Legal Bulletin No. 118
This bulletin was issued on 7 July 2023
Issued 7 July 2023
Welcome to the one hundred and eighteenth 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; Appeal Panel of Personal Injury Commission; appeal from medical assessor; error of law as to jurisdiction; taking into account exacerbation of injury caused by later conduct of employer; effect of later conduct determined in favour of employer by earlier award; workers compensation; medical assessment; psychological injury; causation; bullying and harassment at work; award for worker as to conduct up to deemed date of injury; award for employer as to subsequent conduct; Medical Assessor took into account exacerbation of injury caused by later conduct of employer; Held – set aside the decision of the Appeal Panel of the Personal Injury Commission dated 7 November 2022 and the Certificate of Determination issued by the Commission dated 2 December 2022; declare that the Appeal Panel erred in law in failing to find that in issuing the Medical Assessment Certificate dated 16 August 2022 the Commission exceeded its jurisdiction because the medical assessor did not give effect to the estoppel arising from the determination of the Workers Compensation Commission of 6 November 2020, Order 5.
Decision date: 4 July 2023 | Before: Basten AJ
Presidential Member Decisions
Workers Compensation Act 1987; workers compensation; pre-filing statement struck out by order of the President of the Personal Injury Commission; sections 151DA(3) and 151DA(4); Pasminco Cockle Creek Smelter Pty Ltd v Gardner, Luke v Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport and John Lacey Earth Moving Pty Ltd v Campbell-Willis considered; Held – the pre-filing statement filed by the respondent claimant dated 9 August 2020 is struck out pursuant to section 151DA(3); no order as to costs.
Decision date: 28 June 2023 | Before: President Judge Phillips
Workers Compensation Act 1987; workers compensation; clause 2 of Schedule 3; calculation of pre-injury average weekly earnings (PIAWE); whether regulations 8C, 8D or 8E of the Workers Compensation Regulation 2016 apply to exclude from the “relevant earning period” the period when workers compensation payments were received in respect of an earlier injury; statutory construction; Project Blue Sky Inc v Australian Broadcasting Authority, Taylor v The Owners – Strata Plan No 11564, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd and Commissioner of Taxation v Unit Trend Services Pty Ltd applied; Held – order number 1 of the Certificate of Determination dated 28 June 2022 is confirmed; order number 2 of the Certificate of Determination dated 28 June 2022 is amended to read: “The relevant earning period for the calculation of the pre-injury average weekly earnings is adjusted to 1 February 2020 to 19 November 2020 pursuant to regulation 8E of the Workers Compensation Regulation 2016.”
Decision date: 23 June 2023 | Before: Deputy President Elizabeth Wood
Workers Compensation Act 1987; workers compensation; clause 2 of Schedule 3; calculation of pre-injury average weekly earnings (PIAWE); whether regulation 8C of the Workers Compensation Regulation 2016 applies to exclude from the calculation a period when workers compensation payments were received in respect of an earlier injury; Secretary, Department of Communities and Justice v Pell discussed; statutory construction; circumstances when words can be read into the statute; Bermingham v Corrective Services Commission of NSW considered; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) and Taylor v The Owners – Strata Plan No 11564 discussed and applied; Held – the Member’s Certificate of Determination dated 14 October 2022 is revoked; the Member’s further orders dated 24 October 2022 and the final orders dated 28 October 2022 are revoked; the respondent’s “relevant earning period”, as defined by cl 2(2) of Sch 3 to the Workers Compensation Act 1987 is adjusted to be the period from 21 February 2022 until 17 March 2022 inclusive, in accordance with reg 8C of the Workers Compensation Regulation 2016; the parties have liberty to apply in the event that an agreement cannot be reached as to the calculation of the respondent’s PIAWE.
Decision date: 23 June 2023 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decision
Motor Accident Injuries Act 2017; approval of damages settlement pursuant to section 6.23; 31-year-old male injured in motor accident on 11 March 2020; self-represented; injury caused by accident included thoracic spine fracture; entitlement to non-economic loss conceded; initially insufficient evidence, insurer asked to provide further evidence, including a report following assessment by occupational physician; claimant has continued to work since the accident, however, with disruption to continuity of employment; evidence suggests will be able to continue working as a landscape architect into the future; following indication that initial settlement was inadequate, claimant accepted revised offer of settlement from the insurer of $400,000 (including non-economic loss of $260,000); Held – the proposed settlement is approved for the purposes of section 6.23.
Decision date: 20 June 2023 | Member: Elizabeth Medland
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; claim for lump sum compensation in respect of primary psychological injury and consequential endocrinological condition; whether impairment resulting from the psychological injury can be aggregated with impairment resulting from the physical condition; interpretation and application of section 65A(4); Held – section 65A(4) applies to a consequential or secondary physical condition or “injury” and therefore encompasses the applicant’s endocrinological condition; despite section 65(2), impairments to be assessed separately; no basis to refer the physical condition to a Medical Assessor (MA) as there was no evidence of the threshold in section 66(1) being reached; matter remitted to the President of the Personal Injury Commission for referral to a MA to assess the degree of permanent impairment resulting from the primary psychological injury only.
Decision date: 21 June 2023 | Member: Rachel Homan
Workers Compensation Act 1987; claim for medical expenses and lump sum compensation for whole person impairment by reason of psychological injury; whether the applicant had a psychological injury arising out of her employment with the respondent; sections 4(a), 9A and 11A(3); lack of evidence from applicant supporting claims of bullying and harassment by supervisor and lack of contemporaneous medical evidence detailing presentation with psychological symptoms; Held – absence of evidence and unreliability of applicant’s diary notes made retrospective diagnosis by treating and medico-legal practitioners unreliable; failure to discharge onus of proof; award for the respondent; Nguyen v Cosmopolitan Homes and Lyons v Master Builders Assoc referred to.
Decision date: 23 June 2023 | Member: Christopher Wood
Workers Compensation Act 1987; claim in respect of lump sum death benefit; Held – orders made pursuant to section 29 regarding dependency.
Decision date: 23 June 2023 | Senior Member: Elizabeth Beilby
Workers Compensation Act 1987; claim for weekly payments by a worker with an accepted psychiatric injury; dispute as to whether applicant’s injury was wholly or predominantly caused by his transfer, and, if so, whether the respondent’s actions with respect to transfer were reasonable within section 11A(1); Held – in all the circumstances employer’s conduct was reasonable and injury was caused predominantly due to transfer; award for the respondent.
Decision date: 23 June 2023 | Member: Diana Benk
Claim for weekly benefits and medical expenses; applicant suffered injuries to her cervical spine in 2011 with first respondent and in 2020 with second respondent; no issue the proposed cervical fusion surgery is a medical necessary, or as to the degree of the applicant’s claimed incapacity, or her preinjury earnings; dispute as to which injury has caused the applicant’s current incapacity for employment and the requirement for future surgery, and if both to what extent; Held – the need for the proposed cervical fusion was brought about as a result of both injuries, apportioned at 50% for each respondent; the applicant’s claimed incapacity for employment is a result of both injuries, apportioned at 50% each; first and second respondents ordered to each pay half of the costs of and incidental to the proposed cervical spine surgery; first and second respondent ordered to each pay half of the applicant’s weekly compensation as claimed in the Application.
Decision date: 26 June 2023 | Member: Cameron Burge
Workers Compensation Act 1987; claim for weekly benefits, medical expenses and permanent impairment compensation; applicant had accepted injuries to left lower extremity, scarring and nervous system as a result of a fall in the course of his employment; the applicant also claimed a consequential condition to his right lower extremity (ankle) as a result of the accepted injury; liability was denied and it was noted the applicant had a prior serious injury to his right ankle and had already been told that joint would require arthrodesis before the injury at issue; Held – the presence of right ankle pathology before the injury at issue does not obviate the development of a consequential condition as a result of the later injury; it is not necessary for the applicant to demonstrate changes to his right ankle sufficient to establish a section 4 injury in order to show a consequential condition; on balance, the evidence establishes the applicant’s gait altered after the injury at issue, for which he had no fewer than seven rounds of surgery; as a result of that altered gait, the applicant developed a consequential condition in his right ankle; the right ankle is to be referred for medical assessment, along with the other accepted body systems; the claims for medical expenses and weekly benefits are deferred until after the issuing of the Medical Assessment Certificate.
Decision date: 26 June 2023 | Member: Cameron Burge
Workers Compensation Act 1987 (1987 Act); application for lump sum permanent impairment compensation pursuant to section 66 of the 1987 Act; applicant had accepted injury to right knee on 29 April 2008 and accepted injury to left knee and left shoulder on 5 June 2018; whether the injury on 5 June 2018 results from the injury on 29 April 2008 such that the provisions of section 322 of the Workplace Injury Management and Workers Compensation Act 1998 are engaged, so that the respective impairments can be assessed together rather than separately for the purposes of assessment of whole person impairment pursuant to sections 65 and 66 of the 1987 Act; Held – the applicant sustained a right knee injury on 29 April 2009 in the course of her employment with the respondent and to which the employment was a substantial contributing factor; the applicant sustained consequential conditions to her left knee and left shoulder on 5 June 2018 which resulted from the right knee which the applicant sustained on 29 April 2008; section 322 of the 1987 Act was engaged.
Decision date: 27 June 2023 | Member: Karen Garner
Workers Compensation Act 1987; psychological injury; claim for weekly payments and lump sum compensation; applicant was accused by co-worker of inappropriate touching; internal and external investigations failed to substantiate the allegation; no dispute that the applicant had a psychological report injury; whether the injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline; whether the respondent’s action in conducting the investigation constituted discipline; whether it was the whole or predominant cause of the injury Held – the section 11A defence fails; applicant entitled to weekly payments and medical expenses; matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 27 June 2023 | Member: Jill Toohey
Workers Compensation Act 1987; claim for weekly compensation and incurred treatment expenses for bilateral hernia injury; whether hernias pre-existing; whether employment a substantial contributing factor to injury; extent of incapacity where unrelated medical conditions; Held – applicant sustained an injury pursuant to sections 4(a) and 9A; certificates of capacity were not reliable evidence of the extent of incapacity resulting from injury; opinion of applicant’s expert preferred; awards for the applicant for weekly compensation and incurred treatment expenses.
Decision date: 27 June 2023 | Member: Rachel Homan
Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; parties agreed on date claims were “duly made” and rate of interest; Held – applicant to pay interest on the lump sum death benefit as agreed, to be paid pro-rata; interest payable to second and third respondents to be paid to NSW Trustee and Guardian; applicant to pay fees for investing or managing sums paid to NSW Trustee and Guardian on behalf of second and third respondents, pursuant to section 25(1A) of the Workers Compensation Act 1987.
Decision date: 28 June 2023 | Senior Member: Kerry Haddock
Workers Compensation Act 1987; consequential condition to left hip disputed; claim for permanent impairment compensation; claim for weekly benefits compensation; sections 32A(a), 37 and 66; Schedule 3 clause 9; Kooragang Cement Pty Limited v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty, State of New South Wales v Bishop, Briginshaw v Briginshaw, Wollongong Nursing Home v Deware and McCabe Terrill Lawyers v A referred to; Held – the applicant sustained a consequential condition of the left hip due to the injury to her low back arising out of or in the course of her employment with the respondent; between 22 June 2014 and 9 September 2016 the applicant had no capacity for work as a result of the injury to her lumbar spine on 9 September 2008 and the consequential injury to her left hip; by consent the applicant has sustained 15% whole person impairment of the lumbar spine due to injury sustained on 9 September 2008.
Decision date: 28 June 2023 | Member: John Turner
Claim for weekly benefits and medical expenses in respect of injury to left shoulder and thoracic spine; lack of contemporaneous report of injury; CCTV footage did not record injury; applicant claimed to have been mistaken as to date of injury; CCTV footage not available for revised date of injury; applicant continued to work for several weeks after date of alleged injury, until incident at home when ambulance attended; applicant had not returned to work after that incident; applicant’s credit in issue; applicant relied on four statements and statements of neighbours; applicant cross-examined on his statement evidence; consideration of Davis v Council of the City of Wagga Wagga; Mason v Demasi; Kooragang Cement Pty Ltd v Bates and Nguyen v Cosmopolitan Homes; Held – applicant unimpressive witness; contradictions between statement and oral evidence; applicant’s treating doctors not provided with correct history; applicant provided no history of injury to Ambulance Service, Wyong Hospital or Gosford Hospital; accepted that the applicant sustained an injury to his left shoulder, but not to his thoracic spine, on date alleged; the applicant did not establish that incapacity for work or the necessity for medical treatment resulted from injury; award for respondent.
Decision date: 28 June 2023 | Member: Senior Member: Kerry Haddock
Workers Compensation Act 1987; claim for bilateral knee injuries; claim for compensation pursuant to section 66 based on three accepted injuries as well as a disputed injury pursuant to section 4(b)(ii);consideration of applicant’s statements, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant sustained an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with section 4(b)(ii) with a deemed date of 8 August 2022, due to the nature of his employment duties with the respondent; AV v AW, ACW v ACX, Jaffarie v Quality Castings Pty Limited and Bindah v Carter Holt Harvey Wood Products Australia Pty Limited considered; Held – the applicant sustained an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with section 4(b)(ii) with a deemed date of 8 August 2022, due to the nature of his employment duties with the respondent; the determination of the applicant’s whole person impairment as a result of that injury will be remitted to the President for referral to a Medical Assessor (together with the determinations of the applicant’s whole person impairment as a result of his three accepted injuries).
Decision date: 28 June 2023 | Member: Gaius Whiffin
Claim for statutory lump sum death benefit; determination of dependency, and payment of death benefit; TNT Group 4 Pty Limited v Halioris and Kaur v Thales Underwater Systems Pty Ltd discussed and applied; Held – no other persons dependent on the deceased; death benefit payable to respondent.
Decision date: 28 June 2023 | Principal Member: Glenn Capel
Motor Accidents Medical Review Panel Decisions
Motor Accident Injuries Act 2017; claimant was a driver of a car which collided at an intersection on its left-hand passenger side; injuries reported, post-traumatic stress disorder (PTSD) and other psychological injuries; Held –claimant did not sustain any psychological injury as a result of or caused by the motor accident; claimant had a long-term prior history of chronic psychological problems including anxiety, depression and PTSD; Review Panel found the claimant’s adjustment disorder attributable to the accident caused by the motor accident was a threshold injury; claimant had not developed a new psychological injury or an aggravation of a pre-existing injury; claimant had a long term past history of chronic psychological conditions prior to the subject accident; claimant had been involved in three prior motor accidents between 2016 and 2018.
Decision date: 8 May 2023 | Panel Members: Member Ray Plibersek, Dr Michael Li Ying Hong and Dr Atsumi Fukui | Injury module: Mental and Behavioural
Motor Accidents Compensation Act 1999; the claimant suffered injury on 11 June 2017 in a T-bone collision; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; psychological injury accepted based on serious impact, recorded onset of psychological symptoms, clinical examination, and review of materials; Panel did not accept neuropsychological opinion of exaggeration; difficulties observed on neuropsychological assessment referable to psychiatric symptoms, relatively low-level intelligence and poor command of English; deduction made for pre-accident functioning; Held – claimant assessed at 10% permanent impairment; original assessment revoked.
Decision date: 20 June 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Samuel Lim | Injury module: Mental and Behavioural
Motor Accidents Compensation Act 1999; medical assessment of treatment (surgery) by Medical Assessor (MA) Herald and insurer’s review under section 63; claimant passenger involved in intersection collision with impact to driver’s side; claimant alleged injury to neck and back; dispute arose as to whether cervical decompression surgery at C4/5 and C5/6 was related to the injuries caused by the accident and reasonable and necessary in the circumstances; previous car accident in 2003 with disc protrusions at C3/4 and C4/5 and surgery recommended; issue of causation; left arm symptoms developed 6 months after the accident then ceased and right arm symptoms developed 3 years after the accident; Held – claimant’s evidence unreliable due to time since accident; Panel satisfied claimant injured her neck which was soft tissue on a background of degenerative changes; right sided radicular symptoms not caused by the accident; as surgery is to treat those symptoms, the surgery is not related to the accident; AAI Limited t/as AAMI v Phillips followed; even if related, surgery not reasonable and necessary because no evidence of radiculopathy to warrant it, radiology does not support it, surgeon is not certain of the source of the claimant’s pain, compensation setting and claimant has said she does not want the surgery; Clampett v WorkCover Authority of NSW and Diab v NRMA Limited applied; surgery not allowed and certificate of MA Herald revoked.
Decision date: 21 June 2023 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Neil Berry | Treatment Type: Surgery
Motor Accident Injuries Act 2017; threshold injury; lumbar spine; cervical spine; thoracic spine; left shoulder; causation; the claimant suffered injury in a motor vehicle accident on 9 April 2019; review of certificate of Medical Assessor (MA) Bodel; dispute as to causation of left shoulder injury; whether progression of full thickness tear of the superficial fibres of the subscapularis seen on MRI in 2015 to a complete tear of the tendon seen on ultrasound four months post-accident attributed to the accident or part of the progression of degenerative rotator cuff pathology; Held – where no complaints regarding left shoulder between 17 March 2015 and the accident, consistent history of complaint recorded in the Ambulance report, at the hospital and thereafter; where the claimant could not recall any significant symptoms prior to the accident that the accident was a contributing cause which was more than negligible; complete subscapularis tear is a complete rupture of a tendon and is not a threshold injury; accident caused aggravation of pre-existing cervical spondylosis which is a threshold injury; accident caused aggravation of a pre-existing lumbar spondylosis which is a threshold injury; injury to the thoracic spine not caused by the accident.
Decision date: 21 June 2023 | Panel Members: Member Susan McTegg, Dr Wing Chan and Dr Michael Couch | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Whether Medical Assessor’s (MA) assessment of respondent left lower extremity impairment, based on restricted range of movement, accorded with MA’s findings from examination; Appeal Panel found they did not; respondent re-examined; Appeal Panel assessed respondent’s left lower extremity impairment by reference to findings from re-examination, which came to the same as MA had assessed it to be; Held – Medical Assessment Certificate upheld.
Decision date: 22 June 2023 | Panel Members: Member Marshal Douglas, Dr David Crocker and Dr Doron Sher| Body system: Lumbar Spine, Scarring (TEMSKI) and Left Lower Extremity
Lead assessor mistakenly certifies all body parts/systems referred for assessment without reference to Medical Assessment Certificate (MAC) of non-lead assessor who certified body parts referred to him for assessment had not reached maximum medical improvement (MMI); conflicting MACs issued by two assessors; Aircons Pty Ltd v Registrar considered; re-examination by member of Panel of all body parts; Held – both MACs revoked and new MAC issued.
Decision date: 22 June 2023 | Panel Members: Member Paul Sweeney, Dr Neil Berry and Dr Drew Dixon| Body system: Digestive System, Right Lower Extremity, Nervous System and Consequential Medical Condition of the Lumbar Spine
The appellant submitted that the Medical Assessor (MA) had erred in repeatedly concluding that maximum medical improvement (MMI) had not been achieved, despite several reconsiderations undertaken by the MA; the Panel agreed and re-examination was arranged; on re-examination, similar findings were made; whole person impairment assessed was 6%; Held – Medical Assessment Certificate revoked.
Decision date: 23 June 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; appellant alleged error in the making of a section 323 deduction of one-half; the Appeal Panel was satisfied as to error as the making of a one-half deduction was not justified on the available evidence; a deduction of one-tenth was not at odds with the available evidence; Held – Medical Assessment Certificate revoked.
Decision date: 26 June 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson and Dr Tommasino Mastroianni | Body system: Cervical Spine
Motor Accidents Merit Review Decisions
Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); meaning of PAWE, Schedule 1, clause 4(1); burden of proof; insufficient evidence; earnings from self-employment; earnings received after the pre-accident period; Held – the reviewable decision is set aside.
Decision date: 23 June 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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