Legal Bulletin No. 146
This bulletin was issued on 2 February 2024
Issued 2 February 2024
Welcome to the one hundred and forty sixth 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 Decision
Workers compensation; whether the appellant’s late claim for compensation was occasioned by ignorance, mistake or other reasonable cause; factual findings; application of principles in Raulston v Toll Pty Ltd; Held – the Certificate of Determination dated 13 January 2023 is confirmed.
Decision date: 25 January 2024 | Before: Acting Deputy President Michael Perry
Motor Accidents non-Presidential Member Decision
Claims assessment; pedestrian; damages claim; liability wholly admitted; workers compensation; terminated a year after the accident and has not worked since; accident caused spinal changes; conventional treatment pursued for four years; 2022 spinal fusion surgery unsuccessful; combination of psychological and functional disability; non-economic loss; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity to progress in career; travel expenses; insurer alleges residual earning capacity; theoretical earning capacity where low reasonable prospect of obtaining work to utilise it; insurer alleges malingering based on organisational psychologist’s assessment more than five years after accident; lack of evidence on efficacy of tests for malingering; lack of objective corroborative evidence for malingering allegation such as observations, social media and medical reports; Stevens v DP World Melbourne Ltd considered on credit and alternative reasons for claimant’s poor performance in testing; most likely claimant would have continued in his industry and have opportunities to progress; small chance of returning to work reflected in vicissitudes discount; loss of earnings and buffer for loss of opportunity applied; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witness; interest; legal costs; accidents caused disabilities and pain that would make it difficult to sit in economy class in long distance travel; travel damages assessed; Personal Injury Commission Rules 2021; Malec v JC Hutton and Wallacev Kam followed; assessment of damages for personal injury; Held – claimant suffered economic loss; damages assessed at $1,794,954.
Decision date: 12 January 2024 | Member: Terence O'Riain
Workers Compensation non-Presidential Member Decisions
Claim for benefits in respect of the death of a worker; whether the dependants’ claims are maintainable in circumstances where the worker was a director of an uninsured company; consideration as to how to interpret sections 4A and 3(1A) of the Workers Compensation Act 1987 (the 1987 Act), and section 4(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); consideration of statements, claim correspondence, and factual material; Military Rehabilitation and Compensation Commission v May, Project Blue Sky Inc v Australian Broadcasting Authority, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, Grain Growers Limited v Chief Commissioner of State Revenue (NSW), Hadfields Steel Works Limited v Meyer, Meyer v Hadfields Steel Works Limited, SZTAL v Minister for Immigration and Border Protection, Hesami v Hong Australia Corporation Pty Limited, Newcastle City Council v GIO General Limited, Saeed v Minister for Immigration and Citizenship, Kline v Official Secretary to the Governor General, Khoury v Government Insurance Office of (NSW),and Amaca v Cremer & Ors considered; Held – the claims of the applicant, the third respondent, the fourth respondent, and the fifth respondent arising out of the death of the worker on 15 April 2004, pursuant to part 3 division 1 of the 1987 Act, are not maintainable by reason of section 4A, having regard to my interpretation of that provision as well as section 3(1A) and section 4(2) of the 1998 Act; award for the second respondent.
Decision date: 19 January 2024 | Member: Gaius Whiffin
Workers Compensation Act 1987; weekly benefits claim in relation to psychological injury; respondent disputes injury and alleges non work related matters were the main contributing factor to psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which employment was the main contributing factor under section 4(b)(ii); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation.
Decision date: 22 January 2024 | Member: Diana Benk
Workers Compensation Act 1987; death claim; heart attack injury; issues as to whether the deceased was a deemed worker of the first respondent; whether the first respondent has a liability to the dependents of the deceased under section 20; whether section 4A precludes payment of compensation to the dependents of the deceased in relation to any liability of the first respondent and whether section 9B precludes payment of compensation to the dependents of the deceased; Held – in relation to deemed worker issue, Morgan v 45 Flers Avenue Pty Ltd applied and finding deceased not a deemed worker; in relation to section 20, issue Shao Wen Zheng v Guo Yong Yang & Ors applied and inference drawn that the deceased was an employed working director of his uninsured company, Devman Logistics Pty Ltd; finding made Devman Logistics Pty Ltd was uninsured and had contracted with the first respondent to supply the driving services of the deceased; finding made that the first respondent was liable to pay compensation as a section 20 principal; in relation to section 4A issue, Hadfields Steel Works v Meyer and Sinanian v Eks Carpentry Ltd and Anor distinguished and finding section 4A did not apply to liability of a section 20 principal; in relation to section 9B issue, Da Silva v Secretary, Department of Finance, Services and Innovation, Renew God’s Program Pty Ltd v Kim and UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer applied; finding made that the nature of the employment concerned gave rise to a significantly greater risk of the deceased work suffering the injury than had he not been employed in employment of that nature, such as sedentary work.
Decision date: 23 January 2024 | Principal Member: Josephine Bamber
Workers Compensation Act 1987; claim for a finding that the applicant worker suffered injuries to and/or conditions in his bilateral hips and lumbar spine as a result of the ‘nature and conditions’ of his employment with a deemed date of injury in October 2016, being the date on which the applicant first suffered incapacity as a result of injury in accordance with section 16; the applicant asserted that a frank injury in January 2015, undisputed by the respondent and resulting in the same injuries and conditions, should be regarded as part of the nature and conditions claim; the applicant also claimed the cost of past and future weight loss surgery claimed to result from a significant weight gain as a result of the conceded injuries and conditions; discussion of the concept of ‘nature and conditions’ claims as referred to in Topliss v Coles Group Ltd t/as Coles Logistics, Mirkovic v Davids Holdings Pty Ltd, and Raulston v Toll Pty Ltd; examination of the evidence of the treating medical practitioners and evidence of the independent medical examiners engaged by the parties in respect of causation of injuries/conditions; Held – determination that the Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016; determination that the past weight loss surgery was reasonably necessary as a result of the January 2015 injury, and the respondent ordered to pay for the costs of and incidental to that surgery; finding that the further weight loss surgery, in the form of circumferential lipectomy, is reasonably necessary as a result of the January 2015 injury.
Decision date: 24 January 2024 | Member: Brett Batchelor
Motor Accidents Medical Review Panel Decisions
Medical assessment of whole person impairment (WPI); Medical Assessor (MA) Menogue assessed cervical spine - soft tissue, right shoulder - soft tissue at 1% WPI, lumbar spine - soft tissue; total WPI at 1%; review by Medical Review Panel; Held – certificate of MA revoked; Panel certifies that WPI arising from the injuries is 2%.
Decision date: 14 December 2023 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Geoffrey Stubbs | Injury module: Spine, Upper Limb, and Skin - Scarring
The claimant suffered injury in a motor vehicle accident on 13 January 2021; Medical Assessor Cameron (MA) certified injury to cervical, thoracic and lumbar spine are threshold injuries; soft tissue injury to right hand is a threshold injury; injury to brain (seizure) not caused by accident; MA Cameron held the MRI scan of the lumbar spine and four sessions of physiotherapy related to the injury caused by the accident but was not reasonable and necessary in the circumstances; Held – Panel not satisfied claimant able to establish two or more signs of radiculopathy or the presence of annular fissure on MRI scans notwithstanding opinion of treating specialist; injury to lumbar spine is a threshold injury; claimant sustained soft tissue injury to cervical and thoracic spine and to right hand which has resolved; claimant not satisfied seizure occurred or that if it did occur it was related to the accident; Panel finds threshold injury; Panel finds MRI scan of lumbar spine and four sessions of physiotherapy related to accident but not reasonable and necessary; Panel affirms certificate of MA Cameron.
Decision date: 15 January 2024 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Nervous System (Neurological), Spine, and Upper Limb
The claimant suffered injury when he came off a motor bike on 9 October 2019; immediate treatment sought regarding fractured nose; fractured nose assessed as 8% whole person impairment (WPI) by Medical Assessor (MA) Curtin; the dispute related to the assessment of WPI under the Motor Accident Injuries Act 2017 of cervical spine, lumbar spine, both shoulders, right ankle, right hand, left elbow, and left knee; review of certificate of MA Bodel who assessed 5% WPI in respect of injury to lumbar spine; question as to causation of lumbar spine injury, cervical spine injury, both shoulders, left elbow; Held – no complaint, no investigation and no treatment of lumbar spine, cervical spine, left elbow and left knee; Panel not satisfied on balance of probabilities injury caused by accident; right shoulder injury caused by accident where slid to the right when came off bike, complained to GP on 27 February 2020 of right shoulder pain since accident; right shoulder assessed based on restricted range of motion at 4% WPI; left shoulder injury not caused by accident where no complaint until 26 October 2020 and where claimant unsure whether he sustained injury to left shoulder; soft tissue injury and abrasion to right hand resolved; right ankle injury caused by accident where complained to GP on 27 February 2020 of right ankle pain since accident; ongoing pain but normal range of movement of right ankle; right ankle assessed at 0% WPI; Combined Certificate determined 12% WPI.
Decision date: 16 January 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, Lower and Upper Limb; Treatment Type: Surgery
Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant was injured in a motor vehicle accident on 17 January 2022; the following injuries were threshold injuries, soft tissue injury left shoulder, thoracolumbar soft tissue injury, thoracolumbar spine; Held – Certificate of MA Bernard Tamba-Lebbie affirmed.
Decision date: 16 January 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Clive Kenna | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Appeal against 8% finding for a psychological injury where the Medical Assessor had awarded a class 2 rating for the social and recreational activities category in the Psychiatric Impairment Rating Scale where the worker had been gambling on poker machines; whether Ballas v Department of Education applied to make that finding erroneous; Held – class 2 rating unsustainable in the light of Ballas v Department of Education; other evidence demonstrated a moderate rating; Ballas v Department of Education considered; Medical Assessment Certificate revoked.
Decision date: 18 January 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Primary psychiatric injury; alleged error in assessment of the employability category of the Psychiatric Impairment Rating Scale; Panel considered that the assessment of class 2 was open to the Medical Assessor and there was no error or the application of incorrect criteria in the assessment; Held – Medical Assessment Certificate confirmed.
Decision date: 18 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Claim for loss of hearing due to noise exposure and barotrauma; parties agreed error in assessment of loss of hearing due to noise exposure outside NSW; Medical Assessor (MA) included assessment of loss due to barotrauma with assessment of loss due to noise exposure; MA erred in assessing impairment as a result of barotrauma, and in combining assessments due to barotrauma and sensorineural deafness due to exposure to industrial; Held – Medical Assessment Certificate revoked.
Decision date: 22 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Joseph Scoppa, and Dr Brian J Williams | Body system: Hearing
Workplace Injury Management and Workers Compensation Act 1998; claim for whole person impairment (WPI) of right thumb and right lower extremity, hip and consequential condition in the knee; Medical Assessor (MA) assessed WPI of right wrist; Panel satisfied that this was not part of the dispute between the parties and MA erred in making that assessment; MA made no deduction under section 323 in respect of the right hip; Panel satisfied that this finding was open to the MA on the evidence and there was no error but simply a difference in opinion concerning whether a deduction should be made under section 323; Held – Medical Assessment Certificate revoked.
Decision date: 22 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Right Upper and Lower Extremity
Appeal by employer against 15% psychiatric assessment; whether Medical Assessor (MA) offended principle in Ballas v Department of Education by including inappropriate facts in the social and recreational activities of the Psychiatric Impairment Rating Scale category; Held – MA included in this category facts that pertained to the social functioning category, and thus offended against Ballas v Department of Education; offending references were excised and the Appeal Panel reassessed both categories; the MA had not included the impugned facts in his class 2 assessment for social functioning, but they were found to warrant a class 2 rating also; the remaining facts relied on regarding the social and recreational activities category were found to justify a class 3 rating; Medical Assessment Certificate confirmed.
Decision date: 23 January 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Worker suffered an injury to his right leg as a result of which he suffered a deep venous thrombosis in his left leg and pulmonary embolus; assessment of impairment as a result of left leg condition; Medical Assessor (MA) assessed on basis of range of ankle movement, swelling and altered neurological sensation; appeal related to swelling only; assessment of swelling in class 2 of Table 17-38 of AMA 5 was open to MA; Held – Medical Assessment Certificate confirmed.
Decision date: 23 January 2024 | Panel Members: Member Catherine McDonald, Dr David Crocker, and Dr Roger Pillemer | Body system: Left Lower Extremity and Scarring
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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