Legal Bulletin No. 110
This bulletin was issued on 12 May 2023
Issued 12 May 2023
Welcome to the hundred and tenth 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; judicial comity; Hicks v Minister for Immigration & Multicultural & Indigenous Affairs and Comino v Kremetis applied; not an error to fail to address submissions not made; Brambles Industries Limited v Bell applied; not every failure to refer to an argument amounts to error; Wang v State of New South Wales applied; alleged error of fact; Raulston v Toll Pty Ltd applied; Held – the Member’s Certificate of Determination dated 3 November 2022 is confirmed.
Decision date: 1 May 2023 | Before: Deputy President Elizabeth Wood
Workers compensation; section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal an interlocutory decision; Licul v Corney applied; section 38A of the Workers Compensation Act 1987; operation of the transitional provisions introduced by Schedule 6, Part 19H of the Workers Compensation Legislation Amendment Act 2012 and Schedule 6, Part 19I of the Workers Compensation Amendment Act 2015, and the Workers Compensation Regulation 2016; application of Babaniaris v Lutony Fashions Pty Ltd; the duty to give reasons; Beale v Government Insurance Office of New South Wales and Pollard v RRR Corporation Pty Ltd applied; Held – leave is granted to the appellant; the Member’s decision dated 10 May 2022 is confirmed; the matter is remitted to a Member to deal with remaining matters.
Decision date: 3 May 2023 | Before: Deputy President Michael Snell
Workers compensation; consideration of expert evidence; Member applying judicial notice to reasoning process; section 43(2) of the Personal Injury Commission Act 2020 and rule 73 of the Personal Injury Commission Rules 2021; Held – The Certificate of Determination dated 19 May 2022 is confirmed.
Decision date: 4 May 2023 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; the claimant sustained injury in a motor vehicle accident on 19 November 2018; application by insurer for exemption under section 7.34(1)(b); the insurer alleged the claimant had made false and misleading statements in failing to disclose to medical assessors his pre-existing psychiatric condition; Held –recommendation made that claim be exempted from assessment; Insurance Australia Limited t/as NRMA Insurance v Banos, Insurance Australia Ltd t/as NRMA Insurance v Taylor and IAG Ltd t/as NRMA Insurance v Abiad referred to.
Decision date: 23 March 2023 | Member: Susan McTegg
Motor Accident Injuries Act 2017; settlement approval; section 6.23; claim for damages for non-economic loss; claimant now 77-years-of-age; left hip fracture requiring fixation initially; revised total left hip replacement with bone graft; lacerations to left elbow and right hand requiring debridement and closure; pre-accident, the claimant was living independently; claimant’s quality of life compromised by injuries and unlikely to improve in the future, given her age; Held –proposed settlement of $250,000 approved.
Decision date: 3 April 2023 | Member: Maurice Castagnet
Motor Accident Injuries Act 2017; non-economic loss; onus to establish economic loss; Fox v Wood; costs and disbursements; claimant is a 55-year-old man who was injured in a motor vehicle accident; the claim is for past and future economic loss including loss of superannuation benefits and non-economic loss; employment by Sydney Trains as a Signal Area Controller; Held – claimant’s legal costs assessed; breach of duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; order for damages and costs.
Decision date: 5 April 2023 | Member: Hugh Macken
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; claim for damages for mental harm; claimant’s mother fatally injured in a motor vehicle accident; claimant suffers from post-traumatic stress disorder and prolonged grief disorder; claimant resigned from employment because of psychological injuries; not able to work on either full time or part time basis; 46-year-old caseworker entitled to damages for non-economic loss, past and future economic loss plus superannuation; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 17 April 2023 | Member: David Ford
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23(2)(b); claim for damages for mental harm; claimant’s mother fatally injured in a motor vehicle accident; claimant suffers from post-traumatic stress disorder and persistent depressive disorder with anxiety; claimant resigned from employment because of psychological injuries; not able to work on either full time or part time basis; 42-year-old worker entitled to damages for non-economic loss, past and future economic loss plus superannuation; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved.
Decision date: 17 April 2023 | Member: David Ford
Motor Accident Injuries Act; settlement approval; 83-year-old male; claimant stationary in his vehicle when it was struck in the rear by the insured vehicle; liability wholly admitted; more than threshold injuries to neck and left shoulder; 11% whole person impairment; no claim for past economic loss nor future loss of earning capacity as claimant is retired and in receipt of the Age Pension; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved for $200,000.
Decision date: 26 April 2023 | Member: Gary Victor Patterson
Motor Accident Injuries Act 2017;assessment of damages under Division 7.6, subdivision 2; non-economic loss $200,000; claimant suffered injury to neck, right shoulder, back, right arm and elbow; aggravation of degenerative changes; past loss and future economic loss; most likely future circumstances but for the accident; reliance on comparable employee’s earning capacity; Held – damages assessed according to sub-sections 7.36(3) and 7.36(4).
Decision date: 2 May 2023 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; psychological injury claim with dispute as to whether the applicant had discharged her onus of proof to establish injury under section 4(b)(ii); Held – pursuant to section 36, the respondent is to pay the applicant weekly compensation at the rate of $1,350 in the period from 1 February 2020 to 2 May 2020; pursuant to section 37, the respondent is to pay the applicant weekly compensation at the rate of $1,137 in the period from 3 May 2020 to 30 July 2022; the respondent is to pay the applicant’s treatment expenses upon pursuant to section 60 upon production of accounts, receipts and/or Medicare Notice of Charge; the lump sum claim is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess permanent impairment.
Decision date: 27 April 2023 | Principal Member: Josephine Bamber
Weekly benefits; applicant suffered accepted injury to lumbar spine; respondent disputes liability; intervening act which broke the causal chain; question of acceptable evidence; a party which asserts an accepted injury has resolved or its effects passed carries the onus of proof on that question; Commonwealth v Muratore and University of New South Wales v Brooks applied; Held – intervening act did not break the causal chain; even if the alleged intervening act had occurred, the respondent offered no medical evidence that the effects of the alleged event broke the causal chain; the evidence establishes the applicant suffered a recurrence of her accepted lumbar spine injury, which has in turn caused her ongoing total incapacity for employment, which incapacity is not disputed; respondent ordered to pay the applicant weekly benefits from 10 July 2022 to date and continuing.
Decision date: 28 April 2023 | Member: Cameron Burge
Workers Compensation Act 1987; application pursuant to section 145(3) to dismiss notice issued by first respondent pursuant to section 145(1), on the grounds that the second respondent was not a worker or deemed worker; applicant maintained the pre-injury average weekly earnings were incorrectly calculated, as business expenses had not been deducted from earnings; respondents conceded second respondent was not a worker, but maintained he was a deemed worker; second respondent’s evidence approached with caution; documentary evidence considered; consideration of Byrne v Mulholland, Malivanek v Ring Group Pty Ltd, Pasqua v Morelli Constructions Pty Ltd, Scerri v Cahill, Humberstone v Northern Timber Mills, Turner v Stewardson, Wathen v AUT Holdings Pty Ltd, Higgins v Jackson, Cam v Cousins Interstate Transport Pty Ltd and Transport Contract Services (NSW) Ltd v Employers Mutual NSW Ltd; Held – second respondent was a deemed worker of the applicant; the first respondent correctly calculated the second respondent’s pre-injury average weekly earnings; application to dismiss notice refused; applicant to pay to the first respondent the sum of $21,350.78, in accordance with the notice dated 11 February 2022.
Decision date: 28 April 2023 | Senior Member: Kerry Haddock
Workers Compensation Act 1987; injury to the right shoulder disputed; consequential condition to left shoulder disputed; claim for permanent impairment compensation; claim for weekly benefits compensation; section 4 and section 37;Hancock v East Coast Timber Products Pty Limited and State of New South Wales v Bishop discussed; Held- the applicant sustained an injury to her right shoulder arising out of or in the course of her employment with the respondent with a deemed date of injury of 11 June 2021; the applicant sustained a consequential condition of the left shoulder due to the injury to her right shoulder arising out of or in the course of her employment with the respondent; the applicant has no current capacity for gainful employment; the applicant has had no capacity for gainful employment since 10 June 2022.
Decision date: 28 April 2023 | Member: John Turner
Workers Compensation Act 1987; claim for weekly benefits compensation; applicant had accepted injury; whether 52-week period provided for the calculation of pre-injury average weekly earnings (PIAWE) is adjusted by deducting the period in respect of which the worker had been in receipt of compensation for an unrelated injury; Nitchell v Secretary (Department of Communities and Justice) applied; Held – the 52-week period provided for the calculation of PIAWE is adjusted by deducting the weeks to which Schedule 3, clause 6(2)(c) applied; the applicant’s weekly compensation is to be calculated on PIAWE of $1,748.86; the respondent pay the applicant $1,661.42 per week from 4 April 2022 to 3 July 2022 pursuant to section 36; the respondent pay the applicant $1,399.01 per week from 4 July 2022 to 7 March 2023 pursuant to section 37; the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts.
Decision date: 1 May 2023 | Member: Karen Garner
Workers Compensation Act 1987; claim for weekly compensation and reasonably necessary medical and related treatment expenses for a psychological injury where the principal issue raised by the section 78 notice and reply was a defence under section 11A as to whether the applicant’s admitted psychological injury was wholly or predominantly caused by reasonable action taken on behalf of the respondent in relation to the provision of employment benefits to the applicant; Held – that a full review of the evidentiary statements contemporaneous medical records and qualified doctors reports established on the balance of probabilities that the respondent failed to discharge its onus under section 11A; further held that in any event the psychological injury was predominantly caused by problems the applicant experienced with the computer and IT systems operated by the employer; further held that the actions relied upon by the respondent were not reasonable in any event; Pirie v Franklins Ltd applied; Department of Education and Training v Sinclair applied in relation to onus and Irwin v Director General of Education applied on issue of reasonableness.
Decision date: 1 May 2023 | Member: Michael Moore
Workers Compensation Act 1987; application for assessment by a Medical Assessor (MA); applicant had accepted injury to cervical spine and lumbar spine; whether the applicant sustained injury pursuant to sections 4(a) and 9A in respect of right upper extremity and left upper extremity; whether applicant sustained consequential injury in respect of right upper extremity, left upper extremity, upper digestive tract and anal disease; Held – applicant sustained injury pursuant to sections 4(a) and 9A to her right shoulder; applicant sustained consequential conditions in respect of the right shoulder, right elbow, right wrist, left wrist, gastrointestinal condition and anal disease; award for respondent in relation to left shoulder injury, left shoulder consequential condition, left elbow injury and left elbow consequential condition; matter remitted to the President of the Personal Injury Commission for referral to a MA for assessment of permanent impairment in relation to the applicant’s right upper extremity (shoulder, elbow, wrist), left upper extremity (wrist), upper digestive tract, anal disease and TEMSKI/scarring.
Decision date: 1 May 2023 | Member: Karen Garner
Workplace Injury Management and Workers Compensation Act 1998; interlocutory decision relating to terms of referral of accepted or proven injuries for medical assessment; employer alleges that worker estopped from repudiating agreement to amend referral; the terms of referral precluded the worker from subsequently arguing aggregation pursuant to section 322; Held – it was not open to a Medical Assessor to conclusively determine aggregation; that was a matter for the Personal Injury Commission (Commission); as the respondent was unable to prove detriment there was no estoppel; matter referred for assessment of medical dispute with liberty to apply to the Commission in respect of aggregation if necessary.
Decision date: 1 May 2023 | Member: Paul Sweeney
Terms of referral to a Medical Assessor (MA); accepted injury to both knees and scarring; claim for lump sum compensation; no dispute matter to be referred to MA for assessment of degree of permanent impairment; dispute as to terms of referral; description of body parts; applicant maintained body parts referred should be “left lower limb” and “right lower limb”; respondent maintained should be “left lower limb (knee)” and “right lower limb (knee)”; application of Skates v Hills Industries Ltd; Held – the parties’ correspondence crystallised the dispute to one of degree of permanent impairment as result of injury to left and right knees; referral to MA to reflect injury accordingly; body parts referred to MA to read “left lower limb (knee)” and “right lower limb (knee)” and TEMSKI scarring.
Decision date: 2 May 2023 | Member: Jill Toohey
Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury due to stress, overwork and lack of support over a two year period in the course of employment with the respondent employer up until the time she was made redundant; the respondent alleged that the applicant’s employment was not the main cause of the contraction of the psychological injury, or the aggravation, acceleration, exacerbation or deterioration of injury, and that if injury was found, the action of the respondent in respect of redundancy and the provision of employments was reasonable under section 11A; detailed examination of treating medical evidence over the period claimed by the applicant that she claimed she was overworked and unsupported, and lay evidence form the applicant and respondent; consideration of subsequent treating medical evidence and independent medical examination evidence; Held – the opinions of the applicant’s treating practitioners in the period after she ceased work for the respondent, and the opinion of the independent medical examiner, were based on incomplete, inadequate of incorrect evidence and should be given limited weight; Hancock v East Coast Timber Products Pty Ltd applied; finding that the applicant’s employment with the respondent over the period claimed by the applicant was not the main cause of the applicant contracting psychological injury, or of the aggravation, acceleration, exacerbation or deterioration of psychological injury; determination of section 11A defence not required; award for the respondent.
Decision date: 3 May 2023 | Member: Brett Batchelor
Motor Accidents Medical Review Panel Decisions
Motor Accidents Compensation Act 1999; the claimant suffered injury on 1 February 2017 from a T-bone collision; 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 Ltd v Marsh applied; Panel satisfied that the claimant had significant pre-existing impairment which was deducted from present impairment; Panel not satisfied that an assault post motor accident contributed to any permanent impairment; Held – claimant assessed at 1% permanent impairment; original Medical Assessment Certificate revoked.
Decision date: 11 April 2023 | Panel Members: Principal Member John Harris, Dr Samuel Lim and Dr Gerard Chew | Injury module: Mental and Behavioural
Motor Accident Injuries Act 2017; medical dispute about whole person impairment and review of assessment under section 7.26; claimant injured in T-bone type accident sustaining head injury resulting in hearing loss (from side airbags deploying), neck chest and ribs, right and left shoulder injuries; Medical Assessor (MA) Cameron assessed whole person impairment (WPI) at 2% and hearing loss assessed by MA Howison at 3%; hearing loss assessment not challenged, head injury, chest and ribs not pursued; claimant alleged left shoulder injury with symptoms so severe she had been unable to use her left shoulder and arm in the four years since the accident; no muscle wasting or atrophy present; claimant refused to demonstrate range of movement in four of the six planes of motion; claimant alleged right shoulder now symptomatic due to overuse; Held – cervical spine injury satisfied diagnosis related estimate (DRE) II criteria due to presence of dysmetria (5%); range of motion in right shoulder normal; range of motion method of assessment could not be used for left shoulder due to claimant’s refusal to move and Review Panel not satisfied movements she did demonstrate were genuine; analogous condition and 2% impairment found which when combined with 3% for hearing loss resulted in 10% WPI not greater than 10%; Medical Assessment Certificates revoked due to difference in WPI figure.
Decision date: 13 April 2023 | Panel Members: Member Belinda Cassidy, Dr Neil Berry and Dr Trudy Rebbeck | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; threshold injury dispute;claimant suffered injury in rear end collision in April 2018; the only dispute was whether the left supraspinatus tear was caused or aggravated by the motor accident and constituted a non-threshold injury; partial tear of the supraspinatus was not caused or aggravated by the motor accident based on: the minor nature of the impact which is unlikely to have caused injury to the left shoulder; the absence of contemporaneous left shoulder complaint; the post-accident scan evidence which is most likely degenerative pathology; the previous 2014 findings of general degenerative changes in the left shoulder which would deteriorate over time; and acute onset of left shoulder symptoms delayed until some two months after the motor accident; Held – claimant suffered threshold injury; original assessment revoked.
Decision date: 27 April 2023 | Panel Members: Principal Member John Harris, Dr Chris Oates and Dr Geoffrey Curtin | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of Medical Assessor Dixon’sassessment under section 7.26;the claimant was 72-years-old at the time of the accident and was knocked over by a forklift truck at Flemington Markets; she alleged injuries to her right shoulder, right wrist, right knee and right ankle in the accident; claimant’s worst injury was her right shoulder; claimant denied any previous right shoulder problems however GP records indicated there were left and right shoulder problems dating back many years with diagnoses of osteoarthritis and osteoporosis over the years; claimant’s left shoulder used as baseline due to similar findings in radiology; claimant’s wrist injury largely recovered but with similar findings in both the injured and uninjured wrists; whole person impairment (WPI) was limited to 1%, right knee said to give no issues however on testing pain was reproduced, and patella-femoral injury confirmed; right ankle had an impairment but medical records from hospital, photographs at time of injury and claim form suggested left ankle was injured and not the right; Held – claimant’s WPI greater than 10%; issues of causation, contralateral shoulders and proper assessment of lower limb injury; no real matter of principle.
Decision date: 27 April 2023 | Panel Members: Member Belinda Cassidy, Dr Tai-Tak Wan and Dr Michael Couch | Injury module: Upper and Lower Limb
Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) assessment review under section 7.26; claimant driving in traffic when his car was T-boned on left side; issue of causation of injuries involved; pre-existing left shoulder pain; work and motor accidents before subject accident; re-examined; Held – claimant sustained soft tissue injuries to right shoulder, lumbar spine, cervical spine aggravating degenerative disc disease; WPI less than 10%; previous impairment Certificate revoked.
Decision date: 27 April 2023 | Panel Members: Member Terence O’Riain, Dr Shane Moloney and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb
Motor Accident Injuries Act 2017; Claimant was a driver in a rear end collision; injuries reported to left and right shoulders, cervical and lumbar spine; practice and procedure;Panel issued a Direction to the parties to file an indexed, paginated bundle of documents; insurer complied; claimant’s solicitor did not file any bundle of documents nor any submissions; Held – original Medical Assessment Certificate set aside; Review Panel issued a new Certificate; claimant’s injuries caused by the motor accident and are threshold injuries (formerly minor injuries); soft tissue injury to the left and right shoulders, cervical and lumbar spine.
Decision date: 28 April 2023 | Panel Members: Member Ray Plibersek, Dr Shane Moloney and Dr Thomas Rosenthal | Injury module: Spine and Upper Limb
Motor Accident Injuries Act 2017; medical dispute about threshold (formerly minor) injury and review of assessment under section 7.26 of Medical Assessor’s assessment; psychiatric injury was minor injury; claimant involved in high speed rear end collision on motorway while about 23 weeks pregnant; Held - after the claimant was re-examined by both Assessors on the Panel, the Panel was determined that the claimant satisfied the criteria for a post-traumatic stress disorder which is a recognised psychiatric injury as per the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and not a threshold injury; original Medical Assessment Certificate revoked.
Decision date: 1 May 2023 | Panel Members: Member Belinda Cassidy, Dr Thomas Newlyn and Dr Gerald Chew | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment pursuant to section 323(2) from finding of 19% whole person impairment (WPI); whether finding by Medical Assessor (MA) that claimant had a pre-existing condition in face of the claimant’s denials relevant to assessment; Held – the claimant had denied any pre-existing condition to the experts concerned with her case, but contemporaneous records demonstrated that the claimant was being treated for a condition acquired in similar circumstances just one month prior to her commencing with the subject employer; MA found that the pre-existing condition had been relapsed and exacerbated by the subject injury but did not explain why he ignored this finding in calculating the 1/10th deduction; Ferguson v State of NSW, Cole v Wenaline P/L and Yang v Industrie Clothing considered and applied; Medical Assessment Certificate revoked and 30% deduction substituted.
Decision date: 27 April 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor’s obligations to give reasons; principles of assessment under the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and the Psychiatric Impairment Rating Scale (PIRS); section 323 deduction; Cole v Wenaline, Ryder v Sundance Bakery and Marks v Secretary, Department of Communities and Justice (No 2) referred to; Held – MAP revoked.
Decision date: 27 April 2023 | Panel Members: Member Catherine McDonald, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal against assessment of 9% whole person impairment for psychologically injured police officer; whether class 2 rating for social functioning and concentration, persistence and pace categories correct; Held – Ferguson v State of New South Wales, Jenkins v Ambulance Service of New South Wales, Glenn William Parker v Select Civil Pty Ltd and Ballas v Department of Education (Ballas) considered and applied; social function category found to be open to the Medical Assessor (MA); concentration persistence and pace assessment based on a flawed reasoning process as primary reason expressed by MA was claimant’s ability to drive long distances which was not appropriate to category; claimant re-examined and classification increased to 3; observations on application of principle in Ballas, but not decided as not argued.
Decision date: 28 April 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier and Dr Doug Andrews | Body system: Psychological/Psychiatric
Psychological injury; assessment under the Psychiatric Injury Rating Scale (PIRS); Jenkins v Ambulance Service of NSW, State of NSW v Ferguson and Parker v Select Civil Pty Ltd considered; assessment of self-care and personal hygiene not supported by evidence; event after date of injury arising out of employment and causing post-traumatic stress disorder (PTSD), which Medical Assessor said was not work-related; State Government Insurance Commission v Oakley discussed; Held – Medical Assessment Certificate revoked.
Decision date: 28 April 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal by worker against findings in Medical Assessment Certificate (MAC) in respect of the psychiatric impairment rating scale (PIRS) categories of: self-care and personal hygiene, social and recreational activity, social functioning, concentration, persistence and pace, and employability; review of evidence and comprehensive summary thereof in the MAC; Held – decision of the Appeal Panel that the findings of the Medical Assessor in respect of concentration, persistence and pace and employability should be overturned; MAC revoked and fresh MAC issued.
Decision date: 28 April 2023 | Panel Members: Member Brett Batchelor, Dr Douglas Andrews and Dr Graham Blom | Body system: Psychological/Psychiatric
Right lower extremity injury; appellant alleged error in the assessment; the Appeal Panel found that the Medical Assessor correctly approached the assessment of impairment of the right lower extremity in accordance with the guidelines because he has selected, based on his findings on clinical examination on the day of assessment upon which he is entitled to rely, the method of assessment that yielded the highest impairment rating, namely range of motion; Held – Medical Assessment Certificate confirmed.
Decision date: 1 May 2023 | Panel Members: Member Jane Peacock, Dr James Bodel and Dr Gregory McGroder | Body system: Right Lower Extremity and Scarring (TEMSKI)
Appellant submitted that the Medical Assessor erred in failing to undertake an assessment of and/or report on the residual symptoms and radiculopathy suffered by the appellant, failed to provide reasons for why he did not assess a further 3% whole person impairment (WPI) for spinal surgery with residual symptoms and radiculopathy and erred in his classification of scarring; Held – no error regarding the lumbar spine; no evidence of radiculopathy on examination; error with scarring assessment; photographs admitted as late evidence demonstrated 2% as per TEMSKI; Medical Assessment Certificate revoked.
Decision date: 1 May 2023 | Panel Members: Member Deborah Moore, Dr Drew Dixon and Dr David Crocker | Body system: Lumbar Spine and Scarring
Psychological injury; appeal only in respect of psychiatric impairment rating scale (PIRS) table assessing concentration, persistence and pace; Medical Assessor did not take a detailed history of activities of daily living and focused on making a diagnosis rather than taking a history from which to assess impairment; Held – re-examination required; Medical Assessment Certificate revoked.
Decision date: 3 May 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Brian Parsonage | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Motor Accident Injuries Act 2017;determination of pre-accident weekly earnings (PAWE) in accordance with Schedule 1 clause 4; where there was a gap in earnings in the 12 months prior to the accident due to COVID-19 lockdown; claimant earning at the time of the accident; claimant argues PAWE should be determined in accordance with Schedule 1 clause 4(2)(a) or, in the alternative, clauses 4(2)(b) and (3); insurer argues PAWE should be determined under Schedule 1 clause 4(1); Mackary v Allianz Australia Insurance Limited, Conde v IAG, Wannous v QBE Insurance (Australia) Limited and Allianz Insurance Australia Limited v Shahmiri considered; Held – the term ‘earnings circumstances’, as used in Schedule 1 clause 4(3), refers to circumstances involving an earner who is earning at the time the change in circumstances occurs; if the earner is not earning, there are no ‘earnings circumstances’, and the sub-clause does not apply; as the claimant was not earning at the time he returned to work, there was no change in ‘earnings circumstances’ and Schedule 1 clause 4(3) did not apply; that an individual was not earning because they were in lockdown is a relevant fact when determining which sub-clause in clause 4 applies, but it is one fact to be taken into consideration together with all other relevant facts; PAWE to be determined in accordance with clause 4(2)(a); insurer’s decision set aside and remitted back to insurer to determine entitlements.
Decision date: 21 April 2023 | Merit Reviewer: Brett Williams
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.
Subscribeto receive legal bulletins to your inbox.