Legal Bulletin No. 144
This bulletin was issued on 19 January 2024
Issued 19 January 2024
Welcome to the one hundred and forty 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.
Presidential Member Decisions
Workers compensation; consideration of evidence; calling of applicant to give oral evidence; difference between credibility of witness’s evidence and reliability of witness’s evidence; Held – that there is a distinction between credibility of witness’s evidence and reliability of witness’s evidence; the Certificate of Determination dated 18 November 2022 is confirmed.
Decision date: 8 January 2024 | Before: Acting Deputy President Kylie Nomchong SC
Workers compensation; the test of ‘main contributing factor’ to establish ‘injury’ pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; application of AV v AW; meaning of ‘acceleration’ in section 4(b)(ii); application of Federal Broom Co Pty Ltd v Semlitch; whether Watts v Rake and Purkess v Crittenden can be applied to the construction of section 4(b)(ii); onus of proof of ‘injury’ pursuant to section 4(b)(ii) where multifactorial causation; Commonwealth v Muratore; extent to which expert medical evidence is required in assessing causation of psychological injury; discussion of Hamad v Q Catering Ltd; allegation of appealable error where issue not raised at first instance; application of Brambles Industries Ltd v Bell; weight of medical evidence; application of Paric v John Holland Constructions Pty Ltd; Held – the Certificate of Determination dated 10 January 2023 is confirmed.
Decision date: 11 January 2024 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; complex causation issues; pre-and post-accident history of injuries; claimant’s reliability as a medical historian put in issue by the insurer; likely doctors will be required to give oral evidence; Held – a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 13 December 2023 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; the applicant insurer sought a determination by the Commission that the respondent insurer is the relevant insurer for the purposes of section 3.2; where applicant insurer has accepted the claim for statutory benefits and has not denied the claim; whether the Commission has power to determine the dispute; AMN v Allianz Australia Insurance Limited and AAI Limited trading as GIO considered; Allianz Australia Insurance Limited v Insurance Australia Limited t/as NRMA Insurance followed; Held – section 3.3(2) is concerned with a dispute about which insurer will accept a claim; as the applicant insurer has accepted the claim there is no dispute about which insurer will accept the claim; the pre-condition to the exercise of the power does not exist; the power vested in the Commission by section 3.3(2) does not extend to determining which insurer is the relevant insurer for all purposes; there is no power to determine the dispute; proceedings dismissed; costs; section 8.3(4) gives the Commission the power to permit an Australian legal practitioner to be paid legal costs by their client; it does not empower the Commission to permit one party to a dispute to recover costs from another; recovery of costs by solicitors from insurer client permitted.
Decision date: 8 January 2024 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; application for assessment of damages; insurer purported to issue a direction in accordance with section 6.26(3); insurer submitted that the claimant had failed to provide all relevant particulars, as required by section 6.25; insurer argued that the claim was taken to have been withdrawn; dispute also as to full and satisfactory explanation for delay in provision of particulars; section 6.26(3); Held – as at the date the purported section 6.26 was issued the claimant had provided all relevant particulars about the claim that were reasonably available at that time; the insurer was not entitled to issue the direction; the claim has not been withdrawn and remains on foot; no need to determine the dispute in relation to full and satisfactory explanation for delay in providing particulars.
Decision date: 9 January 2024 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; claim for weekly payments of compensation as a result of a psychological injury; respondent relies upon section 11A defence that injury was predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal; reference to Hamad v Q Catering and Irwin v Director General of School Education; dispute as to the extent of the worker’s incapacity; reference to Wollongong Nursing Home v Dewar and Husnain P/L v Workers Compensation Nominal Insurer & Anor; Held – the respondent has failed to establish a defence pursuant to section 11A because the injury was not wholly or predominantly caused by action taken by employer with respect to performance appraisal and the action taken by the respondent was not reasonable; worker had no current work capacity for about 2 months following his cessation of work with the respondent and the worker has had a partial incapacity thereafter; award of weekly payments of compensation for periods of total and partial incapacity.
Decision date: 8 January 2024 | Member: John Isaksen
Workers Compensation Act 1987; claim for weekly benefits pursuant to section 38A for period from 14 April 2023 to 9 July 2023; applicant was assessed by Medical Assessor (MA) on 14 April 2023 with 30% whole person impairment (WPI) and Medical Assessment Certificate (MAC) issued; applicant appealed against MAC and Medical Appeal Panel (MAP) issued MAC on 10 July 2023, assessing 41% WPI; applicant claimed weekly benefits pursuant to section 38A from the date of the MA’s assessment, on the basis that he had assessed her as having more than 30% WPI, but had applied the wrong tables and criteria, and the MAP had not assessed her; applicant submitted that Meat Carter Pty Ltd v Melides could be distinguished; consideration of Meat Carter Pty Ltd v Melides and L’Estrange v Manildra Meat Company Pty Ltd; Held – award for the respondent.
Decision date: 8 January 2024 |Senior Member: Kerry Haddock
Workers Compensation Act 1987; claim for compensation pursuant to section 60 for incurred medicinal cannabis treatment expenses; accepted injury to the left knee requiring treatment with surgery; whether there is a proper foundation for the acceptance of opinions given by applicant’s expert and prescribing doctor; cost of treatment; actual effectiveness of treatment uncertain; Held – applicant has failed to discharge his onus; award in favour of the respondent.
Decision date: 8 January 2024 | Member: Rachel Homan
Permanent impairment compensation; alleged injury by way of aggravation to lumbar spine and consequential condition to gastrointestinal (GI) system by virtue of long-term prescription of pain killing and anti-inflammatory medication; Held – the applicant suffered injury by way of aggravation to her pre-existing lumbar pathology; the absence of reporting of the work-related incident was explained by the applicant in her statement evidence; although the pathology in the applicant’s spine was pre-existing, the evidence discloses contemporaneous and persistent deterioration in her symptoms since the workplace incidents at issue; that worsening of symptomology, against a background of the applicant having worked for many years after the prior MVA which gave rise to her lumbar pathology, is sufficient to ground a finding of injury to the lumbar spine; the applicant has not discharged the onus of proof in relation to the alleged gastrointestinal condition; there is no evidence as to the dosage and length of time for which the applicant has been prescribed the medication which she alleges caused her condition; although her IME Dr Berry attributes her condition to that medication, the tests undertaken by the applicant’s treating specialist reveal the presence of pathology which is, contrary to Dr Berry’s assertion, at least suggestive of matters other than the prescription of medication as being the cause of the applicant’s GI issues; claim for lumbar spine impairment remitted to the President for referral to a Medical Assessor; award for the respondent on the claim for GI injury/consequential condition.
Decision date: 8 January 2024 | Member: Cameron Burge
Lump sum claim; psychological injury disputed; Attorney General’s Department v K applied; Held – applicant’s employment with the respondent was the main contributing factor to the contraction of the disease; lump sum claim is remitted to the President for referral to a Medical Assessor.
Decision date: 8 January 2024 | Principal Member: Josephine Bamber
Workers Compensation Act 1987; claim for weekly benefits and medical expenses; respondent disputed injury occurred as alleged on basis of CCTV footage; respondent conceded injury to lumbar spine; disputed injury to cervical spine and left shoulder; Held – that applicant discharged the onus upon him to establish that he had sustained injuries to his cervical spine and left shoulder; award for applicant for weekly benefits and section 60 expenses.
Decision date: 8 January 2024 | Member: Carolyn Rimmer
Claim for cost of supply and fitting of binaural hearing aids; worker employed as a bus driver and claims exposure to excessive noise from children on school runs each afternoon; respondent disputes that the worker sustained loss of hearing in the course of his employment and that it was the last noisy employer of the worker; employer relies upon noise survey report; reference to Dawson t/as The Real Cane Syndicate v Dawson; Held – report relied upon by the respondent lacks probative value; the tendencies, incidents and characteristics of the applicant’s employment are such as to give rise to a real risk of industrial deafness; order that the respondent pay for the cost of supply and fitting of binaural hearing aids.
Decision date: 8 January 2024 | Member: John Isaksen
Workers Compensation Act 1987; sections 4 and 60; injury to the left shoulder; injury not disputed; dispute as to whether proposed left total shoulder replacement including any associated rotator repair surgery is reasonably necessary as a result of the work related injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – that pursuant to section 60 the left total shoulder replacement surgery, including any associated left rotator cuff repair proposed by Dr Tack Shin Lee, is as a result of an injury received by the applicant and is reasonably necessary.
Decision date: 9 January 2024 | Member: John Turner
Workers Compensation Act 1987; consideration of ‘current work capacity’ under clause 9 of schedule 3 and ‘suitable employment’ under section 32A; Wollongong Nursing Home Pty Limited v Dewar considered; Held – applicant sustained an injury arising out of or in the course of her employment with the respondent; applicant has no current work capacity; award for the applicant pursuant to section 37.
Decision date: 9 January 2024 | Member: Diana Benk
Workers Compensation Act 1987; claim for weekly and medical expenses following psychological injury on 31 January 2023; respondent relied on a section 11A defence in respect of performance appraisal, discipline and dismissal; Held – events on 31 January 2023 were not the whole or predominant cause of the applicant’s injury and events on 30 December 2022 and 12 January 2023 were causative workplace stressors as well as the events on 31 January 2023; respondent failed to discharge the onus to establish a section 11A defence; award for the applicant for weekly benefits and medical expenses.
Decision date: 9 January 2024 | Member: Carolyn Rimmer
Workers Compensation Act 1987; psychological injury; dispute as to whether applicant sustained psychological injury in the nature of a disease in the course of her employment and the applicant’s employment was the main contributing factor to the disease; further issue of whether respondent established defence under section 11A; claim for weekly benefits compensation; whether applicant has current work capacity; Held – the applicant sustained psychological injury arising out of and in the course of employment; the applicant’s employment was the main contributing factor to the disease; the respondent has not established a defence under section 11A; the applicant has no current work capacity from 23 May 2022 ongoing; the respondent is to pay the applicant weekly compensation pursuant to sections 33, 36 and 37; the Certificate of Determination and statement of reasons to be de-identified.
Decision date: 9 January 2024 | Member: Karen Garner
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; whether psychological and physical injuries sustained by the applicant in a physical altercation were sustained in the course of or arose out of the applicant’s employment; whether the applicant was disentitled to compensation by reason of section 14(2); Held – the applicant sustained injury on 21 January 2019 in the course of his employment and arising out of his employment pursuant to section 4(a), namely a psychological injury and injury to his ear, nose and throat related structures; the applicant’s employment was a substantial contributing factor to the injury in accordance with section 9A; a defence pursuant to section 14(2) is not established; the matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 10 January 2024 | Member: Karen Garner
Motor Accidents Medical Review Panel Decision
The claimant sustained injury in a rear end collision on 3 January 2017; injuries referred for assessment were the cervical spine, thoracic spine, lumbar spine, and left shoulder; Medical Assessor (MA) Shahzad assessed 17% whole person impairment (WPI); Held – inconsistency during examination by medical practitioners; treat claimant’s presentation with caution; evidence of engineers considered; find collision, albeit at low speed, sufficient to cause injury to neck, upper and low back and left shoulder; imaging revealed no significant injury; limited range of movement noted during examination not corroborated by muscle wasting or consistent restriction in rotation; find claimant sustained soft tissue injury to cervical spine, thoracic spine, the lumbar spine and the left shoulder; cervical spine assessed as DRE cervicothoracic category 1 or 0% WPI; thoracic spine assessed as DRE thoracolumbar category 1 or 0% WPI; lumbar spine assessed as DRE lumbosacral category 1 or 0% WPI; given inconsistencies range of motion not reliable method for evaluating level of impairment of left shoulder; left shoulder assessed by analogy; mild crepitation of the right acromioclavicular joint or 2% WPI; certificate of MA Shahzad revoked.
Decision date: 11 December 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem, and Dr Geoffrey Stubbs| Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; whether deduction of one quarter Medical Assessor (MA) made under section 323(1) was an error and based on the application of incorrect criteria; Appeal Panel held MA made assessment based on correct criteria and deduction he made under section 323(1) was open to be made for reasons MA explained and was therefore not an error; Held – Medical Assessment Certificate upheld.
Decision date: 20 December 2023 | Panel Members: Member Marshal Douglas, Dr Margaret Gibson, and Dr James Bodel | Body system: Right Lower Extremity and Scarring (TEMSKI)
Workplace Injury Management and Workers Compensation Act 1998; appellant worked as a deckhand for 24 years from the age of 21 and suffered an injury to his lumbar spine from the work he did in that time; Medical Assessor (MA) made a deduction under section 323(1) of 10% for proportion of appellant’s permanent impairment he found was due to a previous injury or pre-existing condition; whether MA erred by making that deduction; whether MA erred with respect to his assessment of appellant’s impairment relating to ADL; Appeal Panel found MA erred with respect to deduction because there was no evidence of a pre-existing condition or previous injury; Appeal Panel found MA did not adequately explain his assessment relating to ADL and consequently erred; Held – Medical Assessment Certificate revoked.
Decision date: 8 January 2024 | Panel Members: Member Marshal Douglas, Dr Neil Berry, and Dr James Bodel | Body system: Spine
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; Medical Assessor did not make any section 323 deduction; diagnosis of condition included alcohol use disorder; extensive history of alcohol use with adverse consequences in general practitioner’s notes; section 323 deduction of one-tenth appropriate; Held – Medical Assessment Certificate revoked.
Decision date: 8 January 2024 | Panel Members: Member Catherine McDonald, Dr Nicholas Glozier, and Dr Michael Hong| Body system: Psychological/Psychiatric
Appellant had the interphalangeal (IP) joint of his right greater toe fused as part of the treatment of his injury; Medical Assessor (MA) found from his examination of the appellant that the appellant had extension of his metaphalangeal (MTP) joint of his right greater toe to 40 degrees; MA assessed the appellant’s impairment relating to his right greater toe by reference to criteria of Table 17-14; appellant contended that because of the fusion to his right greater toe the MA’s finding that he had extension of the MTP joint to 40 degrees was wrong; appellant contended that MA erred by not assessing his impairment relating to his right greater toe by reference to Table 17-30; Appeal Panel found MA made no error with respect to his finding relating to the movement of the appellant’s MTP joint of his right greater toe given because that joint had not been fused, but rather the IP joint had been fused; Appeal Panel found that given the appellant had movement of his right greater toe that the MA was correct to assess the appellant’s impairment by reference to Table 17-14; Held – Medical Assessment Certificate upheld.
Decision date: 8 January 2024 | Panel Members: Member Marshal Douglas, Dr Neil Berry, and Dr James Bodel | Body system: Right Lower Extremity, Complex Regional Pain Syndrome and Spine
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker pleaded her case as the aggravation of a pre-existing condition and the Commission determined that employment was the main contributing factor to the aggravation of a disease; Medical Assessor did not consider a deduction under section 323; worker under active treatment for non-work related condition at the time of injury; deduction warranted; Held – Medical Assessment Certificate revoked.
Decision date: 8 January 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Dr Michael Hong| Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; the appellant essentially submitted the Medical Assessor (MA)erred in failing to provide adequate reasoning as to “a finding or lack thereof of radiculopathy” in circumstances where there was complaint and clinical evidence of radiculopathy; the Appeal Panel accepted the MA failed to provide adequate reasoning for concluding the appellant “did not have appropriate features to diagnose continuing radiculopathy”; the appellant was re-examined and on re-examination the MA found the appellant suffered left S1 lumbar radiculopathy post-operatively; Held – Medical Assessment Certificate revoked.
Decision date: 8 January 2024 | Panel Members: Member Jacqueline Snell, Dr Brian Stephenson, and Dr Chris Oates| Body system: Spine
Appeal in respect of the impairment assessment for facial disfigurement; assessment on the basis of incorrect criteria alleged; Appeal Panel satisfied as to error; Medical Assessor assessed class 1 but this was held to be incorrect as the appellant qualified for an assessment of facial disfigurement class 2 due to loss of skeletal support for part of the face as a result of loss of upper front teeth and alveolar process; class 2 provides a range of 6 to 10% whole person impairment (WPI) and as the loss is the lower end of that scale the Appeal Panel assessed 6% WPI which is in accordance with the assessment of both the IME qualified on behalf of the appellant Dr Curtis who assessed 6% WPI and that of Professor David, the IME qualified on behalf of the respondent who also assessed 6% WPI for facial disfigurement; in these circumstances the Appeal Panel did not consider it necessary for the worker to be re-examined and the Appeal Panel, consistent with the evidence before it, also assessed class 2 at 6% WPI for facial disfigurement; Held – Medical Assessment Certificate revoked.
Decision date: 9 January 2024 | Panel Members: Member Jane Peacock, Dr Michael McGlynn, and Dr Henley Harrison| Body system: Ear, Nose, Throat Related Structures, Facial Disfigurement and Trigeminal Nerve
Appeal against 16% whole person impairment to the urinary system; worker assessed for multiple injuries suffered in an earthquake; whether Medical Assessor applied incorrect criteria and failed to give adequate reasons; Held – incorrect criteria applied, and demonstrable error made in failure to give adequate reasons; Medical Assessment Certificate revoked.
Decision date: 10 January 2024 | Panel Members: Member John Wynyard, Dr Neil Berry, and Dr Peter Heathcote| Body system: Urinary System, Reproductive System, Spine, Scarring, Left Lower Extremity, Right and Left Upper Extremity
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; whether loss of earning as a result of the injury resulting from the motor accident; weekly statutory benefits in first entitlement period, section 3.6; duty to act in good faith, section 6.23; validity of the claim and whether any part of the claim may be fraudulent, section 6.24, section 6; Held – the reviewable decision is affirmed.
Decision date: 8 January 2024 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under section 3.8, division 3.3; weekly payments after week 78; whether the Commission has jurisdiction to determine a dispute about earning capacity as a merit review matter or as a medical assessment matter; whether the term “impairment of the earning capacity” applies to part 3; where there was no decision made by the insurer under section 3.8; where no internal review of a decision under section 3.8 was conducted; Held – the Commission has jurisdiction to determine a dispute about earning capacity for the purposes of section 3.8 as a merit review matter; proceedings dismissed in circumstances where there was no reviewable decision made under section 3.8 to review as a merit review matter.
Decision date: 8 January 2024 | Merit Reviewer: Maurice Castagnet
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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