Legal Bulletin No. 139
This bulletin was issued on 1 December 2023
Issued 1 December 2023
Welcome to the one hundred and thirty ninth 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
Judicial review; President of the Personal Injury Commission; President's Delegate; Motor Accident Compensation; third party comprehensive insurance; Held – the decision of the second defendant, dated 29 March 2023 be set aside; the decision of the President’s delegate dated 13 June 2023 be set aside; the decisions are not to be remitted to the Personal Injury Commission for determination according to law.
Decision date: 24 November 2023 | Before: Harrison AsJ
Presidential Member Decision
Workers compensation; duty to give reasons; application of Pollard v RRR Corporation Pty Ltd, Mifsud v Campbell, Beale v Government Insurance Office of NSW; causation; application of Kooragang Cement Pty Ltd v Bates; expert evidence; application of Hancock v East Coast Timber Products Pty Ltd; alleged constructive failure to exercise jurisdiction; application of Dranichnikov v Minister for Immigration and Multicultural Affairs, Day v SAS Trustee Corporation; Wang v State of New South Wales; Held – the Certificate of Determination dated 21 November 2022 is confirmed.
Decision date: 21 November 2023 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; fault dispute under section 3.11 and s 3.28; claimant was injured in a motor accident while riding his motorcycle on Putty Road, Colo; the insurer denied liability for the claim after 26 weeks on the basis that the accident was caused wholly by the fault of the claimant; insurer argued in the alternative that the accident was caused mostly by the fault of the claimant; collision between the claimant’s motorcycle and insured driver making a right hand turn; claimant attempting to overtake insured driver; where claimant thought the insured driver had pulled over to let him pass; where insured driver did not indicate intention to turn right until he commenced turning; Held – the accident was caused by the fault of both the claimant and the insured driver; claimant’s contributory negligence was not greater than 61%; the accident was caused neither wholly or mostly by the fault of the claimant; costs order under section 8.10(4)(b) made.
Decision date: 17 November 2023 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; motor accidents settlement approval; 26-year-old motorist involved in a collision at an intersection controlled by traffic lights with an ambulance; sustained fracture of the right clavicle, sternal fracture with substernal hematoma and a fracture of the right third rib with a small pneumothorax; underwent open reduction and internal fixation of the fracture of the right clavicle subsequently clavicular plate and screws removed and bone grafting; short period of time unable to engage in employment; claimant now works as a banker on full-time normal duties; insurer conceded claimant has sustained a non-threshold injury; liability admitted; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).
Decision date: 22 November 2023 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Death claim; determination of dependency, apportionment, and payment of death benefit, interest and management fee; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.
Decision date: 16 November 2023 | Principal Member: Glenn Capel
Workers Compensation Act 1987; sections 4, 15, 16 and 60; injury to the lumbar spine disputed; proposed surgery to the lumbar spine dispute disputed; Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Ariton Mitic v Rail Corporation of NSW, Perry v Tanine Pty Ltd t/as Ermington Hotel, Rail Services Australia v Dimovski, P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – on the balance of probabilities the applicant sustained injury to his lumbar spine being an aggravation and exacerbation of a disease condition pursuant to section 4(b)(ii) with a deemed date of injury of 6 March 2023; the L5/S1 minimally invasive transforaminal lumbar interbody fusion surgery proposed by Dr Diwan is reasonably necessary as a result of the work-related injury which the applicant has sustained to his lumbar spine.
Decision date: 17 November 2023 | Member: John Turner
Claim for lump sum compensation in respect of physical and primary psychological injuries arising from an assault; whether injury and/or consequential at bilateral shoulders; delay in reporting symptoms of more than two years; mechanism of injury unexplained; alternative explanation of symptoms found by respondent’s expert; Held – the applicant failed to discharge his onus of establishing injury or consequential condition to the shoulders; as accepted physical injuries did not exceed 10% whole person impairment threshold; only primary psychological injury to be referred to a Medical Assessor.
Decision date: 20 November 2023 | Member: Rachel Homan
Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); application of ‘a period of unpaid leave’ in regulation 8E of the Workers Compensation Regulation 2016 as it applies to the circumstances of this dispute; reference to the National Employment Standards in the Fair Work Act 2009 (Cth) in regard to types of leave, the second reading speech for the Workers Compensation Legislation Amendment Bill 2018 and Secretary, Department of Communities and Justice v Stewart; Held – that there were two periods when the worker took a period of unpaid leave and which are to be excluded from the relevant earning period for the calculation of PIAWE.
Decision date: 20 November 2023 | Member: John Isaksen
Whether the provision of dietetics sessions is reasonably necessary treatment as a result of an injury to the applicant’s lumbar spine; Held – that the treatment is reasonably necessary as a result of the injury.
Decision date: 21 November 2023 | Member: Marshal Douglas
Motor Accidents Medical Review Panel Decisions
The claimant suffered injury on 3 October 2020; the dispute related to the assessment of permanent impairment of injuries to the cervical spine, lumbar spine and both shoulders; claimant re-examined; panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; Held – claimant assessed at 7% permanent impairment for the physical injuries; original assessment revoked.
Decision date: 31 July 2023 | Panel Members: Member Gary Victor Patterson, Dr Christopher Oates, and Dr Les Barnsley | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; Medical dispute about permanent impairment; claimant applied for review under section 7.26; original Medical Assessor Shahzad (MA) assessed less than 11% permanent impairment; issue of causation of injuries involved; incorrect deduction for left shoulder; pre-existing right shoulder condition; re-examined; Held – left shoulder not considered ‘normal baseline’; claimant sustained soft tissue injuries to right shoulder and elbow, with depressed tibial fracture in left knee; using walking sticks aggravated shoulder condition; claimant demonstrated consistency so range of movement measured; permanent impairment 17%; no evidence to support deductions for existing impairment in injured body parts; permanent impairment greater than 10%; previous impairment certificate revoked and replaced.
Decision date: 10 November 2023 | Panel Members: Member Terence O’Riain, Dr Mohammed Assem, and Dr Drew Dixon | Injury module: Upper and Lower Limb
Motor Accidents Compensation Act 1999; assessment of treatment (domestic care and assistance); Medical Assessor (MA) Cameron had assessed that some of the disputed care was related to the injuries caused by the accident and MA Davidson assessed the amount of care that was reasonable and necessary in the circumstances; motor accident occurred more than 10 years ago; claimant alleged injuries to her neck, back, chest shoulders and at times knees and feet; claimant said she had been unable to perform any domestic duties since the day of the accident and had required more than 12 hours of care per day; claimant’s application for review under section 63 of both decisions was referred to two Panels comprising the same members; Held – Panel determined to hear both matters together; Panel satisfied claimant sustained soft tissue injuries to her neck and back causing symptoms in the shoulders but no frank or specific injury to the shoulders; Panel not satisfied claimant injured her knees or feet; Panel found some treatment related to the injuries sustained in the accident but a different amount of treatment was reasonable and necessary; current regime of care allegedly provided unreasonable and some care related to other conditions including bladder cancer; both certificates revoked; no issue of principle.
Decision date: 13 November 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Lauren Alach | Injury module: Treatment Type: Domestic Assistance - Reasonable and Necessary
Motor Accident Injuries Act 2017; dispute about whether the claimant suffered a threshold injury in a motor accident on 8 January 2021; claimant delayed reporting nexus between spinal injury and 2021 accident because she hoped she would get better; insurer applied for review of Medical Assessor (MA) Woo’s certificate dated 23 October 2022; insurer disputes that the accident was of sufficient force to cause non-threshold injury; Medical Assessor certified that the 2021 accident caused a non-threshold injury and that claimant delayed reporting her injury due to self-reported social anxiety disorder; insurer based review on MA failing to provide reasons for accepting that claimant’s psychological disorder was her reason for not reporting the injury immediately; insurer relied on biomechanical examination of its insured’s account of the incident and records of repairs to vehicle which claimant was riding; Panel did not re-examine but MA Gibson questioned claimant on audio-visual link about causation; Panel considered treating neurologist supported link between 2021 accident and lumbar spine changes that caused radiculopathy; claimant consistent about why she did not report injury sooner; clinical notes provided to Panel outlining history of social anxiety disorder supported MA Woo’s approach as to why claimant failed to report injury; treating psychologist’s notes showed claimant has social anxiety before the accident; claimant displayed maladaptive approach to self-care; atypical to delay reporting link between back pain and accident; reasonable to consider impact of claimant’s mental disorder as to why she delayed reporting; does balance of evidence supports nexus between accident and lumbar spine injury; Briggs v NRMA considered; Held – social anxiety disorder could impact on claimant’s reasons for delaying her report on nexus between her injury and the car accident; balance of evidence supports material contribution of accident to back injury; the Panel was satisfied that the accident caused the lumbar spine injury, which was not a threshold injury as defined by section 1.6; MA Woo’s certificate affirmed.
Decision date: 14 November 2023 | Panel Members: Member Terence O'Riain, Dr Margaret Gibson, and Dr Neil Berry | Injury module: Spine
Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained injuries to the cervical spine and a left arm nerve injury in a motor accident on 12 July 2022; Medical Assessor (MA) Cameron determined that the claimant sustained an injury to the cervical spine caused by the motor accident which was a non-threshold injury and that the left arm nerve injury was not caused by the motor accident; review sought by claimant under section 7.26; consideration and application of section 1.6 and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant sustained a soft tissue injury to the cervical spine with left C8 radiculopathy; the soft tissue injury to the cervical spine with left C8 radiculopathy is a non-threshold injury; there is no evidence of a left arm nerve injury (peripheral nerve injury); the certificate of MA Cameron dated 16 May 2023 is confirmed.
Decision date: 14 November 2023 | Panel Members: Member Anthony Scarcella, Dr Christopher Oates, and Dr Michael Couch | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; assessment of minor (now threshold) injuries by Medical Assessor (MA) Gorman; claimant’s review under section 7.26; claimant had significant injury in 1977 motor bike accident and work-related accidents; current accident occurred in September 2018 while claimant at work; he opened the door of the work truck to get out and door was clipped by a passing car; claimant alleged injury to lower back and right hip when he was pushed back into the truck by the force of the collision; claimant had lumbar spine surgery in September 2020; claimant argued his injuries were non-threshold injury due to the presence of radiculopathy, the complete or partial rupture of a lumbar disc and the surgery; Held – Panel found claimant sustained a soft tissue injury to his back aggravating pre-existing degenerative changes and conditions; Panel also found no radiculopathy when examined and no evidence of radiculopathy at any time since the accident; surgery was undertaken to address severe claudicant pain which developed in July 2020 and was not caused by the soft tissue injuries in the accident; Certificate of MA Gorman confirmed.
Decision date: 15 November 2023 | Panel Members: Member Belinda Cassidy, Dr Phillip Truskett, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; minor (now threshold) injury dispute and assessment by Medical Assessor (MA) Wijetunga; claimant injured in rear end collision in June 2018 and alleged injuries to his neck and right shoulder; pre-accident records suggested claimant had previous neck and shoulder problems; claimant had cervical spine surgery in September 2020; claimant argued he had cervical radiculopathy, which was a non-threshold nerve injury, had radiculopathy from August 2018, had surgery as a result of the injury and had right shoulder SLAP tears caused by the accident; Held – when examined by MA Cameron for the Panel there was no radiculopathy; extensive review of post-accident records revealed radicular symptoms but at no stage did claimant have two or more of the five signs of radiculopathy required to establish a non-threshold injury; Mandoukos v Allianz Australia Insurance Limited followed; surgery does not ‘convert’ a threshold injury into a non-threshold injury; in any event the need for surgery was not caused by the accident because there was a substantial difference in the nature of the complaints before the surgery; the claimant had sustained a soft tissue injury in the accident on the background of degenerative changes; need for surgery caused by the degenerative changes; the claimant had a disc bulge not a herniation or prolapse and there was no evidence of a complete or partial rupture of tissue.
Decision date: 15 November 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Michael Couch | Injury module: Spine and Upper Limb
The claimant suffered multiple injuries on 28 August 2020 including a fracture of the right mandible and an undisplaced fracture of the right mandibular fossa; the right temporomandibular joint (TMJ) developed painful dysfunction, causing restriction to mouth opening and mastication; the dispute related to a proposed arthroscopy of the right TMJ; the claimant had significant pre-existing dental issues, consultant dental surgeon recommended a multidisciplinary treatment plan not including right TMJ arthroscopy; Panel satisfied that the proposed TMJ arthroscopy relates to the injury caused by the accident and was reasonable at the time it was proposed; claimant did not establish that proposed surgery was “necessary”; parties invited to indicate if they could agree upon treatment plan recommended by consultant dental surgeon to resolve the treatment dispute; Held – claimant did not establish that TMJ arthroscopy was “necessary’; nor likely to improve the claimants recovery.
Decision date: 16 November 2023 | Panel Members: Member Gary Victor Patterson, Dr David Sykes, and Dr Geoffrey (Paul) Curtin | Injury module: Treatment Type: Dental Treatment
Workers Compensation Medical Appeal Panel Decisions
Hearing loss due to occupational noise exposure; worker appealed assessment on basis that the Medical Assessor erroneously deducted loss of hearing at 3000Hz and failed to adequately explain why losses below 3000HZ were not included in the assessment; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked.
Decision date: 10 October 2023 | Panel Members: Member Jane Peacock, Dr Brian Williams, and Dr Robert Payten | Body system: Hearing
Workplace Injury Management and Workers Compensation Act 1998;claim by appellant employer against 17% whole person impairment psychiatric injury, including 10% section 323 deduction; claimant obtained another 17% for similar psychiatric case 2 years earlier; whether credit findings by Commission Member may be ignored; whether section 323 properly applied; whether 3 categories of psychiatric impairment ratings scale (PIRS) properly classified; Held – Medical Assessor (MA) bound to accept findings of credit where such findings not concerned with medical dispute as defined in section 319; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffaire v Quality Casting Pty Ltd considered; danger of conflicting judgments considered; Member found claimant unreliable and without credit; MA ignored Member findings & failed to give adequate reasons; Medical Assessment Certificate revoked; section 323 increased to 50% and Panel declined to rule on PIRS categories, as being of no utility.
Decision date: 10 October 2023 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998;appellant alleged error in the failure of the Medical Assessor to make a deduction under section 323 for the contribution of a diagnosed pre-existing condition to the overall level of permanent impairment assessed and failed to give adequate reasons; Appeal Panel satisfied as to error; Held – Medical Assessment Certificate revoked.
Decision date: 11 October 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal against hearing loss assessment of 8% whole person impairment; whether Medical Assessor (MA) able to make a deduction for exposure to dangerous noise after the deemed date pleaded; Held – injury date on referral incompatible with MA’s findings of fact; referral injury date appeared to be a typographical error; Medical Assessment Certificate revoked to correct date of injury given in the table 4 certificate; MA correct to make deduction for noise exposure after the deemed date; Schofield v Abigroup Ltd considered and applied; challenges to frequencies used and to tinnitus assessment open to MA.
Decision date: 11 October 2023 | Panel Members: Member John Wynyard, Dr Joseph Scoppa, and Dr Brian Williams | Body system: Hearing
Assessment under the psychiatric impairment rating scale (PIRS); appeal with respect to two PIRS tables; 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; leave to rely on statement declined; assessment was open to MA in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed
Decision date: 11 October 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal from assessment of whole person impairment (lumbar spine); whether assessor erred in deducting 4/5ths for pre-existing injury and fusion at L5/S1; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 11 October 2023 | Panel Members: Member Richard J Perrignon, Dr James Bodel, and Dr David Crocker | Body system: Spine and Scarring
Whether Medical Assessor (MA) erred when assessing appellant’s impairment in social and recreational activities by taking into account matters that should have been considered under travel or under social functioning; whether MA’s rating of appellant’s impairment in concentration, persistence and pace was correct; discussion of Ballas v Department of Education (State of NSW); MA did not take into account irrelevant matters when assessing appellant’s impairment in social and recreational activities; MA’s rating of appellant’s impairment in concentration, persistence and pace was open to MA to make; Held – Medical Assessment Certificate upheld.
Decision date: 11 October 2023 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Appeal from finding of 19% whole person impairment by psychologically injured worker; whether Medical Assessor had given adequate reasons; whether assessment of concentration persistence and pace open; Held – factual findings not supported by reference to evidence, which contradicted the impugned assessment; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan considered and applied; Medical Assessment Certificate revoked and assessment of 22% substituted.
Decision date: 11 October 2023 | Panel Members: Member John Wynyard, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal from 0% assessment for the lumbar spine; whether Medical Assessor (MA) failed to apply criteria entitling the claimant to a DRE II category entitlement; whether complaints recorded through the evidence capable of establishing non-verifiable radiculopathy; Held – whilst a rehabilitation consultant and a physiotherapist had made comments resembling complaints of radiating pain, the orthopaedic expert relied on did not find on his assessment in August 2022 that the claimant was experiencing non-verifiable radiculopathy; Medical Assessment Certificate was dated 2023, and the subject condition was consequential on an injury to the right foot; it was consistent that the claimant would have improved, as was noted by the MA.
Decision date: 18 October 2023 | Panel Members: Member John Wynyard, Dr Tommasino Mastroianni, and Dr Doron Sher | Body system: Right Lower Extremity, Spine and Scarring (TEMSKI)
Appellant alleged error in the assessment in respect of three of the categories under the psychiatric impairment ratings scale (PIRS), social and recreational activities, travel and social functioning; the Appeal Panel could discern no error; all ratings were open to the Medical Assessor and assessed in accordance with correct criteria; Held – Medical Assessment Certificate confirmed.
Decision date: 16 November 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Worker alleges Medical Assessor (MA) erred in assessing the psychiatric impairment ratings scale (PIRS) categories of self-care, travel, and concentration; Panel accepts that MA did not provide adequate reasons for his classification of the latter two classes; Wingfoot Australia Partners Pty Ltd v Kocak applied; after re-examination by a Member of the Panel, travel and concentration assigned the same classification as in Medical Assessment Certificate (MAC); Held – MAC confirmed.
Decision date: 20 November 2023 | Panel Members: Member Paul Sweeney, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
The appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to a number of the psychiatric impairment ratings scale (PIRS) categories, namely travel, social functioning, concentration, persistence and pace and employability; the appellant also submits that the MA erred in failing to make an adjustment for the effects of treatment; panel held no errors except for employability; On re-examination, Panel held the appellant was significantly impaired in this category; Held – Medical Assessment Certificate revoked.
Decision date: 20 November 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Psychological injury to train driver; extent of Medical Assessor’s obligation to comment on statement and medical evidence in file; Bojko v ICM Property Service Pty Ltd and State of New South Wales (NSW Department of Education) v Kaur referred to; assessment under the psychiatric impairment rating scale in four categories; Ballas v Department of Education applied; Held – Medical Assessment Certificate revoked.
Decision date: 20 November 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Whether Medical Assessor (MA) erred by finding the respondent had cauda equina syndrome and assessing respondent had permanent impairment of reproductive system based on that finding; Appeal Panel found that the MA erred by finding respondent had cauda equina syndrome because the requirements of paragraph 4.22 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 had not been met; Held – Medical Assessment Certificate revoked.
Decision date: 21 November 2023 | Panel Members: Member Marshal Douglas, Dr David Crocker, and Dr Peter Heathcote | Body system: Spine, Scarring, Urinary System, and Reproductive System
Injury to left ankle and consequential condition in lumbar spine with development of chronic regional pain syndrome (CRPS); Medical Assessor did not set out path of reasoning to determination that CRPS not present; re-examination; strict criteria in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 not fulfilled; Elsworthy v Forgacs Engineering Pty Ltd considered; Held – Medical Assessment Certificate confirmed.
Decision date: 22 November 2023 | Panel Members: Member Catherine McDonald, Dr Mark Burns, and Dr Drew Dixon | Body system: Spine and Left Lower Extremity
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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