Legal Bulletin No. 80

Issued 30 September 2022

Welcome to the eightieth 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.

Motor Accidents non-Presidential Member Decisions

Lee v QBE Insurance (Australia) Limited [2022] NSWPIC 508

Whether the accident is a no-fault accident for the purposes of Part 5 of the Motor Accident Injuries Act 2017 (2017 Act); whether the accident was the fault of another person under section 3.11 of the 2017 Act; whether the accident was mostly the fault of the injured person under section 3.28 of the 2017 Act;  claimant a pedestrian crossing roadway at night during rainfall and emerged from behind a wagon stationary at an intersection; collision occurred between the claimant and the insured vehicle which had turned left onto the roadway; Held – the accident is a no-fault accident due to the accident not being the fault of the insured driver; claimant found to be contributory negligent in the order of 70% and therefore mostly at fault.

Decision date: 15 August 2022| Member: Elizabeth Medland

Kent v AAI Limited t/as GIO [2022] NSWPIC 509

Negligence; onus of proof; caravan; late service excluding material.

Decision date: 7 September 2022| Member: Hugh Macken

Hlaihel v AAI Limited t/as GIO [2022] NSWPIC 510

Whether for the benefit of the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the 2017 Act) the motor accident was caused mostly by the fault of the injured person; the claimant was a pedestrian attempting to cross Waterloo Road at Greenacre when she was struck by a motor vehicle being driven by the insured driver; claimant initially provided statements that she had no recollection of the accident at all but subsequently made a further statement claiming she looked to her right for oncoming traffic prior to stepping out onto the roadway; the insured driver stated the claimant was about 2 metres in front of the insured vehicle and was walking in a manner as she was crossing the road with her back turned on oncoming traffic; determined the insured driver had no opportunity to brake or swerve or avoid colliding with the claimant as she attempted to cross the road; Held – for the purposes of section 3.11 and 3.28 of the 2017 Act the motor accident was caused mostly by the fault of the injured person.

Decision date: 13 September 2022| Member: David Ford

Moon v AAI Limited t/as GIO [2022] NSWPIC 516

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 was a pedestrian on a busy (vehicles and pedestrians) roadway; objective significant risk of presence of pedestrians; collision between pedestrian and vehicle; claimant alleged to have emerged from between two vehicles; insured driver alleged to have failed to keep proper look out; Held – non-minor injuries; claimant not mostly at fault; legal costs; exceptional circumstances.

Decision date: 19 September 2022| Member: Terence Stern

Issa v QBE Insurance (Australia) Limited [2022] NSWPIC 517

Assessment of a claim for damages; liability wholly admitted; claimant’s credit in issue; surveillance footage; Held – non-economic loss, past and future loss of earnings assessed; buffer allowed for loss of opportunity to earn additional income and profits from loss of business opportunities.

Decision date: 19 September 2022| Member: Maurice Castagnet

Allianz Australia Insurance Limited v Vickers [2022] NSWPIC 518

Settlement approval; 57-year-old male; injuries left wrist requiring internal fixation; sternal and rib fractures resolved; 8% whole person impairment no entitlement to non-economic loss; past and future economic loss claimed; specific amount for past based on actual losses; buffer for impairment to future loss of earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 20 September 2022| Member: Shana Radnan

Allianz Australia Insurance Limited v Nakhle [2022] NSWPIC 522

Settlement approval; 46-year old male; rider of motorcycle involved in a collision with a motor vehicle driven by the insured driver; sustained fractured scaphoid bone in left wrist, bruising and abrasions to left shoulder, road rash and swelling to right knee, swelling and bruising to right foot and ankle; no allegation of contributory negligence; insurer conceded claimant entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; Held –proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017.

Decision date: 21 September 2022| Member: David Ford

Workers Compensation non-Presidential Member Decisions

Arkwright v Arkwright Enterprise Pty Ltd [2022] NSWPIC 511

Claim for the cost of right total knee replacement; accepted injury to lumbar spine; no dispute that the worker has severe osteoarthritis in the right knee; no dispute that the proposed treatment is reasonable treatment for the condition in his right knee;  whether the worker developed a consequential condition in his right knee as a result of the lower back injury;  worker had anterior cruciate ligament reconstruction 22 years earlier;  whether the accepted injury materially contributed to the need for the proposed treatment; Held – the worker performed increased kneeling and squatting because he could not bend following his injury; worker developed antalgic gait due to severe lower back and left leg pain; finding that the accepted injury made a material contribution to the need for treatment; award for the applicant.

Decision date: 15 September 2022| Member: Jill Toohey

Konza v Burkes Transport (Services) Pty Limited [2022] NSWPIC 512

Purported appeal from a decision of the delegate; Held – there is no jurisdiction to hear matter.

Decision date: 15 September 2022| Member: Elizabeth Beilby

Payne v Absolute Domestic Cleaning Pty Ltd [2022] NSWPIC 513

Whether applicant who entered into a contract with the respondent to carry out domestic cleaning services for clients of the respondent was a worker, deemed worker or independent contractor; claim for medical expenses; fact of injury not in issue nor the fact the applicant’s medical expenses claimed to date are greater than $5,000; Held – the applicant was a deemed worker of the respondent pursuant to Cl 2 and Cl 2A of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998; Malivanek v Ring Group Pty Ltd followed; Held – in making the finding the Commission notes there was no issue the applicant was a party to a contract with the respondent to perform work the value of which exceeded $10; the evidence disclosed the applicant at no time sublet the contract nor employed workers in the performance of it; the applicant only carried out cleaning duties for the applicant from the commencement of the contract in July 2018 until the date of injury on 23 October 2019; her uncontested evidence was that she obtained an ABN at the request of the respondent and solely so she could do work for it; there was no evidence the work carried out by the applicant was incidental to a trade or business carried on by her in her own name or under a business name; in light of the finding above it is unnecessary to consider the question of whether the applicant was an employee or independent contractor; respondent ordered to pay the applicant’s reasonably necessary medical expenses.

Decision date: 16 September 2022| Member: Cameron Burge

Budden v DFB Trading Pty Ltd [2022] NSWPIC 514

Claim for injury to back; claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) (future L2/3 posterior interbody fusion); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 7 December 2004 during her employment with the respondent; Guthrie v Spence, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant (L2/3 posterior interbody fusion) is reasonably necessary medical treatment as a result of an injury to the applicant's back which was contracted by her in the course of her employment with the respondent; deemed date of 7 December 2004; award that the respondent pay the applicant’s future section 60 of the 1987 Act expenses in relation to the proposed surgery.

Decision date: 16 September 2022| Member: Gaius Whiffin

Cottom v Scone Race Club Limited [2022] NSWPIC 519

Application under transitional provisions for a Medical Appeal Panel (MAP) to reconsider its decision; whether MAP received subject documents in an Application to Admit Late Documents (AALD); if so whether the subject documents were considered; whether the transitional provisions applied; whether discretion to grant leave should be exercised; Held – transitional provisions applicable as admitted by the Commission in email correspondence; evidence conclusive that MAP received the subject documents; some support available that the MAP may not have considered them; in exercise of Samuel discretion application refused; subject document raised a fresh injury not referred to the MAP; earlier election to discontinue application for reconsideration when appeal re-instated meant claim of deterioration of referred injury pursuant to s 327(3)(a) of the Workplace Injury management and Workers Compensation Act 1998 not available as no appeal available from one MAP to another; Sleiman v Gaddalia Pty Ltd considered and applied; application rejected.

Decision date: 20 September 2022| Member: John Wynyard

Akkari v Akkari Group Pty Ltd [2022] NSWPIC 520

Issues; sections 4(a) and/or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) injuries to the left shoulder, lumbar spine and right knee disputed; the value of contemporaneous evidence; the weight to be given to expert evidence; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Onassis and Calogeropoulos v Vergottis, Watson v Foxman considered and applied; Held – the applicant suffered injuries to the right shoulder and the cervical spine arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the applicant did not suffer injuries to the left shoulder, lumbar spine and right knee arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the matter is remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment in respect of the right upper extremity (right shoulder) and cervical spine under the Workplace Injury Management and Workers Compensation Act 1998.

Decision date: 20 September 2022| Member: Anthony Scarcella

Saracino v Secure Events and Assets Pty Limited [2022] NSWPIC 521

Application for lump sum benefit; consideration and determination of the factual environment the deceased was in at the time he suffered a fatal cardiac event; Held – on the balance of probabilities that the deceased suffered a disease injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 and that employment was the main contributing factor to the aggravation, acceleration, exacerbation of a disease as the result of activity at the concert.

Decision date: 21 September 2022| Member: Elizabeth Beilby

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Stanisic [2022] NSWPICMP 361

The claimant suffered injury in a motor accident on 30 November 2017; this was a medical dispute about whether the degree of impairment of the psychiatric injury caused by the motor accident was greater than 10%; the claimant was reassessed by both Medical Assessors; improvements noted in the claimant’s condition since the previous assessment partly due to the effects of medication; no statement of principle; Held – claimant reassessed at 9% permanent impairment.

Decision date: 13 September 2022| Panel Members: Principal Member John Harris, Dr Matthew Jones and Dr Michael Hong | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Edward [2022] NSWPICMP 366

The claimant sustained a partial tear of the pectoralis major muscle at the myotendinous junction in a motor accident on 5 March 2017; the medical assessment concerned the extent of permanent impairment; on examination the claimant showed gross restriction of movement of the right upper limb; the claimant’s presentation before the medical assessors was inconsistent because the variation in movement was extensive and fell well outside slight deviations that may be expected on repeated testing; the lack of movement was also inconsistent with surveillance; further there was no wasting in the right upper limb which is grossly inconsistent with the purported negligible range of movement displayed by the claimant to the medical assessors; the absence of wasting was consistent with adequate daily use; the partial tear could not medically explain the gross restriction in right shoulder/upper limb movement; Panel accepted that the partial tear would cause some loss of adduction; having rejected the claimant’s account of the extent of the loss of range of movement as being inconsistent the assessment was modified in accordance with Cl 1.40 of the Motor Accident Permanent Impairment Guidelines; the partial tear of the pectoral major muscle was assessed as analogous to synovial hypertrophy (mild) glenohumeral joint at 4% permanent impairment.

Decision date: 21 September 2022| Panel Members: Principal Member John Harris, Dr Rhys Gray and Dr Shane Moloney | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Evergreen Lifecare Limited v Offner [2022] NSWPICMP 363

Assessment by Medical Assessor (MA) of left upper extremity (shoulder) and cervical spine; appellant submitted that MA incorrectly calculated upper extremity impairment (UEI) based on the recorded left shoulder range of motion; Panel satisfied that the MA made a demonstrable error in either inserting 180 degrees instead of 80 degrees or in his calculation of upper extremity impairment for restricted range of motion in the shoulder; Panel considered that it was open to the MA to conclude on the evidence that no deduction should be made in respect of the injury in the motor vehicle accident in 2014; re-examination; Medical Assessment Certificate revoked.

Decision date: 16 September 2022| Panel Members: Member Carolyn Rimmer, Dr Drew Dixon and Dr Gregory McGroder | Body system: Cervical Spine and Left Upper Extremity

Giardullo v CCH Group Pty Ltd [2022] NSWPICMP 365

Appeal by worker against ½ section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; whether deduction for additional impairment caused by subsequent events lawful; whether subject injury a material factor to such impairment; Held – section 323 of the 1998 Act applies only to prior events; consideration of Johnson v Workers Compensation Commission (Johnson); observations as to why template changed to delete question 8(g) following Johnson; appellant within two categories of State Government Insurance Commission v Oakley ; Medical Assessment Certificate revoked and nil deduction for s 323 of the 1998 Act substituted.

Decision date: 20 September 2022| Panel Members: Member John Wynyard, Dr David Crocker and Dr Margaret Gibson | Body system: Lumbar Spine 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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