Legal Bulletin No. 145
This bulletin was issued on 25 January 2024
Issued 25 January 2024
Welcome to the one hundred and forty fifth 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
Held – the third review panel made errors of law on the face of the record and jurisdictional errors; the decision of the review panel dated 12 May 2023 is set aside; the matter is remitted to the Personal Injury Commission to be dealt with according to law; it is recommended that the matter be remitted to a differently constituted Review Panel.
Decision date: 11 January 2024 | Before: Harrison AsJ
Motor Accidents non-Presidential Member Decisions
Motor Accidents Compensation Act 1999; assessment of damages; claimant in receipt of disability pension at the date of accident; working two days a week; pre-existing physical and psychological conditions; wife in receipt of carer’s pension; damages for out of pocket expenses and future commercial care claimed; no claim for non-economic loss, economic loss, or past care; Medical Assessors found that the claimant suffered physical and psychological injury as a result of the accident, and assessed permanent impairment (that was not greater than 10%); Miller v Galderisi, Berkeley Challenge Pty Ltd v Howarth, Gordon v Truong; Truong v Gordon, and White v Benjamin considered and applied; Held – the claimant suffered physical and psychological injury as a result of the accident with associated disability; allowances made for past and future out of pocket expenses and future commercial care.
Decision date: 11 December 2023 | Senior Member: Brett Williams
Motor Accident Injuries Act 2017; settlement approval $306,447; 24-year-old female; past and future economic only; future loss buffer $250,000. whole person impairment (WPI) 0% for psychological injuries; physical injuries WPI 5%; lumbar injury ongoing pain, impact on lifting capacity; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 17 January 2024 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury suffered in the course of employment by the respondent; injury; section 4; reasonable action with respect to discipline; section 11A; capacity; section 33; entitlement to section 60 expenses in issue; applicant suspended for a period of five months in respect of investigations into his conduct, then immediately resuspended on the day of his return to work after this period in respect of further allegations of misconduct; Held – the resuspension was the predominant cause of the applicant’s psychological injury and that such action was not reasonable; both parties relied on what was found by Sackville ALA in Northern NSW Local Health Network v Heggie in respect of section 11A defence; finding that the applicant was totally incapacitated for work for a short, closed period and partially incapacitated for a closed period thereafter; awards made in favour of the applicant accordingly for weekly benefits and section 60 expenses.
Decision date: 20 December 2023 | Member: Brett Batchelor
Workers Compensation Act 1987; claim by schoolteacher for lump sum compensation after suffering a psychological injury as a result of the Public Health Order mandating compulsory vaccination; whether section 11A defence available; whether Hamad v Q Catering Limited complied with as to proof that respondent wholly or predominantly the cause of injury; whether employer able to rely on events following the alleged injurious event (receipt of an email); whether employer’s actions related to discipline as defined by authorities; whether employers actions reasonable; Held – medical evidence demonstrated that injury predominantly caused by actions of employer, Hamad v Q Catering Limited considered and applied; in relation to discipline, the whole process; in this case the emails and guidelines was relevant; Webb v State of New South Wales considered and applied; actions reasonable on the evidence; award for the respondent.
Decision date: 11 January 2024 | Member: John Wynyard
Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation, treatment expenses pursuant to section 60, and lump sum compensation pursuant to section 66; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; respondent accepts that the applicant sustained a psychological injury to which his employment was the main contributing factor but relies upon a defence to his claim pursuant to section 11A; consideration of whether the respondent can establish that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to promotion, demotion, transfer or the provision of employment benefits; Department of Education and Training v Sinclair, Melder v Ausbowl Pty Limited, Pirie v Franklins Limited, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portuguese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Baker v Southern Metropolitan Cemeteries Trust, Hamad v Q Catering Limited,and Drca v KAB Seating Systems Pty Ltd considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of his psychological injury, since 13 September 2021; Ferro v Mercon Group Pty Limited, Stone v Stannard Bros Launch Services Pty Limited, Alto Ford Pty Limited v Antaw,and GIO Workers Compensation (NSW) Limited v GIO General Limited also considered; Held – the respondent has failed to establish its defence under section 11A; the applicant had no current work capacity between 13 September 2021 and 28 July 2023 and is entitled to an award pursuant to section 37(1) in this regard; the Personal Injury Commission does not currently have jurisdiction to make any award in favour of the applicant pursuant to section 38, regarding his claim for weekly benefits compensation from 29 July 2023; the applicant is entitled to have his reasonably necessary treatment expenses pursuant to section 60 paid by the respondent; the applicant’s claim pursuant to section 66 is remitted to the President for Medical Assessment.
Decision date: 11 January 2024 | Member: Gaius Whiffin
Workers Compensation Act 1987; consideration of section 44B; consideration of ‘current work capacity’ under clause 9 of schedule 3 and ‘suitable employment’ under section; Wollongong Nursing Home Pty Limited v Dewar considered; Held – applicant sustained an injury arising out of or in the course of employment with the respondent; applicant has no current work capacity; award for the applicant pursuant to section 36 & 37.
Decision date: 12 January 2024 | Member: Diana Benk
Claim for medical expenses, namely surgical treatment proposed by Dr Sushil Pant, following injury to left shoulder on 11 April 2023; Held – award for the applicant for medical expenses including associated treatment expenses, in respect of the surgery proposed by Dr Sushil Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, as a result of the injury to the left shoulder on 11 April 2023.
Decision date: 17 January 2024 | Member: Carolyn Rimmer
Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s cervical spine as a result of the nature and conditions of employment; applicant underwent cervical spine surgery; whether applicant sustained an injury to his right shoulder as a result of the nature and conditions of employment; whether applicant sustained a right shoulder consequential condition; whether right shoulder arthroscopy and rotator cuff repair surgery is reasonably necessary to address the applicant’s injury and consequential condition; Held – the applicant sustained an injury to his right shoulder, pursuant to section 4 as a result of the nature and conditions of his employment; the applicant’s employment was a substantial contributing factor to such injury pursuant to 9A; the applicant sustained a right shoulder consequential condition; the right shoulder arthroscopy and rotator cuff repair surgery is reasonably necessary as a result of the injury and consequential condition.
Decision date: 17 January 2024 | Member: Karen Garner
Motor Accidents Medical Review Panel Decisions
Claimant suffered injury in a motor accident on 3 August 2020 when the insured vehicle drove into the path of the vehicle she was travelling in as a rear-seat passenger; air bags deployed; confrontation and abuse from driver of insured vehicle at the scene of the accident; whether psychological injury was a threshold injury; no pre-existing psychological condition; where the Medical Assessor at first instance found that a psychological injury, Adjustment Disorder with Mixed Anxiety and Depressed Mood, was caused by the motor accident; Held – original assessment revoked; finding that the claimant’s presentation fulfilled criteria for post-traumatic stress disorder and the psychological injury was a not a threshold injury.
Decision date: 8 January 2024 | Panel Members: Member Maurice Castagnet, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural
Claimant suffered injury on 31 October 2017 when the insured vehicle made a right-hand turn into the path of the claimant’s vehicle, causing a “T-bone” collision; dispute about causation and permanent impairment assessment of injuries to the right shoulder and to the left shoulder; parties accepted previous assessments of other body parts whole person impairment (WPI) of 5%; claimant re-examined by Review Panel; finding that the injury to the right shoulder was caused by the motor accident and that the injury to left shoulder was not caused by the motor accident; assessment of right shoulder gave rise to WPI of 9%. Held – original assessment revoked on the basis that the Review Panel found a higher assessment of WPI for the right shoulder; replacement certificate issued.
Decision date: 8 January 2024 | Panel Members: Member Maurice Castagnet, Dr Geoffrey Stubbs, and Dr Neil Berry | Injury module: Spine, Lower and Upper Limb
Claimant was a driver of a car hit from behind in a roundabout; injuries reported include neck, thoracic spine, and both shoulders; Review Panel found the injuries to the neck and thoracic spine were soft tissue injuries which had resolved by about 12 months after the motor accident; also about 12 months after the motor accident the claimant reported injuring his neck, back and shoulders at a workplace heavy lifting accident; at the Panel’s re-examination the claimant demonstrated a full range of motion to both shoulders; Panel found that none of the claimant’s ongoing complaints or symptoms to both shoulders were caused by or contributed to by the motor accident; Held – original medical certificate which found 7% whole person impairment revoked.
Decision date: 9 January 2024 | Panel Members: Member Ray Plibersek, Dr Ian Cameron, and Dr Peter Yu | Injury module: Spine and Upper Limb
Claimant involved in motor vehicle accident on 22 October 2018 injuring his cervical spine, lumbar spine, right hip, right shoulder and chest and subsequently requiring fusion surgery at C4/5 and C5/6 levels; an issue was whether he suffered threshold injuries; question of whether fusion surgery in 2023 was causally related to the accident; question of whether surgery involving the cutting of skin at the surgery site was a threshold injury; Panel satisfied that the surgery followed a conservative course of treatment which had failed and surgery was a logical next form of treatment; Panel not satisfied claimant had demonstrated two or more signs of radiculopathy; Panel not satisfied that the claimant had demonstrated a supraspinatus tear of his shoulder where an ultrasound showed only a suggestion of this but a subsequent MRI scan being more sensitive showed no evidence of a rotator cuff tear; Panel satisfied that surgery was a non-threshold injury but that the claimants injuries to his lumbar spine, right hip, right shoulder and chest are soft tissue threshold injuries; Held – certificate of MA Cameron revoked.
Decision date: 9 January 2024 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Neil Berry | Injury module: Spine, Lower and Upper Limb
Review of certificate and reasons of Medical Assessor (MA) Tamba-Lebbie dated 23 November 2021 about whether the claimant had suffered threshold injuries; claimant involved in a rear end motor vehicle accident on 25 February 2020; claimant injured his cervical spine, left shoulder, left arm and left hand; the MA had found that all injuries were threshold injuries; claimant had some pre-existing neck and back complaints from which the claimant submitted he had recovered from his pre-accident injury; Panel reviewed scans and investigations by way of comparison of pre and post-accident results; claimant examined by Panel and demonstrated C8 radiculopathy with weakness and wasting and sensory changes; Panel confirmed the claimants C8 radiculopathy was secondary to a traction injury; Panel concluded the claimant had suffered non-threshold injuries; Held – certificate of MA Tamba-Lebbie revoked.
Decision date: 9 January 2024 | Panel Members: Member Alexander Bolton, Dr Drew Dixon, and Dr Geoffrey Stubbs | Injury module: Spine and Upper Limb
Review of decision of Medical Assessor (MA) Home of 12 June 2022 regarding his whole person impairment (WPI) assessment of the claimant of 7%; claimant injured in an accident on 30 October 2018 with a side impact causing her car to mount the curb and strike a tree head-on; airbags deployed; claimant left shoulder movement on examination found to be inconsistent and this was explained to the claimant with the ultimate assessment being undertaken by analogy; on examination claimant found to have slightly limited range of motion of cervical spine, no limitation of movement of her lumbar spine and some restriction of movement of left shoulder; claimant assessed as having 5% WPI of the cervical spine and 2% WPI of left shoulder with total assessment of WPI of 7%; Held – certificate of the MA affirmed.
Decision date: 9 January 2024 | Panel Members: Member Alexander Bolton, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed 19% whole person impairment (WPI) and deducted one third pursuant to section 323 of which resulted in an assessment of 13% WPI; worker appealed ratings in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel and social functioning and in respect of the deduction made for pre-existing condition; Panel satisfied that the ratings in the PIRS categories were open to the MA on the evidence; Panel satisfied that the pre-existing conditions contributed to her current impairment and there was no error or the application of incorrect criteria in the assessment of the section 323 deduction by the MA; Held – Medical Assessment Certificate confirmed.
Decision date: 11 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998 section 327(3)(a) and (b); psychological injury; deterioration in period between date of examination and issuing of Medical Assessment Certificate (MAC); Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission considered; additional relevant information; statement describing deterioration and conduct of examination; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited,and Pitsonas v Registrar of the Workers Compensation Commission and Anor considered; Held – MAC revoked, maximum medical improvement not reached.
Decision date: 12 January 2024 | Panel Members: Member Catherine McDonald, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Appeal against assessment for psychiatric injury by employer; whether Medical Assessor (MA) had failed to consider relevant evidence; whether MA had erred in calculation of employability category of the psychiatric impairment rating scale; Held – employer submissions as to relevant evidence unsupported by evidence and based on speculation; MA plainly aware of evidence referred to; employability finding confirmed on evidence; Ferguson v State of New South Wales, Jenkins v Ambulance Service of New South Wales,and Glenn William Parker v Select Civil Pty Ltd considered; Medical Assessment Certificate confirmed.
Decision date: 12 January 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the psychiatric impairment rating scale for travel; Ferguson v State of New South Wales; assessment of employability; ability to perform “work like activities”; section 323 deduction in respect of previous secondary psychological injury; Mercy Centre Lavington Ltd v Kiely, Mercy Connect Limited v Kiely, and Ausgrid Management v Fisk discussed; no deduction appropriate for time limited condition from which worker had recovered; Held – Medical Assessment Certificate revoked.
Decision date: 15 January 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Appeal from assessment of whole person impairment; whether assessor erred in assessing the psychiatric impairment rating scale for social and recreational activities; Held – Medical Assessment Certificate confirmed.
Decision date: 17 January 2024 | Panel Members: Member Richard J Perrignon, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
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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