Legal Bulletin No. 100
This bulletin was issued on 3 March 2023
Issued 3 March 2023
Welcome to the hundredth 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
Motor Accident Injuries Act 2017; whether the claimant was mostly at fault for the accident pursuant to sections 3.11 and 3.28; claimant was the rider of a motorcycle who attempted an overtaking manoeuvre on a Ford Ranger on a rural road; the Ford Ranger attempted to turn right at the gate of a rural property, causing a collision; claimant travelling with two friends also riding motorcycles; insured driver had two passengers; witness evidence involved conflicting versions of events, question of whose evidence is preferred; Held – the insured was wholly at fault by failing to keep a proper lookout and failing to indicate intention to turn right at a reasonable juncture; claimant had no opportunity to avoid the accident; evidence of two other motorcyclists preferred over the passengers of the insured vehicle, owing to their vested interest in observing the movements of the insured vehicle leading up to the collision; regulated costs awarded.
Decision date: 21 November 2022 | Member: Elizabeth Medland
Motor Accident Injuries Act 2017; miscellaneous claims assessment;self-represented claimant; motor accident not caused by the fault of another person; motor accident caused wholly by the fault of the injured person (claimant); Held – no statutory benefits payable from six months after motor accident; no order as to costs.
Decision date: 16 January 2023 | Member: Gary Patterson
Motor Accident Injuries Act 2017;settlement approval; section 6.23; future economic loss; non-economic loss; most likely future circumstances; 16 weeks pregnant; no harm to unborn child; Held – claim for damages approved.
Decision date: 19 January 2023 | Member: Hugh Macken
Motor Accident Injuries Act 2017;decision issued under section 7.6; breach of duty of care conceded; damages agreed at $1,900,000.00; contributory negligence and apportionment in dispute; Held – contributory negligence apportioned 45% to the Plaintiff and 55% to the insured driver.
Decision date: 13 February 2023 | Member: Terence Stern
Motor Accidents Injuries Act 2017; claim lodged 29 days after the accident; schedule 2(3)(k); miscellaneous claims assessment application; section 6.13(2); weekly payments of statutory benefits are only payable in respect of any period before the claim is made if the regulations allow it; no regulations made yet in respect of section 6.13(2) to allow an insurer to pay a claim for accident weekly statutory benefits from the date of an accident, even if the claim arrives after 28 days; Held –insurer has no choice but to refuse to pay weekly statutory for the period between the date of the accident and when the application for personal benefits lodged; no order as to costs because the claimant is self-represented.
Decision date: 20 February 2023 | Member: Terence O'Riain
Motor Accident Injuries Act 2017; claims assessment; liability admitted; claimant 31-years-old at date of assessment; qualified as a lawyer in 2016; as a result of the accident suffered traumatic fracture of the right clavicle, traumatic fracture of the right transverse process of the T1, traumatic fracture of the right ribs, traumatic fracture of the sternum, soft tissue injury of the cervical spine, soft tissue injury of the central forehead region, laceration to the central forehead region, laceration to the right lower calf, right sided rib fractures, pneumothorax in the right lung, scarring, chronic pain, depression and anxiety; parties agreed that the claimant was entitled to damages for non-economic loss, and economic loss; parties agreed that future economic loss should be allowed by way of a buffer; Held – non-economic loss assessed at $320,000; past economic loss agreed at $188,340 (loss of earnings, loss of superannuation and section 4.5(1)(d) damages), buffer of $475,000 awarded for future economic loss.
Decision date: 21 February 2023 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; settlement approval; 46-year-old female passenger in a stationary vehicle struck from the rear by the insured vehicle at an intersection controlled by traffic lights; injuries were a chipped tooth and soft tissue injury to cervical spine entitled to damages for past economic loss only; Held – the proposed settlement is just, fair and reasonable; settlement approved under Section 6.23 (2)(b).
Decision date: 22 February 2023 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Worker alleges the need for cervical surgery recommended in 2022 results from an injury on 31 July 2018; employer disputes injury and causal nexus between the injury and need for surgery; absence of recorded complaint of neck pain in clinical record or medical histories; consideration of reliability of worker’s evidence in the context of the clinical notes and medical opinion evidence; Held –award for worker for the cost of proposed treatment to the cervical spine.
Decision date: 16 February 2023 | Member: Paul Sweeney
Workers Compensation Act 1987;psychological injury alleged pursuant to section 4(b)(i) and in the alternative section 4(b)(ii); claim pursuant to section 60 in relation to treatment with medicinal cannabis; respondent denies the employment was the main contributing factor to the contraction of disease and/or to the aggravation of disease; it also disputes whether treatment with medicinal cannabis is reasonably necessary; entitlement to weekly compensation was not in issue if the applicant succeeded in establishing injury; Held – pursuant to section 4(b)(ii) the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the aggravation of disease; the respondent is to pay the applicant weekly benefits compensation pursuant to section 37(1); pursuant to section 60 the treatment with medicinal cannabis is reasonably necessary medical treatment as a result of the workplace injury; the respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to section 60 including for the medicinal cannabis.
Decision date: 16 February 2023 | Principal Member: Josephine Bamber
Workers Compensation Act 1987;claim for psychological injury; claim for entitlements pursuant to sections 37, 60 and 66; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b) in relation to which her employment with the respondent was the main contributing factor; Attorney General’s Department v K, State Transit Authority of New South Wales v Chemler and AV v AW considered; Held – the applicant sustained a ‘disease’ injury, pursuant to section 4(b)(i) in relation to which her employment with the respondent was the main contributing factor to the contracture of that ‘disease’ injury; the injury will be deemed to have occurred on 14 August 2019 (that being the date when the applicant last worked with the respondent prior to her incapacity); awards for the applicant pursuant to sections 37 and 60; dispute in relation to the applicant’s claim pursuant to section 66 remitted to the President for Medical Assessment referral in relation to the degree of her whole person impairment.
Decision date: 16 February 2023 | Member: Gaius Whiffin
Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to lumbar surgery; lumbar injury conceded; whether surgery reasonably necessary as a result of injury; where significant abnormal pathology and previous surgery at higher levels of the spine; ongoing thoracic symptoms; where the procedure recommended had changed; Held – the proposed lumbar surgery is reasonably necessary as a result of the injury to the applicant’s lumbar spine; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 16 February 2023 | Member: Rachel Homan
Workers Compensation Act 1987; whether applicant had sustained a psychological injury arising out of her employment which was a substantial contributing factor; sections 4 and 9A; respondent alleged any injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of section 11A(1), in this case discipline; whether notification of Public Health Order requiring the respondent’s employees to be vaccinated and related guidelines constituted disciplinary action for the purposes of section 11A(1) or clear indication of at least the possibility of disciplinary action (given later) marked the commencement of action with respect to discipline; claim for incapacity by reason of psychological injury accepted in good faith by respondent; Held – sufficient evidence to establish that applicant suffered a psychological injury during the course of her employment and that such injury was not a consequence of a disciplinary process at the time the condition developed; any disciplinary process occurred later in time and was not a predominant cause of psychological injury; award for the applicant.
Decision date: 16 February 2023 | Member: Christopher Wood
Workplace Injury Management and Workers Compensation Act 1998;claim for permanent impairment compensation, weekly payments and medical expenses in respect of a frank injury to the neck and shoulders and an injury by way of aggravation of a disease process to the cervical spine and upper extremities (shoulders) due to nature and conditions of employment with both respondents; the respondents each deny liability, the first respondent denied there was any injury caused by the nature and conditions of employment; said that even if there was such an injury the second respondent would be liable as the last employer whose employment was in the nature of which alleged caused any aggravation; disputed the applicant’s claimed incapacity and also alleged the applicant’s claim was out of time by virtue of the operation of sections 254 and 261; the second respondent denied the nature and conditions of the applicant’s employment with it relevantly caused any aggravation to a disease process, disputed the claim of incapacity and also relied on the time limit provisions in section 254 and 261; Held – the applicant suffered an injury to his neck and shoulders in the course of his employment with the first respondent and by way of aggravation of a disease process to his cervical spine and upper extremities (shoulders) with a deemed date of injury of 20 November 2009 with the second respondent; the applicant’s claim against the first respondent in the interests of EML and the second respondent is not precluded from being made by virtue of the operation of sections 254 and 261; remit the claim for permanent impairment compensation arising from both injuries to the President of the Personal Injury Commission for referral to a Medical Assessor; the claims for medical expenses and weekly compensation are adjourned for further telephone conference after the issuing of any Medical Assessment Certificate regarding the claim for permanent impairment compensation pursuant to Jaffarie v Quality Castings Pty Ltd.
Decision date: 21 February 2023 | Member: Cameron Burge
Dispute over whether claimant suffered consequential conditions which caused her to trip and aggravate them in 2013; whether the trip and fall constituted a novus actus interveniens; whether medico-legal opinion supported claim; whether claimant’s evidence probative; parties agreed that the original injury to the left knee in 2011 was aggravated in the trip and fall; Held – claimant failed to establish that the consequential conditions existed at the time of the trip; claimant’s evidence dealing with events going back 10 years, during which time she had come to a total left knee replacement in 2016 which had to be revised in 2017, and an arthroscopic medial meniscectomy of the alleged right knee consequential condition in 2017; contemporaneous evidence did not support allegation of right knee and lower back conditions prior to the 2013 event; Mason v Demasi considered; expressions of opinion and fact from claimant rejected as being unreliable; Coote v Kelly and Northam v Kelly considered; medico-legal expert for claimant failed to address the issue until final report, which was inaccurate and confused; medico-legal expert for the respondent accepted as according with probabilities; award for the respondent.
Decision date: 21 February 2023 | Member: John Wynyard
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; medical review panel; review of certificate of Medical Assessor (MA) Friend who assessed 5% whole person impairment (WPI); dispute related to assessment of permanent impairment; Held –diagnosis of major depressive disorder, certificate of MA Friend revoked; new certificate issued; assessment of 11% WPI plus 2% for the effects of treatment; final WPI of 13%.
Decision date: 7 February 2023 | Panel Members: Member Susan McTegg, Dr Christopher Rikard-Bell and Dr Wayne Mason| Injury module: Mental and Behavioural
Motor Accident Compensation Act 1999; assessment of permanent impairment;the claimant suffered injury in a motor vehicle accident; the dispute related to the ingestion of anti-inflammatory medications; Nurofen; Medical Assessor (MA) Berry assessed 0% whole person impairment (WPI); symptoms but no clinical signs; no endoscopy or histological findings; Held – clause 1.247 of the Motor Accident Permanent Impairment Guidelines Version 1 (Effective from 1 June 2018) states upper digestive tract disease must be assessed as 0 – 2% WPI class 1 impairment; gastrointestinal symptoms caused by use of anti-inflammatory medications has resulted in 0% WPI; certificate of MA Berry affirmed.
Decision date: 13 February 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Margaret Gibson| Injury module: Digestive
The claimant suffered injury in a motor accident on 15 September 2017 whilst riding a bicycle when he was struck by the insured vehicle and thrown on to the kerb of the road; the medical dispute concerned whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had ongoing dysmetria in the cervical spine and assessed at 5% consistent with previous assessments in the matter; the claimant underwent a left shoulder arthroscopic lateral clavicle excision and minimal subacromial decompression bursectomy; the claimant was assessed by the Medical Assessor (MA) on the Panel at 7% for loss of range of motion of the shoulder; the claimant contended that an allowance for resection under Table 27 of American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition (AMA 4) should also be included; clause 1.65 of the Motor Accident Permanent Impairment Guidelines Version 1 (Effective from 1 June 2018) provides that section 3.1M of AMA 4 (pages 58-64 which contains Table 27) “should be rarely used in the context of motor accident injuries” and that the MA “must take care to avoid duplication of impairments”; section 3.1m of AMA 4 noted that “impairments from the disorders considered in this section are usually estimated by using other criteria”; clause 1.65 is consistent with the note in section 3.1M of AMA 4; an assessment in this matter which included an allowance for both the resection and the assessable loss of range of movement would involve a “duplication of impairments” given the extent of the loss of range of motion; no allowance made for the resection; Held – claimant assessed at 5% permanent impairment in respect of the cervical spine and 7% for the left shoulder; original assessment confirmed.
Decision date: 15 February 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Clive Kenna | Injury module: Spine and Lower Limb
The claimant suffered injury in a motor accident on 29 October 2017 when he was a passenger in a vehicle which rear ended another vehicle; the medical dispute was whether the degree of impairment of the injury caused by the motor accident was greater than 10%; findings made about the nature of the accident as the speed of the impact was in dispute and the extent of the deceleration forces imposed on body parts from the motor accident can determine the severity of the injury; claimant’s account rejected because it was inconsistent with photographic evidence showing minimal damage, absence of airbag deployment, other witness statements and the opinion of Dr McIntosh; claimant suffered soft tissue injuries to the neck, back and shoulders; lumber spine assessed at diagnosis related estimate (DRE) II due to non-radicular symptoms; the examination by the Medical Assessor showed no radiculopathy, no radicular symptoms, no muscle guarding or spasm; there is bilateral restricted range of motion (3/4) on both sides which is not dysmetria; claimant assessed at DRE I for the cervical spine; finding made that the claimant only sustained a minor strain to the shoulders due to the minimal forces involved, absence of direct injury and absence of immediate complaint of shoulder movement; any shoulder injury would have resolved over a short period; ongoing shoulder problems likely due to heavy work activities causing the pathology as evidenced by the surveillance; observations made on the different legal tests for deduction due to pre-existing conditions under the workers compensation legislation and the motor accident legislation; Held – claimant assessed at 5% permanent impairment in respect of the lumbar spine; original assessment revoked.
Decision date: 16 February 2023 | Panel Members: Principal Member John Harris, Dr Paul Curtin and Dr Mohammed Assem | Injury module: Spine and Upper Limb
The claimant suffered injury in a motor accident on 6 February 2017 when she was in a vehicle rear ended by the insured vehicle; the medical dispute was whether the degree of impairment of the psychological injury caused by the motor accident was greater than 10%; Panel satisfied that psychological condition was caused by the motor accident due to temporal link and the nature of the motor accident; opinion provided by insurer suggesting no causative link based on other medical opinion suggesting physical effects of accident had ceased; Panel preferred findings of another Review Panel that the claimant continued to suffer from a neck condition caused by the motor accident; Held – claimant assessed at 7% permanent impairment in respect of the psychological injury; original assessment revoked.
Decision date: 22 February 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Matthew Jones | Injury module: Mental and Behavioural
Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; claimant alleged injuries to cervical spine and left shoulder; claimant alleged she had radiculopathy and a disc protrusion and tear of the annulus fibrosis at C6/7; Held – claimant injured her left shoulder in the accident causing bursitis but no evidence of a non-minor injury; radiology three months after accident did not demonstrate tear; radiology a year later demonstrated tear therefore tear not caused; claimant did not have two signs of radiculopathy (as per clause 5.8 of the Motor Accident Guidelines Version 9, 25 November 2022) at the time of assessment; report of claimant’s expert did not satisfy Panel claimant had two signs of radiculopathy when examined by him.
Decision date: 22 February 2023 | Panel Members: Member Belinda Cassidy, Dr Alan Home and Dr Les Barnsley | Injury module: Cervical Spine and Shoulder
Workers Compensation Medical Appeal Panel Decisions
Injury to bilateral upper extremities; worker appealed; submitted that the Medical Assessor (MA) made a demonstrable error and made an assessment of the basis of incorrect criteria; the role of the MA is to make an independent assessment on the day of examination in accordance with the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; the MA appeared to base his assessment on a mid-range point between the opinion of the Independent medical expert (IME) qualified on behalf of the applicant and the IME qualified on behalf of the respondent; Held – a re-examination was considered necessary in the circumstances; Medical Assessment Certificate revoked.
Decision date: 16 February 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson and Dr Margaret Gibson | Body system: Right and Left Upper Extremity
The appellant submitted that the Medical Assessor (MA) erred in his assessment regarding scarring; Held – the Panel agreed that the MA should have used TEMSKI in his assessment; evidence supported a finding of 1% WPI for scarring; Medical Assessment Certificate revoked.
Decision date: 16 February 2023 | Panel Members: Member Deborah Moore, Dr David Crocker and Dr Drew Dixon | Body system: Scarring
Assessment of degree of permanent impairment resulting from psychiatric injury; appellant asserted that the Medical Assessor’s (MA) ratings of her impairment in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel and social functioning did not accord with the history the MA obtained or with the medical evidence; appellant submitted that the MA did not provide sufficient reasons for his ratings for those categories; Held – Appeal Panel did not accept those submissions and found that the MA provided sufficient reasons for his ratings and that his ratings he made were available on the evidence; Medical Assessment Certificate confirmed.
Decision date: 16 February 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological
Workplace Injury Management and Workers Compensation Act 1998; appellant assessed for whole person impairment (WPI) from injury to lumbar spine and digestive system; appellant previously had microdiscectomy at L5/S1 level and made a full recovery; whether deduction of 10% WPI under section 323 with respect to lumbar spine was an error; Held – Appeal Panel held it was an error; Medical Assessment Certificate revoked.
Decision date: 20 February 2023 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: Lumbar Spine, Digestive System and Scarring (TEMSKI)
Workplace Injury Management and Workers Compensation Act 1998;employer alleges error by Medical Assessor (MA) in failing to make a deduction for a previous injury or pre-existing condition pursuant to section 323 or in failing to give adequate reasons for not making a deduction; Panel determines that MA turned his mind to the section 323 issue and concluded that there was insufficient evidence to make a deduction; Panel was of the same opinion; Pereira v Siemens Ltd considered; Held –Medical Assessment Certificate confirmed.
Decision date: 20 February 2023 | Panel Members: Member Paul Sweeney, Dr James Bodel and Dr Gregory McGroder | Body system: Lumbar Spine
Chronic Regional Pain Syndrome (CRPS); appellant complained on appeal about the Medical Assessor’s (MA) failure to assess impairment from CRPS; MA provided sufficient and clear reasons why CRPS was not assessed because on his clinical findings on the day of examination there was no rateable impairment; the MA is entitled to rely on his clinical findings on the day of examination; Held – Medical Assessment Certificate confirmed.
Decision date: 21 February 2023 | Panel Members: Member Jane Peacock, Dr Drew Dixon and Dr Margaret Gibson | Body system: Right and Left Upper Extremity, Right and Left Lower Extremity and Complex Regional Pain Syndrome.
Psychological Injury; appellant alleged error in the assessment in four of the categories under the Permanent Impairment Rating Scale (PIRS); social and recreational activities, travel, social functioning, concentration, persistence and pace; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.
Decision date: 21 February 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological
Workplace Injury Management and Workers Compensation Act 1998;employer alleges error by Medical Assessor (MA) in assessing abnormal motion of the left upper extremity for a neurological condition contrary to Chapter 2.9 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 March 2021; in assessing a grade III deficit for injury to the right upper extremity; in failing to record, consider, or make a deduction for a pre-existing condition of carpal tunnel syndrome pursuant to section 323; Held – as the impairment of the worker’s left upper extremity resulted solely from a neurological injury the MA erred in assessing both loss of motion and neurological impairment; there was no evidence of error or incorrect criteria in the methodology used to assess a grade III deficit of the right upper extremity in accordance with Table 16-15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; there was no satisfactory evidence of a previous injury or pre-existing condition to permit a deduction being made pursuant to section 323; Medical Assessment Certificate (MAC) revoked and new MAC issued.
Decision date: 22 February 2023 | Panel Members: Member Paul Sweeney, Dr Neil Berry and Dr Margaret Gibson | Body system: Right and Left Upper Extremity
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings; PAWE; meaning of earnings; Schedule 1, clause 4; self-employment; business expenses; proceeds of the business; clause 3(2)(b); whether earnings as an earner are the gross profit or net income of the business; COVID-19 disaster allowance; Held – the reviewable decision is affirmed.
Decision date: 20 February 2023 | 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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