Legal Bulletin No. 133
This bulletin was issued on 20 October 2023
Issued 20 October 2023
Welcome to the one hundred and thirty third 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; issue estoppel; whether employer estopped from denying injury as a result of previous Certificate of Determination which entered consent orders; whether Member erred in finding the injury the subject of the present proceedings was the same injury the subject of the prior consent orders; Held – the Certificate of Determination dated 2 December 2021 is revoked; the matter is to be remitted to a different member for re-determination.
Decision date: 6 October 2023 | Before: Acting Deputy President Kylie Nomchong SC
Workers compensation; injury sustained in dog attack while working from home; whether the injury in the course of employment; section 4 of the Workers Compensation Act 1987; whether employment was a substantial contributing factor to the injury; section 9A of the Workers Compensation Act 1987; Held – the Certificate of Determination dated 24 October 2022 is confirmed.
Decision date: 10 October 2023 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decision
Motor Accident Injuries Act 2017; claimant injured in a rear end collision when stopped at a traffic light; insurer issued a written direction under sections 6.25 and 6.26 requiring the claimant to provide the requested particulars of her claim; claimant provided a written response to the request for particulars; insurer claimed response non-compliant and claim taken to be withdrawn by operation of sub-section 6.26(3); Golding v NRMA Insurance Limited, Hospital Products Ltd v United States Surgical Corporation, Isho v Insurance Australia Limited t/as NRMA Insurance, Paget v AAI Limited t/as Suncorp Insurance, Rahman v Al-Maharmeh, Smith v Grant, and Walker v Howard applied or followed; Held – claimant has met the requirements of section 6.25 and has provided “relevant particulars” sufficient to enable the insurer, as far as practicable, to make a proper assessment of her full entitlement to damages; claimant not taken to have withdrawn her claim; unnecessary to consider whether claimant has a full and satisfactory explanation for her alleged failure to provide the required particulars; unnecessary to consider whether damages claimant is likely to be awarded exceed 25% of the maximum amount for non-economic loss; both parties have used their best endeavours to settle the claim before referring the matter for assessment.
Decision date: 6 October 2023 | Member: Ray Plibersek
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; application by uninsured employer pursuant to section 145(3); applicant disputed date of injury; that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease; incapacity; and the reasonable necessity of medical treatment; applicant relied on a defence pursuant to section 11A with respect to the provision of employment benefits; consideration of Hamad v Q Catering Limited, Paric v John Holland (Constructions) Pty Ltd, AV v AW, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, ACR v Grace Worldwide Pty Ltd, Kooragang Cement Ltd v Bates, Ponnan v George Weston Foods Ltd, Manly Pacific International Hotel Pty Ltd v Doyle, Irwin v Director-General of Education, Murphy v Allity Management Services Pty Ltd, and State of New South Wales (Central Coast Local Health District) v Bunce; Held – second respondent sustained aggravation, acceleration, exacerbation or deterioration of disease, to which employment with applicant was the main contributing factor; second respondent had work capacity during part of period in respect of which payments made; medical treatment, including provision of a support dog, was reasonably necessary; the applicant did not have a defence to the claim pursuant to section 11A; amount payable to first respondent by applicant reduced.
Decision date: 5 October 2023 | Senior Member: Kerry Haddock
The applicant sought referral to a medical assessor for whole person impairment arising from an injury to both her upper extremities; injury was disputed as was the relevant body parts injured and whether maximum medical improvement had been reached; Held – The applicant has sustained an injury in the employ of the respondent to her left and right upper extremities (hand, wrist and elbow); her work with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Decision date: 5 October 2023 | Member: Lea Drake
Workers Compensation Act 1987; federal jurisdiction; allegation of injury pursuant to section 4(b); accepted that the applicant interstate resident and respondent an entity of the State of New South Wales; respondent contended that it was arguable that Commission exercising judicial power; Citta Hobart Pty Ltd v Cawthorn referred; Kanajenahalli v State of New South Wales discussed; finding in Kanajenahalli not of general application; causation of injury relevant to section 4(b); Australian Padding Co Pty Ltd v Zarb and AV v AW discussed; rights of workers arises at time of injury; Hochbaum v RSM Building Services Pty Ltd applied; federal workers compensation scheme may not be analogous with state scheme; discussion of other factors suggesting exercise of power may be administrative or judicial; defence of federal jurisdiction clearly arguable; application to remit matter to President on a question of law refused as question framed could not be determined; Held – opinion that it was arguable Commission exercising judicial power; proceedings dismissed.
Decision date: 6 October 2023 | Principal Member: John Harris
Workers Compensation Act 1987; worker alleges psychological injury as a result of meeting with supervisors at which he was stood down from driving after disclosing a diagnosis of bipolar disorder respondent denies injury; that employment the main contributing factor to injury; and, in the alternative, relies on section 11A(1); Held – worker suffers from an inadequately disclosed pre-existing psychological condition; experienced an exacerbation of that condition by a physical illness; and experienced further exacerbation by the circumstances surrounding meeting; leave to the parties to put on further submissions within 21 days as to whether the applicant’s employment was the main contributing factor to the exacerbation.
Decision date: 6 October 2023 | Member: Paul Sweeney
Workers Compensation Act 1987; agreed by the parties that applicant had a psychological injury but respondent contended it did not arise out of her employment as she was on leave from service with the respondent at the time a search warrant was executed by officers of the respondent at her home; applicant stood down and suspended from duty on full pay while criminal charges against her and other serving officers proceeded; respondent also alleged such injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of section 11A; in this case discipline; respondent in seeking to discharge its accepted onus of proof relied in part on redacted documents; limited evidence on of the basis of the respondent’s decision to carry out the disciplinary process; what it knew or could have known by reasonable enquiry; North New South Wales Local Area Health Network v Heggie, Jeffrey v Lentpile, Commission of Police v Linahan, and Commission of Police v Minehan discussed; Held – the applicant suffers from a psychological injury arising out of her employment with the respondent; the respondent had not discharged its onus of proof under section 11A and the Commission could not be satisfied on balance that its actions for the purposes of section 11A were reasonable; award for the applicant with the respondent to pay the applicant’s reasonable and necessarily incurred expenses pursuant to section 60.
Decision date: 9 October 2023 | Member: Christopher Wood
Workers Compensation Act 1987; worker a bus driver injured during an altercation with a passenger; passenger initiated the incident assaulting the driver on the bus; liability denied on the basis of sections 4 and 14(2), and CCTV footage; Held – the applicant remained in the course of his employment during the whole period during three assaults and further the applicant’s actions did not amount to serious and wilful misconduct within the meaning of section 14(2); JR and DI Dunn Transport Pty Ltd, Sawle v Macadamia Processing Co Pty Ltd and Whittingham v Ascott Air Conditioning Pty Ltd applied; award for the applicant for weekly benefits.
Decision date: 9 October 2023 | Member: Diana Benk
Claim for lump sum compensation in respect of accepted right knee injury; whether consequential conditions at lumbar spine and left knee as a result of the right knee injury; whether proper foundation for acceptance of expert opinion; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held – the applicant sustained consequential conditions at lumbar spine and left knee; matter remitted to President for referral to a Medical Assessor.
Decision date: 9 October 2023 | Member: Rachel Homan
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; medical assessment of whole person impairment and insurer’s review under section 63; claimant injured in accident in June 2017; alleged injuries to neck, left shoulder and back; Medical Assessor (MA) Miller found no injury to back or left shoulder and assessed neck injury at 22% (DRE IV due to cervical fusion and decompression surgery reduced by 10% for a pre-existing condition); issue of causation by insurer due to no complaint of any accident-related injuries to anyone for 12 months and no mention of motor accident in GP notes for 16 months; claim made late; Held – claimant’s evidence not reliable; uncertain of dates and events; explanations for failure to report any injury from date of accident not plausible; history given to two hospitals of left shoulder injury occurring in bathroom at home a year after accident correct and consistent with other histories; no significant injury to neck, no injury to left shoulder; claimant denied injuring his back in the accident; no impairment caused by accident-related injuries; no real issue of principle; certificate of MA revoked.
Decision date: 22 June 2023 | Panel Members: Member Belinda Cassidy, Dr Chris Oates, and Dr Drew Dixon | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) McGrath who determined that the claimant did not have a WPI of greater than 10%, namely, 6% WPI; review sought by claimant under Section 7.26; claimant injured his neck, lower back and left leg in a motor accident on 23 November 2017; claimant injured his neck, shoulders, back, left arm and left leg in another motor accident on 30 October 2018; the review related to the injuries sustained in the motor accident on 30 October 2018; consideration and application of clauses 6.31, 6.32 and 6.33 of the Motor Accident Guidelines (the Guidelines) in respect of pre-existing impairment in respect of the injuries to the cervical spine and lumbar spine; Fisher v Insurance Australia Limited t/as NRMA Insurance and Vassallo v AAI Limited t/as GIO considered; Allianz Australian Insurance Ltd v Motor Accidents Authority NSW considered and applied; Held – the claimant suffered the following injuries in the motor accident on 30 October 2018: cervical spine, an aggravation of underlying degenerative changes at C5/6 with development of left sided radicular symptoms conforming to a left C6 pattern, for which a C5/6 discectomy was performed, and lumbar spine, an aggravation of underlying lumbar spondylosis at L4/5 and L5/S1 with a subsequent left L5 laminectomy/L4/5 decompression to manage symptoms of left lower limb paraesthesia; clause 6.31 of the Guidelines does not limit the “objective evidence of a pre-existing symptomatic impairment” being recorded by medical practitioners or medico-legal specialists; it is not necessary that the impairment arising from an initial accident be permanent at the time of a subsequent accident for clause 6.31 of the Guidelines to be engaged; the permanency of a pre-existing impairment is to be determined as at the time of the assessment and not as at the time of the subsequent motor accident, whether that impairment arises directly from the motor accident in question or is a pre-existing or subsequent impairment; the certificate of Medical Assessor McGrath dated 7 December 2022 is confirmed.
Decision date: 29 September 2023 | Panel Members: Member Anthony Scarcella, Dr Alan Home, and Dr Michael Couch | Injury module: Spine
Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury; claimant involved in a motor accident on 13 July 2018 from rear end collision; severe symptoms, surgery discussed, consumption of opioid medication and significant degenerative pathology present prior to motor accident; contemporaneous clinical records showed various injuries consistent with motor accident; claimant did not establish that motor accident aggravated any pre-existing pathology; lumbar spine radiculopathy present prior to motor accident; not satisfied that motor accident caused any increase in radiculopathy; Held – original assessment of threshold injury confirmed.
Decision date: 29 September 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Shane Moloney | Injury module: Spine, Upper Limb, and Nervous System (Neurological)
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment from psychological injury; whether Medical Assessor (MA) erred and made assessment based on incorrect criteria by making a deduction under section 323(1) of 50% for pre-existing condition; whether MA erred by misdiagnosing appellant’s injury; whether MA erred and made assessment based on incorrect criteria by not applying clause 11.10 of Guidelines when assessing the deduction to be made under section 323(1) for appellant’s pre-existing condition; Held – Appeal Panel found that it was open to MA to make the diagnosis he did of appellant’s injury; the Appeal Panel found clause 11.10 of the Guidelines could not be engaged in this matter; the Appeal Panel found that the MA did not err or did not apply incorrect criteria when assessing the deduction to be made under section 323(1) for appellant’s pre-existing condition was 50%.
Decision date: 30 August 2023 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal from assessment of whole person impairment in respect of a primary psychological injury; whether assessor erred in assessing the psychiatric impairment rating scales in self-care and personal hygiene, social and recreational activities or social functioning; whether he erred in failing to make a deduction for the effects of a pre-existing secondary psychological injury or condition; Held – Medical Assessment Certificate revoked.
Decision date: 5 October 2023 | Panel Members: Member Richard Perrignon, Dr Michael Hong, and Dr John Baker | Body system: Psychological/Psychiatric
The appellant submitted that the Medical Assessor (MA) erred in respect of the manner in which he dealt with a secondary psychological injury; the Panel noted that the MA, based on the referral, determined impairment as a result of the primary psychological injury; although there had been no determination that the respondent sustained a secondary psychological condition, there was ample evidence that he also suffered from a secondary psychological condition; Ausgrid Management Pty Ltd v Fisk applied; Held – Medical Assessment Certificate confirmed.
Decision date: 5 October 2023 | Panel Members: Member Deborah Moore, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred and, or alternatively, applied incorrect criteria with respect to assessment of worker’s permanent impairment from injury to knee; whether MA erred by finding that no proportion of worker’s permanent impairment was due to a pre-existing condition; Appeal Panel held MA erred with respect to his assessment of permanent impairment from worker’s knee injury and Appeal Panel called for the production of the films of X-rays so that it could correct the error; Appeal Panel found the MA did not err with respect to the section 323 issue; Held – Medical Assessment Certificate revoked.
Decision date: 5 October 2023 | Panel Members: Member Marshal Douglas, Dr Mark Burns, and Dr Neil Berry | Body system: Left and Right Lower Extremity, and Scarring
Appellant alleged error in the assessment under three categories under the permanent impairment rating scale (PIRS) namely, self-care and personal hygiene, social and recreational activities and social functioning; the rating in the class of self-care and personal hygiene was open to the Medical Assessor (MA) but the ratings in the classes of social and recreational activities and social functioning were not open to the MA; inadequate history and reasoning by the MA; re-examination considered necessary; Held – Medical Assessment Certificate revoked.
Decision date: 5 October 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Appellant worker alleged error by the Medical Assessor in the failing to carry out a proper examination and failing to provide sufficient reasons for his assessment of sensory loss in the ulnar nerve and in particular made no mention of the two-point discrimination test; the Appeal Panel was satisfied as to error and the Appeal panel considered that a re-examination was necessary; Held – Medical Assessment Certificate revoked.
Decision date: 5 October 2023 | Panel Members: Member Jane Peacock, Dr Brian John Stephenson, and Dr Alan Home | Body system: Left and Right Upper Extremity, and Scarring
Workplace Injury Management and Workers Compensation Act 1998; employer alleges Medical Assessor (MA) erred in assessing skin disorder in accordance with Tables 8-2 and 1-2 of American Medical Association’s Guides to the Evaluation of Permanent Impairment; MA erred in finding there was no deduction pursuant to section 323 when there was no “medical dispute” as qualified doctors for both parties had assessed a 10% deduction; Skates v Hills Industries Pty Ltd considered; Held – that MA had correctly applied both tables; that as the parties had agreed to a referral which required the MA to consider the proportion of the impairment resulting from a pre-existing edition the MA did not err in finding that the appellant had not proven a pre-existing condition which contributed to the impairment; Medical Assessment Certificate confirmed.
Decision date: 6 October 2023 | Panel Members: Member Paul Sweeney; Dr Paul Curtin, and Dr Mark Burns | Body system: Skin
Workplace Injury Management and Workers Compensation Act 1998; remittal from Supreme Court of employer appeal against psychiatric assessment of 17%; whether Medical Assessor (MA) erred in failing to make a deduction pursuant to section 323; Held – MA extracted large tracts of evidence, much of which was concerned with the subject injury which was irrelevant, as injury had been admitted; amongst that evidence was unchallenged account of the applicant being victim of an armed robbery at a restaurant, and having time off work as a result; subject injury concerned the failure by the employer to comply with return to work plans, and bullying and harassing the claimant; contemporary evidence ad idem that claimant suffering a post-traumatic stress disorder as a result of the robbery; substantive report of claimant’s medico-legal expert not lodged, but an advocative summary of it by solicitor; Marks v Secretary, Department of Communities and Justice explained by Camden Council v Hale; Cole v Wenaline and Elcheikh considered and applied; Medical Assessment Certificate revoked.
Decision date: 6 October 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the psychiatric impairment rating scale; appeal with respect to social and recreational activities only; worker sought to rely on a statement going to the history given to the Medical Assessor (MA); leave to rely on the statement refused; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Pitsonas v Registrar of the Workers Compensation Commission and Anor referred to; assessment was open to MA in the exercise of his clinical judgement; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed.
Decision date: 9 October 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; appellant employer alleged error by the Medical Assessor in the application of a one-tenth deduction under section 323 submitting that the extent of the deduction was inadequately reasoned.; the Appeal Panel was satisfied as to error because of inadequate reasons including the history taken; a re-examination was considered necessary; a one-tenth deduction was considered appropriate; Held – Medical Assessment Certificate confirmed.
Decision date: 9 October 2023 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Mark Burns| Body system: Left and Right Upper Extremity
Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment of the lumbar spine in respect of an injury on 23 February 2017; MA deducted one tenth pursuant to section 323 in respect of an injury with the respondent in 2011; Panel did not accept that the injury was an injury caused by the nature and conditions of employment from 2009 to 23 February 2017; MA was correct to find the worker had a pre-existing condition and make a deduction in respect of that injury; Held – Medical Assessment Certificate confirmed.
Decision date: 9 October 2023 | Panel Members: Member Carolyn Rimmer, Dr Alan Home, and Dr John Brian Stephenson | Body system: Spine
Medical Assessor assessed 0% for lumbar spine and found left lower extremity (hip) had not reached maximum medical improvement (MMI) on the basis that the sciatic nerve needed further investigation and treatment; worker appealed; Appeal Panel found that it was open to the Medical Assessor, in the exercise of his clinical judgment, to have assessed the lower extremity as not having reached MMI but this also meant the lumbar spine should have been assessed as not MMI as opposed to assessing 0% WPI for the lumbar spine; Held – Medical Assessment Certificate revoked.
Decision date: 9 October 2023 | Panel Members: Member Jane Peacock, Dr Brian John Stephenson, and Dr Margaret Gibson | Body system: Left Lower Extremity, Left Upper Extremity, and Spine
Motor Accidents Merit Review Decision
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; whether interim payments available after the first entitlement period, after 13 weeks; sections 3.6, 3.7, and 3.8; meaning of earner; schedule 1, clause 2; whether arrangement to commence employment or self-employment at a particular time and place; meaning of pre-accident weekly earnings; schedule 1, clause 4(b); whether sufficient information to determine pre-accident weekly earnings, Held – the reviewable decision is affirmed.
Decision date: 10 October 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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