Legal Bulletin No. 67

Issued 1 July 2022

Welcome to the sixty-seventh 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

Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768

WORKERS COMPENSATION — medical assessment; medical dispute; referral of medical dispute for assessment by Approved Medical Specialist; degree of permanent impairment as a result of an injury; scope of referral.

Decision date: 16 June 2022| Before: Garling J

Motor Accidents non-Presidential Member Decisions

Herd v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 299

Motor accidents; claimant seeks leave from the Personal Injury Commission to lodge his claim for damages after the three-year limitation period; section 7.33 Motor Accident Injuries Act 2017 (2017 Act) not satisfied a full and satisfactory explanation for the delays given under section 6.14(3) of the 2017 Act within the meaning section 6.2(1) and section 6.2(2) of the 2017 Act; leave refused for the claim to be referred for assessment in accordance with the Motor Accident Guidelines (Version 6 Effective from 18 December 2020).

Decision date: 23 May 2022 | Member: Gary Victor Patterson

Kong v QBE Insurance (Australia) Limited [2022] NSWPIC 278

Motor Accidents; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred while the claimant was making a left hand turn on an inside lane and insured truck turning from the outside lane collided with claimant vehicle; claimant did not see the insured vehicle prior to the accident; where the insured driver was able to see claimant vehicle; Held– claimant not at fault for the motor accident.

Decision date: 25 May 2022 | Member: B K Nolan

Arici v AAI Limited t/as GIO [2022] NSWPIC 301

Motor Accidents; assessment of damages under division 7.6, section 7.36 of the Motor Accident Injuries Act 2017 (2017 Act) in the Commission; whether the Claimant had used his best endeavours to settle the claim before referring it to the Commission for assessment under section 7.32(3) of the 2017 Act; the meaning of ‘best endeavours’; comparison with authorities in contract law; Sheffield District Co v Great Central Railway; Transfield Pty Ltd v Arlo International Ltd; SVI Systems Pty Ltd v Best & Less Pty Ltd; Joseph Street Pty Ltd v Tan; Cypjayne Pty Ltd v Babcock & Brown International Pty Ltd; Waters Lane Pty Ltd v Sweeney and Centennial Coal Company Ltd v Xstrata Coal Pty Ltd; 2017 Act; authority of Mammone v Insurance Australia Limited t/as NRMA applied; Held- the Claimant did not approach the insurer to propose settlement discussions nor did he serve an offer of settlement; there was a failure to prepare the matter with sufficient evidence to enable either party to engage in any settlement negotiations; on the available evidence the claimant failed to use his best endeavours to settle the claim before referring it for assessment; the proceedings are misconceived and lacking in substance, for the purposes of section 54(b) of the Personal Injury Commission Act 2020, because they have been commenced in circumstances where there has been both substantive and temporal non-compliance with section 7.32(3) of the 2017 Act.

Decision date: 14 June 2022 | Member: Anthony Scarcella

Pham v AAI Limited t/as GIO [2022] NSWPIC 304

Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault and whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant swerved to avoid hitting a dog which suddenly ran across his path; claimant subsequently collide with a tree sustaining serious injuries; single vehicle accident; Held– claimant not wholly or mostly at fault; issues of constructions of ‘motor accident’ and “fault” and section 1.4 of the 2017 Act considered; consideration as to cases in single vehicle accidents; costs assessed on exceptional basis pursuant to section 8.10(4)(b)of the 2017 Act.

Decision date: 17 June 2022 | Member: Shana Radnan

Mitchell v AAI Limited t/as GIO [2022] NSWPIC 306

Whether the injured person was mostly at fault pursuant to section 3.11 and 3.28 of the Motor Accident Injuries Act 2017; the Claimant was travelling on the Princes Highway in a 100km/h zone in right hand lane; collision occurred between his vehicle and the insured vehicle that stopped suddenly due to an undetermined mechanical failure; dispute as to whether the Claimant was keeping a proper lookout and safe distance; front dashcam footage of the insured vehicle available; case of March v Stramere Pty Ltd considered;  Held– the Claimant was not mostly at fault; a reasonable person in the position of the Claimant would not have had a reasonable opportunity to avoid the collision; contributory negligence found to be 20%.

Decision date: 20 June 2022 | Member: Elizabeth Medland

Araujo-Perez v Allianz Australia Insurance Limited [2022] NSWPIC 310

Whether the injured person was mostly at fault pursuant to section 3.11 and 3.28 of the Motor Accident Injuries Act 2017; insured vehicle was stationary in the right lane of the M5 Motorway with hazard lights illuminated, following mechanical failure; he Claimant, who was riding a motorcycle collided with the rear of the stationary vehicle at speed; video footage of the collision available; insured driver not available for questioning at the assessment conference; evidence treated with caution leaving open possibility that Insured may have had a reasonable opportunity to steer the vehicle to the left at an earlier point; Held– Claimant mostly at fault with contributory negligence assessed at least 70%.

Decision date: 21 June 2022 | Member: Elizabeth Medland

Green v AAI Limited t/as GIO [2022] NSWPIC 317

Claims assessment; Claimant suffered physical and psychological injuries as a result of a high speed head-on accident; primary dispute about the quantification of his economic loss where he conducted a business through a company; competing accounting reports adopting differing approaches to assessing economic loss; Held– as a consequence of his injuries the Claimant had a loss of capacity to earn that was productive of financial loss; appropriate measure of past economic loss is the replacement labour costs of the company; H Luntz and S Harder, Assessment of Damages for Personal Injury or Death (LexisNexis, 5th ed, 2021); Husher v Husher applied; parties submitted that a buffer award was appropriate for future economic loss; buffer of $130,000 allowed.

Decision date: 24 June 2022 | Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Farag v State of New South Wales (NSW Police Force) [2022] NSWPIC 302

Claim for weekly compensation by civilian employee with accepted psychological injury; employer disputes entitlement to compensation on the basis that injury was caused by action with respect to “transfer” within section 11A of the Workers Compensation Act 1987; applicant transferred on several occasions within short period allegedly for operational reasons and efficiency; Held– that respondent had not proven that  transfer of the worker and the reduction in her pay level  within five days of commencing in a new position after her forced return to the State Crime Command from a secondment was reasonable; award for the applicant.

Decision date: 16 June 2022 | Member: Paul Sweeney

Rootsey v Gofurn Pty Ltd ATF Gofurn N0 2 Trust [2022] NSWPIC 303

Application for reconsideration to permit a medical appeal on the ground of deterioration or reconsideration of a Medical Appeal Panel decision; consequential condition in lumbar spine not referred to by Approved Medical Specialist (AMS); O’Callaghan v Energy World Corporation Ltd; Russo v Work Zone Pty Ltd; reconsideration; Samuel v Sebel Furniture Ltd; Held– that worker suffered a consequential condition in his lumbar spine but application for reconsideration declined.

Decision date: 16 June 2022 | Member: Catherine McDonald

Howarth v Hi Spec Pty Limited [2022] NSWPIC 305

Accepted injury to lumbar spine; claim for cost of L4/5, L5/S1 anterior interbody fusion (stage 1) and L4/S1 decompression and fusion (stage 2); respondent disputed that surgery is reasonably necessary; consideration of Diab v NRMA Ltd; Held– respondent to pay pursuant to section 60(5) of Workers Compensation Act 1987 cost of L4/5, L5/S1 anterior interbody fusion (stage 1) and L4/S1 decompression and fusion (stage 2).

Decision date: 16 June 2022 | Senior Member: Kerry Haddock

Van den Hout v Woolworths Group Limited [2022] NSWPIC 307

Weekly benefits claim and claim for future surgery surrounding allegations of injury to multiple body systems; Held– the applicant suffered injuries by way of aggravation to underlying conditions to her left hip and left knee in the course of her employment with the respondent, with a deemed date of injury of 7 October 2021; Federal Broom Co Pty Ltd v Semlitch; Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd; AV v AW discussed and followed; the applicant has not discharged the onus of proof with respect to the claims for injury to the lumbar spine, left upper extremity, cervical spine, left hip, bilateral wrists and left ankle; award for the respondent on the injuries claimed in (ii) above; as a result of the injuries referred to in (i) above, the applicant is totally incapacitated for employment; the proposed surgeries to the applicant’s right knee and right hip are reasonably necessary as a result of the injury referred to in (i) above; Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; respondent to pay for the costs of and incidental to the proposed surgeries; respondent to pay the applicant weekly compensation in accordance with the amended claim.

Decision date: 20 June 2022 | Member: Cameron Burge

Fonti v Verdi Verdura Pty Ltd [2022] NSWPIC 308

Claim for permanent impairment compensation; applicant suffered accepted injury to the cervical spine and left shoulder; his claim for consequential condition to the right shoulder was disputed; Held– the applicant suffered a consequential condition to his right shoulder as a result of his accepted injuries; the circumstances of this case were broadly consistent with those found in Kumar v Royal Comfort Bedding Pty Ltd and Arquero v Shannons Anti Corrosion Engineers Pty Ltd;the decision in Grant v Dateline Imports Pty Ltd was distinguishable from this matter on the facts, as the applicant had discharged the onus of proof in establishing on a common sense basis the causal connection between the accepted injuries and the alleged consequential condition caused by over use of the right shoulder; matter remitted to the President for referral of all claimed body systems for assessment of permanent impairment.

Decision date: 20 June 2022 | Member: Cameron Burge

Johnson v Arandale [2022] NSWPIC 309

The applicant sustained a compensable left wrist injury and sought weekly compensation pursuant to section 38 of the Workers Compensation Act 1987; the pleadings stated and the parties confirmed that the worker and the employer were residents of different States at the time of filing; Ritson v State of New South Wales; Held– matter dismissed due to absence of jurisdiction to determine the dispute.

Decision date: 20 June 2022 | Principal Member: John Harris

Baker Built Pty Ltd v Meany & Ors [2022] NSWPIC 311

Apportionment of lump sum death benefit pursuant to section 25 Workers Compensation Act 1987 and consideration of whether payment of the sum apportioned to two year old minor should be made to NSW Trustee or to a discretionary trust; Held– payment to be made to NSW Trustee.

Decision date: 21 June 2022 | Principal Member: Josephine Bamber

Kennedy v Boral Limited [2022] NSWPIC 312

Claim for 52 weeks of weekly compensation; accepted injury to left hamstring and left shoulder; whether the applicant sustained separate injuries to the left knee and hip in the same event; extent of incapacity resulting from injury; Held– award for the respondent on the allegation of left knee and hip injury; knee and hip symptoms attributed to the left hamstring injury; the applicant had in the relevant period no current work capacity; award for the applicant with respect to the claim for weekly compensation.

Decision date: 21 June 2022 | Member: Rachel Homan

Connolly v Secretary, Department of Education [2022] NSWPIC 313

Reconsideration and appeal against Medical Assessment Certificate (MAC) in which Approved Medical Specialist (AMS) opined body parts not listed in referral nor previously claimed, could be assessed for the degree of permanent impairment as a result of the subject injury; consideration of Skates v Hills Industries Ltd; procedural fairness; Held– matter to be referred again to MA for assessment of additional body parts, following timetable for parties to obtain further medical opinion.

Decision date: 21 June 2022 | Member: Michael Wright

Lyons v Target Australia Pty Ltd [2022] NSWPIC 314

Claim for proposed lumbar fusion surgery and weekly compensation; consideration of medical opinions; Held– proposed surgery reasonably necessary as a result of subject injury; award for applicant pursuant to section 60 of the Workers Compensation Act 1987 and for weekly compensation.

Decision date: 21 June 2022 | Member: Michael Wright

Hendrix v Accuro Homecare Pty Ltd [2022] NSWPIC 315

Consequential urological condition as a result of lumbar spine surgery; evaluation of expert evidence; Hancock v East Coast Timber Products; Westpac Banking Corporation v Chauhan; Kooragang Cement Ltd v Bates; South Western Sydney Area Health Service v Edmonds; Nguyen v Cosmopolitan Homes; Held– award for the respondent with respect to the consequential condition.

Decision date: 22 June 2022 | Member: Catherine McDonald

Workers Compensation President’s Delegate Decisions

Lonergan v Woolworths Group Limited [2022] NSWPIC 316

Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker agreed to suffer 27% WPI; multiple failed surgeries; functional assessment of capacity conducted; workers treating doctors disagreed with assessed functional capacity; no approval from GP; consideration of all of the medical evidence; Held– that worker had no capacity, order made for weekly payments under section 38.

Decision date: 22 June 2022 | President’s Delegate: Parnel McAdam

Antoun v Pride Building & Refurbishment Pty Ltd [2022] NSWPIC 318

Work capacity dispute; whether the applicant is able to work in “suitable employment”; section 32A of the Workers Compensation Act 1987; whether the role of a project builder is suitable employment; ability to earn; required hours of work and duties of a project builder; Held– the role of a project builder is suitable employment; work capacity decision confirmed; applicant’s claim for compensation declined.

Decision date: 24 June 2022 | President’s Delegate: Kathryn Camp

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited v Smith [2022] NSWPICMP 246

The Claimant was involved in a motor accident on 31 May 2016 when she sustained various soft tissue injuries; Held- the Claimant was examined by a Medical Assessor who found nil impairment of the lumbar and cervical spines; the other issue body part was the right shoulder where the claimant displayed limited movement before various doctors; the nature of a rear end collision would only cause a jarring sensation through the steering wheel column and would not cause any pathology to the right shoulder; there was significant variation in range of shoulder movements measured by the Medical Assessor and the goniometer measurements could not be utilised; this inconsistency of shoulder movement was consistent with the surveillance which showed active right shoulder movement; the motor accident may have exacerbated the underlying pre-existing degenerative condition although it was medically doubtful that the underlying pathology would cause severe restriction of movement as displayed by the claimant; Panel was not prepared to accept that there was any restriction of movement caused by the motor accident; claimant assessed at 0% whole person impairment (WPI); original assessment revoked.

Decision date: 14 June 2022 | Panel Members: Principal Member John Harris, Medical Assessors Mohammed Assem and Clive Kenna | Injury module: Upper Limb, Lower Limb and Spine

Insurance Australia Limited t/as NRMA v Choi [2022] NSWPICMP 248

Review of Medical Assessment under Motor Accident Compensation Act 1999; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 23 August 2017; Held­­– original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the lumbar spine and left shoulder in total are not greater than 10% whole person impairment; finding that the cervical spine was not injured as a result of the motor accident.

Decision date: 14 June 2022 | Panel Members: Principal Member Josephine Bamber, Medical Assessors Shane Moloney and David McGrath | Injury module: Upper Limb and Spine

Workers Compensation Medical Appeal Panel Decisions

Formosa v Hunter Valley Buses Pty Limited [2022] NSWPICMP 252

Appeal from assessment of 8% whole person impairment (psychological); whether Medical Assessor erred in the assessment of Psychiatric Impairment Rating Scale (PIRS) scales; self-care and personal hygiene, social and recreational activities, or social functioning; Held– Medical Assessment Certificate confirmed.

Decision date: 21 May 2022 | Panel Members: Member R J Perrignon, Medical Assessors Nicholas Glozier and Patrick Morris | Body system: Psychological and Psychiatric

Duggan v Lake Maintenance Corporate Pty Limited [2022] NSWPICMP 253

Psychological injury; appeal under section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998; relying on a statement from worker; Petrovic v BC Serv No 14 Pty Ltd; Lukacevic v Coates Hire Operations Pty Ltd; Psychiatric Impairment Rating Scale (PIRS) categories; Jenkins v Ambulance Service; Ferguson v State of NSW; Parker v Select Civil Pty Ltd; Held– Medical Appeal Panel (MAP) confirmed.

Decision date: 16 June 2022 | Panel Members: Member Catherine McDonald, Medical Assessors Nicholas Glozier and Michael Hong | Body system: Psychological and Psychiatric

ZWF NSW Pty Ltd v Deguara [2022] NSWPICMP 254

Respondent referred for assessment of Whole Person Impairment (WPI) from injury to lumbar spine and scarring; respondent had suffered an earlier injury to lumbar and a subsequent injury to lumbar spine than the injury referred for assessment; respondent had surgery to his lumbar spine after each of the three injuries; Medical Assessor (MA) made a deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 for prior injury to lumbar spine but made no deduction with respect to WPI for scarring; appellant contended that MA erred by not making a deduction greater than 10% for earlier injury and by not apportioning any WPI to subsequent injury and by not making any deduction at all with respect to assessment of WPI from scarring; Appeal Panel considered MA was correct to make deduction of 10% only for prior injury and not to apportion any WPI to subsequent injury but erred by not making any deduction with respect to WPI from scarring for earlier injury; when deduction for scarring made, no difference in outcome; Held– Medical Assessment Certificateupheld.

Decision date: 17 June 2022 | Panel Members: Member Marshal Douglas, Medical Assessors Mark Burns and Drew Dixon | Body system: Spine and Scarring

State of New South Wales (NSW Health Pathology) v Siwan [2022] NSWPICMP 255

The appellant submitted that the Medical Assessor (MA) erred in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held– no evidence to support the appellant’s claim; Medical Appeal Panel (MAP) confirmed.

Decision date: 17 June 2022 | Panel Members: Member Deborah Moore, Medical Assessors Gregory McGroder and John Brian Stephenson | Body system: Upper Extremity and Spine.

Ranaweera v State of NSW (Sydney Local Health District) [2022] NSWPICMP 256

Injury to lumbar spine referred; appellant worker alleged error in classification of the appellant as falling within DRE class II submitting that radiculopathy should have been found to be present; the appellant alleged that the Medical Assessor had failed to take into account the results of electromyography (EMG) testing; Held– the Medical Assessor had appropriately ignored the results of EMG testing in accordance with paragraph 4.21 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) and no error was established; MAC confirmed.

Decision date: 20 June 2022 | Panel Members: Member William Dalley, Medical Assessors James Bodel, and Gregory McGroder | Body system: Spine

Football NSW Limited v Gonzalez [2022] NSWPICMP 257

Respondent worker sustained primary psychological injury deemed to have occurred on 1 May 2016; Held– appeal panel concluded that the Medical Assessor erred not providing sufficient reasons for in rating Mr Gonzales as class 3 for concentration, persistence and pace; worker re-examined; Medical Assessment Panel (MAP) revoked.

Decision date: 20 June 2022 | Panel Members: Member Carolyn Rimmer, Medical Assessors Douglas Andrews and Julian Parmegiani | Body system: Psychological and Psychiatric

Deosa Enterprises Pty Ltd v Morcos [2022] NSWPICMP 258

Respondent worker referred for assessment of permanent impairment resulting from injury to right and left knees, lumbar spine, right elbow and scarring; respondent suffered a subsequent non-work injury in regards to which commenced proceedings in District Court and particulars for which included injury to knees and lumbar spine; appellant submitted firstly, Medical Assessor (MA) misapplied criteria when assessing impairment due to restricted range of movement of right elbow; secondly, MA erred because he assessed impairment relating to right ankle by incorrect criteria and because he also included restricted range of movement of hindfoot when hindfoot had not been referred for assessment; thirdly, MA erred by failing to exclude from assessment any impairment due to subsequent injury; and lastly, MA erred by failing to make a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for pre-existing condition; Held– Appeal Panel rejected all submissions excepting last; Medical Assessment Certificate (MAC) revoked.

Decision date: 21 June 2022 | Panel Members: Member Marshal Douglas, Medical Assessors John Brian Stephenson and Margaret Gibson | Body system: Upper Extremity, Lower Extremity, Spine and Scarring (TEMSKI)

Yacoub v MJS Quality Constructions Pty Ltd [2022] NSWPICMP 260

Appellant worker alleged incorrect criteria and demonstrable error in respect of the assessment of psychiatric injury with respect to three of the Psychiatric Impairment Rating Scale (PIRS) areas of function; asserting that the evidence did not support the assessment in each case and further asserting that where there was uncertainty as to which class an area of function should be assigned the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) (Guidelines) required the medical assessor to assign the higher class in reliance on paragraph 1.9 of the Guidelines; Held– the Panel was satisfied that paragraph 1.9 of the Guidelines did not apply to the assessment of psychiatric injuries as there was only one method of assessment prescribed; the reasons provided by the Medical Assessor in respect of two of the areas of function did not support the class assigned; following re-examination of the worker the Panel came to the same conclusion as to the overall level of impairment although for different reasons.

Decision date: 22 June 2022 | Panel Members: Member William Dalley, Medical Assessor Julian Parmegiani and Michael Hong | Body system: Psychological and 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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