lower extremity to 2004 work injury and half to 2007 injury; whether MA applied correct criteria to assess appellant’s permanent impairment of his digestive system; Held – MA provided adequate reasons for right lower extremity assessment and correctly assessed the appellant’s permanent impairment resulting from work injury to appellant’s right knee; MA made assessment of impairment of the appellant’s digestive system based on incorrect criteria; Medical Assessment Certificate revoked.
Decision date: 27 October 2022| Panel Members: Member Marshal Douglas, Dr Neil Berry and Dr Tommasino Mastroianni | Body system: Lumbar Spine, Right Upper and Lower Extremity, Digestive System and Scarring
Appeal against 11% whole person impairment assessment for lumbar spine injury; whether residual radiculopathy present following surgery; whether Medical Assessor (MA) had erred in not following assessment of worker’s medico-legal expert; Held – worker’s expert incorrect in his interpretation of chapters 4.7, 4.27 and 4.37 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4thed 1 April 2016); worker failed to refer to any Guidelines at all; observations on task of MA; Wingfoot Australia Partners Pty Ltd v Kocak and Western Sydney Local Health District v Chan referred to and applied; Medical Assessment Certificate confirmed.
Decision date: 28 October 2022| Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr Drew Dixon | Body system: Lumbar Spine
The appellant submitted that the issuing of two Medical Assessment Certificates (MAC) resulted in an unclear MAC being issued; doubt arises as to which of these can be relied upon in pursuing the applicant’s entitlements; issues in terms of appealing the reasoning contained within them separately; the Medical Assessor (MA) failed to take into account relevant medical evidence; the MA failed to properly consider activities of daily living, irrelevant considerations taken into account and incorrect TEMSKI Table application; Held – no evidence to support any of the appellant’s submissions; MAC confirmed.
Decision date: 28 October 2022| Panel Members: Member Deborah Moore, Dr Gregory McGroder and Dr Drew Dixon | Body system: Right Upper Extremity and Scarring (TEMSKI)
Left shoulder injury; left shoulder injured in 2000 which resulted in left shoulder replacement surgery; left shoulder injured again in 2016; no complaint on appeal about the assessment of 30% loss of efficient use of the left arm at or above the elbow for the 2000 injury; 23% overall whole person impairment (WPI) assessed for the left upper extremity with a deduction of 20/23 leaving an assessment of 3% whole person impairment as a result of the 2016 injury; the complaint on appeal concerned the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of 20/23 made by the Medical Assessor (MA) to account for the 2000 injury; the Appeal Panel considers that the assessment by the MA of a deduction of 20/23 such that 20% WPI was apportioned to the injury on 24 April 2000 and 3% WPI was apportioned to the injury deemed to have occurred on 16 November 2016 was open to the MA in the exercise of his clinical judgment and on the available evidence; it was open to the MA in the exercise of his clinical judgment taking into account the shoulder replacement surgery which resulted from the first injury and the history of residual pain and stiffness following that surgery; the history the MA took of residual pain and stiffness following the surgery was consistent with the available evidence and indeed the appellant’s own evidence that prior to his duties changing in 2016 he could manage the ongoing pain and discomfort in his left shoulder that he had after the shoulder replacement surgery because his work was light and he could delegate; having due regard to all of the available evidence, the MA has made a clinical judgment in assessing the extent of the impairment that had to be effectively apportioned to the 2000 injury; MA’s reasoning was adequately explained; Held – the Appeal Panel can discern no error in the MA’s approach to the deductible proportion under section 323 of the 1998 Act in the circumstances of this case; Medical Assessment Certificate confirmed.
Decision date: 28 October 2022| Panel Members: Member Jane Peacock, Dr James Bodel and Dr David Crocker | Body system: Right and Left Upper Extremity and Scarring
Worker alleged numerous errors by the Medical Assessor (MA) in assessing a psychological injury; these included the failure to calculate pre-existing impairment in accordance with Psychological Impairment Rating Scale (PIRS) tables; failure to identify and elaborate on “research” on which he relied; failure to find that the worker’s pre-existing condition was “situational” rather than “chronic”; lack of certainty in his finding that the applicant suffered from a pre-existing psychological condition; Racing Club Ltd v Burton and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Held – that as the MA found that the worker’s condition was asymptomatic prior to her injury it was open to him to make a 1/10th deduction for a pre-existing condition pursuant to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4thed 1 April 2016) Chapter 11.10; there was ample evidence of a pre-existing condition in the notes of the worker’s general practitioner; it was unnecessary for the MA to identify or elaborate on research to which he referred as a basis for his opinion; a fair reading of the Medical Assessment Certificate left no doubt that but for the pre-existing condition the worker’s whole person impairment would have been less than assessed by the MA.
Decision date: 28 October 2022| Panel Members Member Paul Sweeney, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Injury to both shoulders and consequential condition in lumbar spine; Medical Assessor obtained a history of the impact on activities of daily living (ADL) but did not explain why he did not make an assessment under paragraphs 4.33 to 4.35 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4thed, reissued 1 March 2021); Held – ADLs impacted as a result of lumbar spine condition; Medical Assessment Certificate revoked.
Decision date: 1 November 2022| Panel Members: Member Catherine McDonald, Dr Gregory McGroder and Dr Roger Pillemer | Body system: Lumbar Spine, Right and Left Upper Extremity
Appeal on the ground ofdeterioration of the worker’s condition that resulted in an increase in the degree of permanent impairment; Skates v Hills Industries limited considered and applied; Panel satisfied evidence of deterioration in lumbar spine and cervical spine; Held – worker re-examined and Medical Assessment Certificate revoked.
Decision date: 2 November 2022| Panel Members: Member Carolyn Rimmer, Dr James Bodel and Dr Margaret Gibson | Body system: Cervical and Lumbar Spine, Right and Left Upper Extremity
Motor Accidents Merit Review Decisions
Merit review; dispute about whether for the purposes of section 8.10 (recovery of costs and expenses in relation to claims for statutory benefits) of the Motor Accident Injuries Act 2017 (2017 Act) the costs and expenses incurred by the claimant are reasonable and necessary; whether costs payable per medical dispute or per medical assessment, clause 22, schedule 1, clause 2 of the Motor Accident Injuries Regulation 2017; section 7.12(7) of the 2017 Act; failure to provide further information; guiding principle section 42 of the Personal Injury Commission Act 2020; Held - decline to conduct a merit review under section 7.12(7) of the 2017 Act.
Decision date: 27 October 2022| Merit Reviewer: Katherine Ruschen
Merit Review; dispute over payment of interpreter invoices; whether the Personal Injury Commission (Commission) has jurisdiction to determine merit review; fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’; claim for legal costs; sections 6.21, 7.42 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – cost of interpreters invoices are not payable under either sections 3.24 or 3.28 of the 2017 Act; cost of interpreters invoice is not payable under section 8.10 of the 2017 Act; Commission does not have jurisdiction to conduct a merit review about interpreter invoices under Schedule 2 sub-clause 1(aa); no exceptional circumstances exist to justify additional legal costs under section 8.10(4) of the 2017 Act; no legal costs are payable under section 7.42 of the 2017 Act; no costs penalty is payable under section 6.21 of the 2017 Act; decision in ABV v AAI Ltd t/as GIOfollowed; decision in in ALV v NRMA Insurance (Merit Review) distinguished.
Decision date: 28 October 2022| Merit Reviewer: Ray Plibersek
Merit review; whether costs are reasonable and necessary; Schedule 2(1)(aa) of the Motor Accident Injuries Act 2017 (2017 Act); section 8.10 of the 2017 Act; costs of internal review; costs of medical assessment; Schedule 1(2) of the Motor Accident Injuries Regulation 2017 (Regulation); Regulation 10; Regulation 20; Regulation 22; Regulation 23; Held – the application is remitted to the insurer.
Decision date: 31 October 2022| Merit Reviewer: Katherine Ruschen
Merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1) of the 2017 Act; where the claimant received gross earnings as a warehouse assistant from various casual positions sourced through human resources agencies; PAWE incorrectly calculated; Held – the reviewable decision is varied.
Decision date: 3 November 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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