Legal Bulletin No. 124
This bulletin was issued on 18 August 2023
Issued 18 August 2023
Welcome to the one hundredth and twenty fourth 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.
Supreme Court Decision
Administrative law; judicial review; decision of medical assessor referred to review panel; where review panel excluded the insurer’s medico-legal reports for alleged want of procedural fairness; whether the review panel misconstrued the Motor Accidents Compensation Act 1999 (NSW); error of law made out; whether review panel applied proper test for review panel; where review panel confined its consideration of evidence on causation; where review panel reversed onus of proof on causation; error of law on the face of the record; Held – certificate issued by review panel quashed; matter remitted to the Commission to be referred to a differently constituted review panel.
Decision date: 15 August 2023 | Before: Chen J
Presidential Member Decision
Personal Injury Commission Act 2020; workers compensation; sections 3 and 42; object and guiding principle of the Act to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible; the duty to co-operate with the Commission to give effect to the guiding principle to participate in the processes of the Commission and to comply with directions and orders of the Commission; assessment of earnings in the absence of precise evidence - New South Wales v Moss considered; Held – the Certificates of Determination dated 21 April 2022 and 6 April 2023 are confirmed.
Decision date: 8 August 2023 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Motor Accidents Compensation Act 1999; damages assessment under section 94; psychological and physical injury alleged from motor accident 15 February 2015; unfit for work due to 2010 lumbar spine injury; claimant’s evidence was unreliable; claimant had given inconsistent histories to assessor and medical specialists; economic loss alleged; claimant’s mental and physical functions impaired due to multiple medical conditions established before 2015 accident; claimant receiving workers compensation at date of accident to 2017; started car wash business after 2015 accident; claimant told occupational therapist in 2014 he delegated all domestic tasks to wife before 2015 accident; supportive documentary evidence outweighed; lack of corroborative lay evidence as to work practices and need for additional domestic assistance; distinction between condition before and after 2015 accident; conflicting medical material; no medical treatment for 2015 accident since 2019; correlation between stopping work and receiving work injury damages in 2017; Held – damages for past treatment assessed under sub-sections 94(3) and 94(4); NRMA’s insured owed a duty of care to the claimant; breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; 2015 accident caused temporary aggravation of lumbar spine condition and temporary cervical and right shoulder soft tissue injuries have resolved; claimant did not establish past economic loss or that his most likely future was to continue working in car wash business; awarded damages for past medical expenses.
Decision date: 12 July 2023 | Member: Terence O'Riain
Motor Accident Injuries Act 2017; settlement approval $17,000; 35-year-old male; past and future economic only; nine weeks past losses; small buffer for future loss.; minimally displaced right ankle avulsion fracture now healed section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 25 July 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; 54-year-old cyclist sustained injuries to cervical spine, lumbar spine, left shoulder and both knees; also sustained psychological injuries; the accident also aggravated pre-existing right knee condition and pre-existing cervical spine condition; claimant recommended to undergo surgery to both right knee and cervical spine; claimant is a disability support pensioner; no claim for past or future economic loss; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).
Decision date: 3 August 2023 | Member: David Ford
Motor Accident Injuries Act 2017; settlement approval $172,500; 39-year-old female; past and future economic losses only; injuries; soft-tissue resolved; right knee possible replacement in later life; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 4 August 2023 | Member: Shana Radnan
Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under 7.36(3) and 7.36(4); claimant was the driver of a motor vehicle which was struck from the rear by the insured motor vehicle; insured admitted liability and no allegation of contributory negligence; claimant suffered injuries to cervical spine, lumbar spine, right shoulder and also suffered from post-traumatic stress disorder resulting in an assessment of whole person impairment of 15%; claimant is a clinical nurse educator; claim for non-economic loss; past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss.
Decision date: 7 August 2023 | Member: David Ford
Motor Accident Injuries Act 2017; application by claimant pursuant to sub-section 7.34(1)(b); seeking discretionary exemption on the basis that claim is not suitable for assessment; insurer has denied liability; whether claim involves complex issues of law or fact; Held – claim remains suitable for assessment by Commission.
Decision date: 8 August 2023 | Member: Maurice Castagnet
Motor Accident Injuries Act 2017; approval of settlement; section 6.23; damages for non-economic loss; past and future economic loss; claimant now 56 years of age; self-employed cleaner; soft tissue injuries to neck, lower back, right ankle, both shoulders; fractured tooth and chipped teeth; injury to chest wall resulting in ruptured bilateral breast implants; development of psychological injury; claimant has not returned to work since the accident; loss of past and future earnings; small residual earning capacity; Held – proposed settlement of $534,000 approved.
Decision date: 9 August 2023 | Member: Maurice Castagnet
Workers Compensation non-Presidential Member Decisions
Worker claims cost of proposed left shoulder surgery pursuant to section 60; employer denies injury and causal nexus between injury and need for surgery; Commission accepts that the contemporaneous evidence establishes injury; absence of signs on clinical examination and absence of complaint over a period of five years inconsistent with causal nexus.; Held – need for surgery does not result from proven injury.
Decision date: 4 August 2023 | Member: Paul Sweeney
Request for reconsideration of Certificate of Determination (COD) pursuant to section 57(1) of Personal Injury Commission Act 2020; Medical Assessment Certificate (MAC) issued but not reviewed by respondent’s solicitor; solicitor became aware of MAC when COD issued; respondent sought to appeal the MAC pursuant to section 327(3)(c) and 327(3)(d) of Workplace Injury Management and Workers Compensation Act 1998 and sought extension of time pursuant to s 327(5); applicant did not consent to COD being rescinded; consideration of Marsh v Newcastle Stevedores Pty Ltd; Samuel v Sebel Furniture Limited; Railcorp NSW v Registrar of the WCC of NSW; Atomic Steel Constructions Pty Ltd v Tedeschi; Held – COD rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020.
Decision date: 4 August 2023 | Senior Member: Kerry Haddock
Claim for declaration and orders reproposed surgery for consequential hip condition; whether hip condition a consequence of accepted back injury through altered gait; whether absence of clinical notes determinative; whether hip condition caused by unrelated disease condition; whether inconsistencies between treating surgeon and medico-legal expert affected; whether onus satisfied; Held – pathology agreed unanimously to be arthritis; contemporaneous evidence limited but supported claimant and medico-legal expert’s history that only the back was injured; treating surgeon’s assumption that hip also injured not accepted; claimant amended claim to delete reliance on injury to hip at hearing; Moon v Conmar, Secretary, New South Wales Department of Education v Johnson, Qannadian v Bartter Enterprises Pty Limited, and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan considered and applied; award for the applicant.
Decision date: 9 August 2023 | Member: John Wynyard
Application for lump sum death benefit and funeral expenses; liability to pay compensation determined by the Commission in the applicant’s favour; orders with respect to dependants; Held – apportionment of the lump sum, interest, and funeral expenses.
Decision date: 9 August 2023 | Member: Rachel Homan
Workers Compensation Act 1987; claim for ongoing weekly compensation and incurred treatment expenses in respect of physical and psychological injuries arising out of incident where worker trapped by a conveyer belt; subsequent allegations of harassment and termination of employment; whether worker sustained a primary psychological injury; ongoing effects of injury; Commission’s jurisdiction to award weekly compensation pursuant to section 38; Held – the applicant sustained a primary psychological injury pursuant to section 4(a) and 9A; the applicant has had no current work capacity as a result of the injury at all material times; Ferro v Mercon Group Pty Ltd distinguished.
Decision date: 9 August 2023 | Member: Rachel Homan
Motor Accidents Medical Review Panel Decisions
The claimant suffered injury in a motor vehicle accident on 29 May 2021; assessment of threshold injury; dispute as to causation of triangular fibrocartilage (TFCC) rupture; dispute as to causation of annular rupture; dispute as to left shoulder injury; dispute as to threshold injury; dispute as to whole person impairment (WPI); Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities annular tear was a pre-existing condition; Panel finds the claimant sustained soft tissue injury to the lumbar spine; Panel finds the TFCC rupture was an incidental finding and due to pre-existing wear and tear; no symptoms reported by the claimant in that part of his wrist; Panel finds the claimant sustained soft tissue injury to right wrist; Panel finds soft tissue injury to the cervical spine; no evidence of injury to left shoulder; Panel certifies claimant sustained soft tissue injury to right wrist, soft tissue injury to cervical spine, soft tissue injury to lumbar spine; all threshold injuries; lumbosacral spine assessed as 0% WPI; cervical spine assessed as 0% WPI and soft tissue injury to right wrist assessed as 3% WPI.
Decision date: 2 August 2023 | Panel Members: Member Susan McTegg, Dr Michael Couch and Dr Chris Oates | Injury module: Spine and Upper Limb
The claimant suffered injury on 12 September 2018; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with post-traumatic stress disorder; assessments made in accordance with psychiatric impairment rating scale (PIRS) categories; Held – claimant assessed at 8% permanent impairment for the psychological injury; original assessment revoked.
Decision date: 2 August 2023 | Panel Members: Member Gary Victor Patterson, Dr Wayne Mason and Dr Alexey Sidorov | Injury module: Mental and Behavioural
The claimant sustained injury in a motor vehicle accident on 23 August 2016; injury to hip, low back, pelvis and both legs; in an earlier certificate hip replacement surgery assessed as not reasonable and necessary; prior assessment of 8% WPI for left hip injury; review of Certificate of Medical Assessor Cameron who found need for domestic assistance causally related to accident and referred the dispute as to whether domestic assistance reasonable and necessary to an occupational therapist; Held – no provision for referral to occupational therapist where Panel comprises two medical assessors and one legal member; functional impairment due to ongoing soft tissue hip injury; need for domestic assistance related to injury caused by accident; date of assessment determined to be the date of the original MAS assessment; need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years reasonable and necessary in the circumstances and caused by the accident.
Decision date: 2 August 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Treatment Type: Domestic Assistance
Motor Accident Injuries Act 2017 (MAIA); this was a dispute about whether the claimant suffered a threshold injury in the motor accident; the claimant sustained right side upper and lower limb injuries in motor accident and submitted he sustained non-threshold injuries including a right leg laceration; claimant submitted skin injury satisfies threshold injury definition; Eftikhari v AAI Limited t/as AAMI on purpose of the MAIA considered; Held – the Panel found skin injury is a threshold injury unless the injury to the skin also involves an injury to nerves demonstrated with sensory loss, or a complete or partial rupture of tendons, ligaments, menisci or cartilage; Panel not satisfied the claimant’s injuries fit definition; the accident caused all the alleged injuries; all injuries are soft tissue under section 1.6.
Decision date: 2 August 2023 | Panel Members: Member Terence O'Riain, Dr Geoffrey (Paul) Curtin and Dr Clive Kenna| Injury module: Upper and Lower Limb
Claimant was a driving a car that was hit by a small truck in a rear end collision; claimant reported injuries to all levels of the spine; request made for consultation with neurosurgeon; Medical Assessor approved consultation as reasonable and necessary; Held – original Medical Assessment Certificate set aside; claimant not medically re-examined by Panel; claimant’s proposed treatment and care of a consultation with neurosurgeon not reasonable and necessary in the circumstances; all of claimants reported injuries and spinal symptoms were soft tissue injuries and thus threshold injuries; CT scans, X-Rays and MRI scans all show chronic degenerative changes to the spine including disc bulging but no fractures or nerve root compression; no definite evidence of radiculopathy.
Decision date: 3 August 2023 | Panel Members: Member Ray Plibersek, Dr Drew Dixon and Dr Clive Kenna | Injury module: Spine; Treatment Type: Medical Specialist Consultation
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; deduction under section 323; worker suffered injury to her shoulders, neck and lower back as a result of heavy work; Medical Assessor (MA) did not make section 323 deduction nor did doctor qualified by employer; employer argued on appeal that MA should have identified an X-Ray report and two isolated entries in clinical notes which pre-dated employment and made a section 323 deduction; Vitaz v Westform (NSW) Pty Ltd; Cole v Wenaline Pty Ltd, and Bojko v ICM Property Service Pty Ltd discussed; Held – Medical Assessment Certificate confirmed.
Decision date: 3 August 2023 | Panel Members: Member Catherine McDonald, Dr Gregory McGroder and Dr Doron Sher | Body system: Spine, Left and Right Upper Extremity
Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of 21% whole person impairment (WPI); Medical Assessor (MA) interpreted the referral for the “left upper extremity” as including shoulder and wrist; whether he was restricted to just the elbow; whether referral reflected agreement by the parties as to the medical dispute; Held – referral did not reflect such an agreement; letter of claim restricted the claim to the elbow; the section 78 Notice restricted acceptance of injury to the elbow; the respondent specifically limited the claim to the elbow in its reply; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Skates v Hills Industries Ltd considered and applied; Shankar v Ceba Logistics (Australia) Pty Ltd doubted and distinguished; Medical Assessment Certificate revoked.
Decision date: 5 August 2023 | Panel Members: Member John Wynyard, Dr James Bodel and Dr Alan Home | Body system: Left Upper Extremity, Spine and Scarring (TEMSKI)
Workplace Injury Management and Workers Compensation Act 1998; deduction under section 323; psychological injury; Medical Assessor did not make section 323 deduction despite evidence of a pre-existing psychological condition which was being treated with medication at the time of the work injury; failure to take into account relevant material; pre-existing condition contributed to the impairment; extent of deduction difficult to determine; 10% deduction not at odds with the available evidence; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq), Marks v Secretary, Department of Communities and Justice (No 2), and Secretary, Department of Communities and Justice v Lewandowski discussed; Held – Medical Assessment Certificate revoked.
Decision date: 7 August 2023 | Panel Members: Member Rachel Homan, Dr Graham Blom and Dr Michael Hong | Body system: Psychiatric/Psychological
Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; there was no complaint on appeal about the overall assessment of impairment; the Medical Assessor (MA) made a deduction of one-tenth under section 323 to account for the pre-existing condition, abnormality or injury; the employer appealed; the deduction was upheld but a mathematical error identified by the parties in the MA’s calculation of the deduction was corrected; Held – Medical Assessment Certificate revoked.
Decision date: 7 August 2023 | Panel Members: Member Jane Peacock, Dr Mark Burns and Dr Neil Berry | Body system: Spine and Skin (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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