Legal Bulletin No. 96
This bulletin was issued on 3 February 2023
Issued 3 February 2023
Welcome to the ninety-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 Decision
Psychological injury; section 11A of the Workers Compensation Act 1987; whether an employer’s action taken in respect of discipline was reasonable; Department of Education & Training v Sinclair and Northern New South Wales Local Health Network v Heggie applied and considered.
Decision date: 19 January 2023 | Before: Acting Deputy President Michael Perry
Workers Compensation non-Presidential Member Decisions
Claim for lump sum compensation; causation disputed in respect of disease injury of the right hand arising from the nature and conditions of employment; Mason v Demasi and Kooragang Cement v Bates considered; Held – held applicant sustained disease injury and aggravation of disease injury; matter referred to Medical Assessor for assessment of permanent impairment.
Decision date: 23 January 2023 | Member: Michael Wright
Claim for lump sum compensation for accepted injury to right thigh and disputed consequential lumbar spine condition as a result of altered gait; also disputed as to whether impairment assessment of right knee and hip requires determination of injury to right knee and hip, or whether it is a medical assessment issue for assessment by a Medical Assessor (MA); causation and history issues considered; Held – injury to right knee and hip not claimed, rather the applicant’s medical assessment was for muscle weakness and loss of function of hip and knee resulting from accepted right thigh injury and weakness and pain; lumbar spine condition resulted from injury to right thigh; matter remitted to MA for assessment.
Decision date: 23 January 2023 | Member: Michael Wright
Workers Compensation Act 1987; claim for injuries to thoracic spine; claim for proposed future treatment expenses pursuant to section 60; posterior thoracic pedicle screw fixation and kyphotic deformity correction;consideration of applicant’s statement, medical reports and other treatment records and claim correspondence; respondent concedes injury on 28 March 2019; consideration of whether the proposed surgery is reasonably necessary medical treatment as a result of the injury; Rose v Health Commission (NSW), Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) referred to in the Medical Assessor’s 2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on 28 March 2019; the respondent is to pay for the costs of and incidental to the surgery pursuant to section 60.
Decision date: 23 January 2023 | Member: Gaius Whiffin
Workers Compensation Act 1987; claim for weekly compensation and incurred section 60 expenses; applicant sustained an accepted injury to his left knee and leg in the course of employment when walking across a carpark to repair equipment in a bus parked in the carpark; whether the employment concerned was a substantial contributing factor to the injury pursuant to section 9A; whether the applicant stepped in a ditch or was simply walking when injured; Held – employment was a substantial contributing factor to the injury; award for the applicant.
Decision date: 24 January 2023 | Member: Rachel Homan
Claim for spinal surgery, bariatric surgery, and weekly compensation; whether injury established; whether aggravation of constitutional condition ceased; whether applicant’s credit impugned; whether causal link in claim for bariatric surgery; Held – injury consisted of ongoing aggravation of L5/S1 spondylolisthesis; spinal surgery reasonably necessary; applicant totally incapacitated with increasing incontinence issues; respondent misapprehended basis of claim for bariatric surgery; applicant morbidly obese and spinal surgeon recommended referral to bariatric surgeon to ensure safety of spinal surgery, not that the subject injury to the spine had caused weight gain; Diab v NRMA Ltd considered and applied; applicant’s credit established by clinical notes; award for the applicant.
Decision date: 24 January 2023 | Member: John Wynyard
Workers Compensation Act 1987; accepted claim for carpal tunnel syndrome of right wrist; claim for cost of carpal tunnel release surgery disputed; disputed claim for injury to right shoulder as result of nature and conditions of employment; claim for weekly benefits and cost of surgery paid for by applicant; Held – the applicant sustained injury to her right shoulder as a result of the nature and conditions of her employment; carpal tunnel release surgery reasonably necessary medical treatment as a result of accepted injury; the applicant has had no work capacity since payments of weekly compensation ceased; award for the applicant of weekly compensation pursuant to section 37; award for the applicant pursuant to section 60 for past medical expenses claimed; the parties have liberty to apply with respect to any further claim for section 60 expenses.
Decision date: 24 January 2023 | Senior Member: Kerry Haddock
Applicant failed to attend respondent’s medical examination after claim for lump sum compensation served; applicant filed Form 7 Application for Assessment by a Medical Assessor (MA); referral to the MA opposed as respondent had not yet had the applicant examined; at a second preliminary conference, the Personal Injury Commission was advised that the applicant had been incarcerated; the applicant’s solicitor was unable to contact the applicant and had no instructions; Held – the applicant failed to prosecute his claim; proceedings dismissed for want of due despatch.
Decision date: 24 January 2023 | Principal Member: Glenn Capel
Workers Compensation Act 1987; psychological Injury; injury undisputed; section 11A defence; the respondent bears the onus of proving its section 11A defence; evidence weighed in the balance; Held – not satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to discipline and/or provision of employment benefits; applicant not precluded from the recovery of compensation for her psychological injury by reason of the provisions of section 11A; award for the applicant.
Decision date: 25 January 2023 | Member: Jane Peacock
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and treatment; review of Medical Assessor’s assessment of WPI; injuries to be assessed are neck and thoracic spine, left and right shoulders, right arm and right wrist; claimant had at least six previous accidents and longstanding neck and back conditions; significant issue of causation and allowance for pre-existing apportionment in relation to shoulders; Held – impairment was 0% and is now 0%; no issue of principle.
Decision date: 8 November 2022 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Shane Moloney| Injury module: Spine and Upper Limb
Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 17 May 2017; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; medical assessment done on the papers; only complaint of neck injury more than 2 years after the accident; hospital specifically excluded neck injury; no reasons provided for neck condition nexus with accident; claimant frequently saw treating doctors before and after accident with nil complaint of neck injury; accepted right shoulder injury; neck and shoulder combined more than 10%; Dogon v Redmond & Ors, Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and Bugat v Fox considered; Held –Panel found no nexus with cervical injury and accident; permanent impairment 10%; previous Medical Assessment Certificate revoked.
Decision date: 20 January 2023 | Panel Members: Member Terence O’Riain, Dr Margaret Gibson and Dr Tai-Tak Wan | Injury module: Spine, Upper and Lower Limb and Minor Skin
Motor Accident Compensation Act 1999; Medical Review Panel; dispute related to assessment of permanent impairment; on 9 November 2017 at work boxes fell from a pallet being moved by a forklift landing on the claimant’s head and back; pre-accident history of post-traumatic stress disorder (PTSD), anxiety and depression symptoms; Held – accident caused a major psychological decline and aggravation of PTSD associated with major depressive disorder; whole person impairment (WPI) assessed at 15%; pre-existing impairment assessed at 1%; certificate of Medical Assessor who assessed a 4% WPI revoked; new certificate issued; assessment of 14%.
Decision date: 20 January 2023 | Panel Members: Member Susan McTegg, Dr Michael Li Ying Hong and Dr Samson Roberts | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Appeal from assessment of 8% whole person impairment for psychological injury to police officer; whether additional evidence should be admitted; whether Medical Assessor (MA) disregarded guidelines; whether MA ‘s assessment entirely premised on clinical findings only; whether MA selectively disregarded medical evidence; whether MA had erred in failing to refer to appellant’s motivation for his activities; Held – additional evidence (a statement from the appellant and test results from his psychologist over two years) rejected; observations as to appellant’s apparent ignorance of the requirements for the admission of additional evidence; Lukacevic v Coates Hire Operations Pty Limited applied; appellant’s submissions as to factual matters found to overlook tracts of relevant evidence; Medical Assessment Certificate confirmed.
Decision date: 19 January 2023 | Panel Members: Member John Wynyard, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychiatric/Psychological
Assessment of permanent impairment from psychiatric injury; whether Medical Assessor (MA) had proper regard to descriptors in Tables 11.1 and 11.5 of the Guidelines; whether MA had proper regard to history when assessing worker’s impairment in psychiatric impairment rating scale (PIRS) categories of Self-care and personal hygiene and concentration, persistence and pace; Held –Medical Assessment Certificate upheld.
Decision date: 20 January 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Douglas Andrews | Body system: Psychiatric/Psychological
Assessment of permanent impairment from injury of hearing loss deemed to have happened on 1 January 2002; worker suffered further hearing loss due to exposure to hazardous noise after 1 January 2002 in self-employment and on his farm; whether Medical Assessor (MA) erred by adopting a “time weighted assessment” to determine what proportion of the worker’s hearing impairment was due to exposure to hazardous noise after 1 January 2002; excluding that proportion from worker’s overall hearing impairment when assessing worker’s permanent impairment from injury on 1 January 2002; Appeal Panel held that MA was correct to exclude from his assessment of worker’s permanent impairment any hearing impairment the worker suffered due to exposure to hazardous noise after 1 January 2002 but erred in using a “time weighted assessment” to determine what hearing impairment should be excluded; Held – Medical Assessment Certificate revoked.
Decision date: 24 January 2023 | Panel Members: Member Marshal Douglas, Dr Robert Payten and Dr Joseph Scoppa | Body system: Hearing
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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