Legal Bulletin No. 115
This bulletin was issued on 16 June 2023
Issued 16 June 2023
Welcome to the hundred and fifteenth 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 Decision
Workers Compensation Act 1987; section 4(b)(ii); aggravation of a disease injury; alleged failure to provide adequate reasons; no error identified on appeal; Kowalski v Repatriation Commission and Beale v Government Insurance Office of NSW applied; appeal dismissed; Held – the Certificate of Determination dated 30 May 2022 is confirmed.
Decision date: 8 June 2023 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Preliminary assessment and determination of insurer’s application for exemption under section 7.34(1)(b) Motor Accident Injuries Act 2017; application opposed by the claimant; liability denied for claim by insurer; breach denied; insurer relies on defences in Part 7 of the Civil Liability Act 2002; factual dispute between the parties; insurer intends to call non-parties to give evidence; insurer argues that claim gives rise to complex legal, factual, and liability issues; insurer argues that evidence given under oath or affirmation required; Held – claim involves complex legal issues; court hearing will resolve the matters in dispute in the claim more efficiently and effectively; claim not suitable for assessment; recommendation that the claim be exempt from assessment.
Decision date: 15 March 2023 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; settlement approval; $7,000; future economic loss only; left hand fracture; fractures to two fingers; claimant was travelling between the parked cars and the first lane of traffic on his motorcycle and the insured driver opened the driver’s side door which struck the claimant’s left hand; that the only ongoing impact of the injury he sustained is occasional swelling of the left fifth finger (pinky); minimally displaced avulsion fracture of the left middle finger and middle flank; no permanent impairment; little potential impact on any future earning capacity or future economic loss; contributory negligence; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 22 May 2023 | Member: Hugh Macken
Motor Accident Injuries Act 2017; settlement approval; $149,841; claimant the daughter of the deceased involved in fatal motor accident; compensation to relatives action; domestic assistance; economic loss; contributory negligence; voluntary assumption of risk; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 23 May 2023 | Member: Hugh Macken
Motor Accident Injuries Act 2017; settlement approval; $195,000; 48-year-old male; past and future economic loss only; 1% whole person impairment; left shoulder surgery, hip pain and aggravation of pre-existing low back degenerative condition; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 26 May 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; settlement approval; 29-year-old rider of a bicycle involved in a collision with the insured motor vehicle; insurer wholly admitted liability; sustained injuries to left hand being avulsion fracture of left little finger and comminuted fracture of left middle finger; no entitlement to non-economic loss; claim for past and future economic loss; Held –the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23 (2)(b).
Decision date: 29 May 2023 | Member: David Ford
Motor Accident Injuries Act 2017; assessment of claim for damages under Division 7.6; liability admitted; claim limited to non-economic loss; principles applicable to assessment; claimant a 50-year-old male who suffered injuries when he was struck by the insured vehicle; claimant was standing at the corner when the insured driver lost control of her vehicle and mounted the footpath, pinning the claimant against a tree; skin grafts; surgical scarring; continues to experience pain; ongoing problems with gait; Held – section 7.36(4); the amount of damages assessed in respect of this claim is $450,000.
Decision date: 29 May 2023 | Member: Gary Patterson
Workers Compensation non-Presidential Member Decisions
Claim for weekly benefits for balance of 130 weeks and past medical expenses; liability accepted for injury to cervical spine; liability for injury to lumbar spine and right upper extremity disputed; consideration of Wollongong Nursing Home Pty Ltd v Dewar; Held – the applicant sustained injury to her lumbar spine and right upper extremity, as well as to her cervical spine; the applicant had no current work capacity during the period in dispute; award for the applicant of weekly benefits; and medical expenses incurred for injury to her cervical spine, right upper extremity, and lumbar spine.
Decision date: 1 June 2023 | Member: Senior Member: Kerry Haddock
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; disputed claim in relation to chronic regional post-electric pain disorder; Held – applied Elsworthy v Forgacs Engineering Pty Ltd that whether there is a diagnosis of chronic regional post-electric pain disorder (affecting the left upper extremity, cervical spine, ear, nose, throat and related structures and nervous system) is a matter for a Medical Assessor (MA); matter remitted to the President of the Personal Injury Commission for referral to a MA.
Decision date: 1 June 2023 | Member: Karen Garner
Claim for cost of surgery on the cervical spine; whether injury occurred on date of accident; whether later treatment caused by accepted left shoulder surgery; Held –evidence of insufficient weight to meet onus as to either injury or main contributing factor; Pearce v Secretary Department of Communities and Justice considered; Kooragang Cement Pty Ltd v Bates considered; Qannadian v Bartter Enterprises Pty Limited referred to; award for the respondent.
Decision date: 2 June 2023 | Member: John Wynyard
Workers Compensation Act 1987; claim for provision of gratuitous domestic assistance to the applicant pursuant to section 60AA during period of hospitalisation; applicant was undergoing surgery as a result of the accepted injury; costs of the surgery, hospital care and accommodation for the applicant’s wife/carer were paid for by the respondent; respondent disputed that provision of assistance was reasonably necessary, as the applicant was being provided with care by hospital staff during the period of hospitalisation; respondent accepted liability for payment for domestic assistance on the day that the applicant was admitted to hospital and the day that he was discharged; consideration of Williams v Wollongong City Council; Nicholson v Nicholson and Anor and Quintano v B W Rose Pty Ltd & Anor; Held – It was not reasonably necessary for gratuitous domestic assistance to be provided during the period when the applicant was hospitalised, and services were being provided by hospital staff; award for the respondent.
Decision date: 5 June 2023 | Senior Member: Kerry Haddock
Treatment expenses; GP recommendation for provision of mattress with hot and cold controls, massage char and massage gun opposed by respondent as not reasonably necessary treatment for an accepted lumbar spine injury; Held – the fact the applicant’s GP is the only doctor who recommends the treatment does not of itself preclude it from being reasonably necessary; the GP had provided a supplementary handwritten report in which she specifically addressed the issues with which the mattress and massage gun would assist the applicant; she did not do so with regards to the massage chair; the provision of the treatment recommended by the GP is not of a nature which would preclude the applicant also undertaking the treatment regime recommended by his treating specialists; it is not necessary for the proposed treatment to be the only appropriate treatment available in order to be reasonably necessary; the mattress and massage gun are reasonably necessary; award for the respondent on the claim for the massage chair; Diab v NRMA Limited and Rose v Health Commission (NSW) followed.
Decision date: 5 June 2023 | Member: Cameron Burge
Workers Compensation Act 1987; accepted right knee injury; accepted consequential conditions to the left knee and left ankle; disputed consequential condition of the right ankle; claim for permanent impairment compensation pursuant to section 66; Kooragang Cement Pty Ltd v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan and Moon v Conmah Pty Limited considered and applied; Held – the applicant has suffered a consequential condition of the right ankle as a result of the accepted injury to the right knee on 22 September 2013.
Decision date: 6 June 2023 | Member: John Turner
Workers Compensation Act 1987; psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66; accepted injury pursuant to sections 4(a), 9A and 11A(3); respondent raised defence pursuant to section 11A; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to demotion, discipline, dismissal and/or provision of employment benefits; Held – applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 11A(3); injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to demotion, discipline, dismissal and/or provision of employment benefits; matter referred to President of the Personal Injury Commission for referral to a Medical Assessor for determination of whole person impairment.
Decision date: 6 June 2023 | Member: Karen Garner
Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of left carpal tunnel release; respondent disputes that proposed surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).
Decision date: 6 June 2023 | Member: John Isaksen
Hearing loss; claim for hearing aids; whether respondent was a noisy employer; Held – the respondent was the last employer by whom the worker was employed in an employment to the nature of which his binaural hearing loss was due; although much of the equipment which the applicant used did not expose him to noise above the relevant threshold, he nevertheless was repeatedly exposed to prolonged noise from a petrol powered leaf blower for up to two hours per day, which the evidence discloses had a noise level greater than 90 decibels; although the respondent’s lay witnesses provided evidence that the applicant did not have to use the leaf blower for as long as he stated he had to, they were not regular attendees in the workplace and were not familiar with his work routines; respondent ordered to pay the costs of and incidental to the applicant’s proposed hearing aids.
Decision date: 6 June 2023 | Member: Cameron Burge
Permanent impairment compensation; whether the applicant suffered injury to his left shoulder in addition to other accepted body systems in a fall from approximately three metres at work; Held – the applicant suffered an injury to his left shoulder in the accepted fall; there was uncontested evidence of complaint of left shoulder pain and referral for X-Ray one day post-fall; although the applicant’s treating doctors thereafter focused on his cervical spine injury as the cause of his left arm issues, that fact does not preclude the presence of a left upper extremity injury as found on clinical examination by Dr Herald, in circumstances where the applicant gave accepted statement evidence of ongoing left shoulder and arm issues since the fall; matter remitted to President of the Personal Injury Commission for referral of all claimed body systems to a Medical Assessor for determination of the applicant’s permanent impairment.
Decision date: 6 June 2023 | Member: Cameron Burge
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; claim for neck surgery and associated treatment; the claimant had a long history of neck pain with scans showing pre-existing degenerative spinal canal stenosis; motor accident involved a minor sideswipe collision which exacerbated neck symptoms without aggravating underlying pathology; claimant’s underlying severe spinal stenosis and early myelopathy was progressive and fluctuating; scans showed no traumatic changes; minimal impact from motor accident; ongoing symptoms due to underlying pathology; findings made that exacerbation ceased after six months and ongoing condition unrelated to the motor accident; finding made that there was no causal relationship between the accident and the need for surgery; Held – original assessment on cause of surgery revoked; finding made that surgery would assist in recovery.
Decision date: 26 May 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Michael Couch | Injury module: Treatment Type: Surgery and Radiological Investigations
Motor Accidents Compensation Act 1999; the claimant suffered injuries in a motor accident on 4 March 2016; the dispute related to a review of the Medical Assessor’s (MA) Certificate in respect of injuries to the claimant’s cervical spine, left shoulder, lumbar spine, left knee, right knee, and upper digestive system; the application alleged that the medical assessment was incorrect in a material respect; this was because the MA had ascribed to the incorrect percentage impairment in Table 64 on page 85 of the American Medical Association Guides to the Evaluation of Permanent Impairment Version 4 in relation to the partial meniscectomy of both of the claimant’s knees; the Review Panel accordingly determined that it was necessary to re-examine the claimant; Held – the Certificate of the MA is revoked; the degree of permanent impairment caused by the motor accident is 8% whole person impairment.
Decision date: 30 May 2023 | Panel Members: Member Robert Foggo, Dr Ian Cameron and Dr Chris Oates | Injury module: Spine, Upper and Lower Limb and Digestive
The claimant suffered injury in a motor vehicle accident on 1 September 2016; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were neck, left shoulder -fracture of the left clavicle and soft tissue injury; dispute as to presence of radiculopathy; whether disc herniation at the C6/7 level caused by the accident; Held – Panel accepts opinion of Medical Assessor Korber that the disc herniation at C6/7 occurred subsequent to the accident and was not caused by the accident; the Panel did not find radiculopathy; claimant sustained soft tissue injury to the cervical spine; no non-verifiable radicular complaints; assessed as diagnosis related estimate (DRE) impairment category 1 resulting in 0% WPI; fracture left clavicle healed and not result in permanent impairment; claimant sustained soft tissue injury to the left shoulder with aggravation of the pre-existing degenerative changes; due to inconsistency in range of motion shoulder impairment assessed by analogy; mild and inconstant joint crepitation give rise to 2% WPI; Panel finds total WPI of 2%.
Decision date: 31 May 2023 | Panel Members: Member Susan McTegg, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; the claimant was a front seat passenger who suffered injury on 25 November 2017 when the insured vehicle T-Boned the claimant’s vehicle on the passenger side; assessment of permanent impairment; claimant re-examined; delayed onset of complaint of left hip pain is relevant but not determinative on injury: AAI Ltd v McGiffen referred to; findings on MRI scan consistent with direct trauma from airbag deployment to left side of body; no pre-existing or other factors to explain left hip symptoms which were first reported two months after accident; examination findings for neck and back showed diagnosis related estimate (DRE) Category I; assessment of left shoulder and left hip combined at 8%; Held – original assessment revoked; finding made that claimant was below the threshold for permanent impairment.
Decision date: 31 May 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; medical assessment of treatment (permanent impairment) and insurer’s review under section 7.26; claimant involved in accident on 11 April 2019; knocked off his motorbike by car reversing at an intersection; original whole person impairment (WPI) assessment as 19%; further assessment undertaken by Medical Assessor Lim as 14% WPI; claimant had pre-existing mental health issues and significant issue about pre-accident functioning and calculation of impairment; Held – Panel was satisfied that claimant developed post-traumatic stress disorder and aggravated two pre-existing disorders (obsessive compulsive disorder and generalised anxiety disorder); current impairment assessed as 18% WPI and pre-existing impairment assessed as 7% WPI caused by the accident 11%.
Decision date: 1 June 2023 | Panel Members: Member Belinda Cassidy, Dr Paul Friend and Dr Michael Hong | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; these were disputes about medical expenses and whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 19 October 2019; insurer applied for review of Medical Assessor (MA) Home’s certificate dated 18 September 2022 finding the claimant suffered a non-threshold injury and that a claim for reimbursement of pain reduction medication expenses was aiding the claimant’s recovery; the claimant complained that accident caused right and left shoulder, hips and spinal injuries; complained about left shoulder pain soon after the motor accident and submitted that she sustained a left shoulder tear in the motor accident which meant the injury was classified as non-threshold injuries; scan evidence showed changes that appeared to be acute; Panel re-examined claimant; Held – the Panel was satisfied that the claimant sustained a left shoulder, full thickness tear in the motor accident; the accident did not cause the right shoulder condition; the Panel was satisfied that the claimant’s medication was aiding recovery; other injuries were soft tissue injuries so were threshold injuries as defined by section 1.6; Medical Assessment Certificates confirmed.
Decision date: 2 June 2023 | Panel Members: Member Terence O'Riain, Dr Clive Kenna and Dr David Gorman | Injury module: Treatment Type: Medication - Prescription Injury Module: Spine, Upper and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Whether Medical Assessor was required to make a deduction for secondary psychological injury; Appeal Panel found Medical Assessor was not; Held – Medical Assessment Certificate upheld.
Decision date: 1 June 2023 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
The appellant sought to introduce fresh evidence that it said contradicted the assertions made by the worker as to his current social functioning; the Panel accepted the evidence but found that it did not contradict the worker’s evidence regarding social functioning; Held – Medical Assessment Certificate confirmed.
Decision date: 2 June 2023 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment (WPI) of 9% for psychological injury; whether Medical Assessor had erred by referring to an element of the appellant’s separation; whether error made in referring to a physical difficulty experienced by the appellant; whether section 323 deduction made on incorrect grounds; Held – appeal dismissed; appellant’s submissions misconceived if not mischievous: claim that no section 323 deduction possible if pre-existing condition asymptomatic patent nonsense; submissions as to Psychiatric Impairment Rating Scale (PIRS) categories opaque, difficult to follow and irrelevant.
Decision date: 5 June 2023 | Panel Members: Member John Wynyard, Professor Nick Glozier and Dr Doug Andrews | Body system: Psychological/Psychiatric
The appellant submitted that the Medical Assessor erred in his classifications in 4 of the Psychiatric Impairment Rating Scale (PIRS) categories; Panel found no error with respect to 3 of the categories but error in the category of concentration, persistence and pace; Held –Medical Assessment Certificate revoked.
Decision date: 6 June 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Motor Accident Injuries Act 2017; merit review; dispute about the amount of weekly payments of statutory benefits payable under Division 3.3; where the claimant was an earner but not employed immediately before the accident; JobSeeker payments from Centrelink; Schedule 1 clause 4(1) to be applied to calculate claimant’s pre-accident weekly earnings (PAWE); Held – the reviewable decision is set aside; matter remitted to insurer for re-determination.
Decision date: 12 May 2023 | 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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