Legal Bulletin No. 71
This bulletin was issued on 29 July 2022
Issued 29 July 2022
Welcome to the seventy-first 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 Decisions
Justice Health & Forensic Mental Health Network v Nichols [2022] NSWSC 945 (18 July 2022)
ADMINISTRATIVE LAW – Insurance claim for personal injury; reduction in damages; pre-existing impairment; appeal against a Medical Assessment Certificate; jurisdictional error; dismissed.
Decision Date: 18 July 2022 | Before: Harrison AsJ
Insurance Australia Limited t/as NRMA Insurance v Rababeh (No 2) [2022] NSWSC 991 (25 July 2022)
COSTS – Suitors’ fund; whether cost fund certificate should be granted; certificate granted.
Decision Date: 25 July 2022 | Before: Harrison AsJ
Motor Accidents non-Presidential Member Decisions
Andriotis v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 380
Application for assessment of damages; insurer purported to issue a direction in accordance with section 6.26(3) of the Motor Accident Injuries Act 2017 (MAI Act); insurer submitted that the claimant had failed to provide all relevant particulars, as required by section 6.25 of the MAI Act; insurer argued that the claim was taken to have been withdrawn; section 6.26(3) of the MAI Act; claim referred to the Personal Injury Commission (Commission) more than 3 years after the accident; whether the claimant has provided a full and satisfactory explanation for the delay to the Commission as required by section 7.33 of the MAI Act; whether the Commission should grant leave for the claim to be referred for assessment; Held – as at the date the purported section 6.26 of the MAI Act direction 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 claimant had provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment; leave granted for the claimant to refer his claim to the Commission for assessment.
Decision date: 11 July 2022 | Member: Brett Williams
Gillespie v AAI Limited t/as GIO [2022] NSWPIC 383
Whether the insurer is entitled to reduce weekly payments of statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); claimant riding an e-bicycle in Byron Bay to the left of the insured vehicle who turned left into the path of the claimant; whether reasonable for the claimant to travel to the left of traffic; whether the insured gave sufficient notice of intention; consideration of expert traffic engineer evidence; claim for exceptional costs pursuant to section 8.10(4) of the MAI Act; Held – no contributory negligence; claimant travelling reasonably and lawfully to the left of traffic; insured failed to give any or any reasonable intention to turn left; regulated legal costs awarded.
Decision date: 15 July 2022 | Member: Elizabeth Medland
Jang v QBE Insurance (Australia) Limited [2022] NSWPIC 384
Miscellaneous claims assessment; claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (MAI Act); whether for the purposes of section 3.1 of the MAI Act, the injury to the claimant resulted from a collision and therefore a ‘motor accident’ within the meaning of section 1.4 of the MAI Act; Held – there was no collision and therefore the injury to the claimant did not result from a motor accident.
Decision date: 18 July 2022 | Member: Maurice Castagnet
Kim v QBE Insurance (Australia) Limited [2022] NSWPIC 385
Miscellaneous claims assessment; claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (MAI Act); whether for the purposes of section 3.1 of the MAI Act, the injury to the claimant resulted from a collision and therefore a ‘motor accident’ within the meaning of section 1.4 of the MAI Act; Held – there was no collision and therefore the injury to the claimant did not result from a motor accident.
Decision date: 18 July 2022 | Member: Maurice Castagnet
AAI Limited t/as GIO v Wilson [2022] NSWPIC 386
Settlement approval; 73-year-old male; injuries soft tissue cervical, neuropathic pain thoracic region, sternal and rib pain, bruising recovered; 3% whole person impairment no entitlement to non-economic loss; past and future economic loss; retired; buffer for impairment to intermittent earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 18 July 2022 | Member: Shana Radnan
Horsley v QBE Insurance (Australia) Limited [2022] NSWPIC 387
Assessment of non-economic loss; factors to consider following severe traumatic injuries to right knee and leg, including seven operations in assessment of non-economic loss; assessment of economic losses past not contentious, future economic loss; career path and residual earning capacity; remote location; retraining impact on capacity for work; legal costs claimed; Held - the insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; entitled to payment of legal costs.
Decision date: 19 July 2022 | Member: Shana Radnan
AAI Limited t/as AAMI v Stodolka [2022] NSWPIC 397
Approval of damages settlement under the Motor Accident Injuries Act 2017 (MAI Act); claimant 75- years-old at date of accident; 78-years-old at date of approval; claimant suffered fractures of the left surgical neck of her humerus, pubic rami fractures (left superior and inferior), and a left sacral fracture; no claim for economic loss; only head of damage claimed non-economic loss; proposed settlement $200,000; Held – proposed settlement approved; proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were it to be assessed by the Personal Injury Commission; requirements of section 6.23 of the MAI Act and Motor Accident Guidelines satisfied.
Decision date: 20 July 2022 | Member: Brett Williams
Mincarini v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 398
Late referral of damages claim to the Personal Injury Commission (Commission); section 7.33 of the Motor Accident Injuries Act 2017; whether the claimant had provided a full and satisfactory explanation for the delay; claimant relied on his lawyer’s advice; no prior claims experience; English his third language; claimant born and raised in Italy; claimant suffered significant injuries in the accident; claimant not advised about requirement to refer his claim to the Commission within three years of the accident; Held - the claimant had provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission; leave granted to refer the claim for assessment.
Decision date: 20 July 2022 | Member: Brett Williams
Rushton v QBE Insurance (Australia) Limited [2022] NSWPIC 399
Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; where the referral was late by three months; whether the claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of “full and satisfactory explanation” in the context of section 7.33 of the MAI Act under Part 7 of the MAI Act; whether the claimant has used her best endeavours in accordance with section 7.32(3) of the MAI Act to settle the claim before referring it for assessment; no practical utility in pursuing settlement of the claim until medical disputes are resolved; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the MAI Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list.
Decision date: 20 July 2022 | Member: Maurice Castagnet
Workers Compensation non-Presidential Member Decisions
Siladi v Healthscope Operations Pty Ltd [2022] NSWPIC 381
Claim for incurred and proposed treatment with Cannabidiol (CBD) Oil pursuant to section 60 of the Workers Compensation Act 1987; conflicting medical opinion as to whether CBD Oil is reasonably necessary treatment; Held – CBD Oil is reasonably necessary treatment as a result of workplace injury to the agreed right knee and secondary psychological condition; Diab v NRMA Ltd applied.
Decision date: 14 July 2022 | Principal Member: Josephine Bamber
Claim for weekly compensation and incurred section 60 of the Workers Compensation Act 1987 (1987 Act) expenses for injury to left leg; whether applicant a worker/deemed worker at time of injury; whether in the course of employment; extent of incapacity resulting from injury; applicant employed on a casual basis as a truck driver during harvest period; injury occurred whilst taking the truck to the mechanic after harvest had ended; Held – applicant remained a “worker”; applicant was in the course of employment at time of injury; Henderson v Commissioner of Railways (WA) and Comcare v PVYW cited; awards for the applicant for weekly compensation and incurred section 60 of the 1987 Act expenses.
Decision date: 15 July 2022 | Member: Rachel Homan
Abedini v Airway Mechanical Pty Limited [2022] NSWPIC 388
The applicant claims costs payable under section 60 of the Workers Compensation Act 1987 (1987 Act) for proposed surgical treatment in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5; the respondent disputes the applicant’s claim on the basis that the proposed surgical treatment is not reasonably necessary treatment for the injury the applicant has sustained to his low back in the course of his employment with the respondent; Held – the surgical treatment in the nature of anterior lumbar interbody fusion to the L4-5 and posterior spinal fusion L4-5 is reasonably necessary treatment for the injury the applicant sustained to his low back in the course of his employment with the respondent; the respondent is to pay the costs of the proposed treatment in accordance with section 60 of the 1987Act.
Decision date: 19 July 2022 | Member: Jacqueline Snell
Devi v Workers Compensation Nominal Insurer (iCare) & others [2022] NSWPIC 389
Worker claims compensation from uninsured employer and the Nominal Insurer; employer alleges that worker had ceased to be employed by her three months before the date of injury; employer unrepresented at the arbitration hearing; factual issue of employment resolved by acceptance of the evidence of the worker and her witnesses in preference to the respondent and her witnesses on the employment issue; conversely, worker not accepted as to the nature of her injuries; Held – award for the worker for weekly payments and medical expenses against the first respondent; Nominal Insurer to pay the award and be reimbursed by the first respondent.
Decision date: 19 July 2022 | Member: Paul Sweeney
Henc v Michalis Group Pty Ltd [2022] NSWPIC 390
Claim for proposed left hip replacement surgery and associated treatment pursuant to section 60 of the Workers Compensation Act 1987; conflicting medical opinion as to whether the surgery is reasonably necessary treatment given young age of applicant and adverse anaesthetic reaction experienced during prior surgery; Held – left hip replacement surgery is reasonably necessary treatment as a result of the agreed workplace injury; opinion and recommendation of treating orthopaedic surgeon accepted; Diab v NRMA Ltd applied.
Decision date: 19 July 2022 | Principal Member: Josephine Bamber
White v Marist Youth Care Limited [2022] NSWPIC 391
Applicant alleges injuries to lower back, neck, both shoulders and secondary psychological condition; respondent seeks adverse credit findings; Held – applicant complained of lower back pain to general practitioner but no sufficient complaint regarding neck or shoulders; held on the facts applicant entitled to an award pursuant to section 37 of the Workers Compensation Act 1987 reduced because of applicant’s capacity to perform some suitable employment; award for the respondent in respect of allegations of injury to the neck and shoulders.
Decision date: 19 July 2022 | Member: Philip Young
Bui v HyView Fabrications Pty Ltd [2022] NSWPIC 392
Section 60 of the Workers Compensation Act 1987 expenses for cervical spine surgery; reasonably necessary; Rose v Health Commission and Diab v NRMA considered; requirements of medical evidence; South Western Sydney Area Health Service v Edmonds and OneSteel Reinforcing Pty Ltd v Sutton considered; Held – award for the respondent.
Decision date: 19 July 2022 | Member: Catherine McDonald
Hernandez v State Rail Authority of NSW [2022] NSWPIC 393
Matter remitted for determination by a Member following decision of Deputy President (DP) Wood in Hernandez v State Rail Authority if NSW; in issue was whether the applicant’s requirement for treatment of a renal condition and a cardiac condition was consequent upon undisputed injuries that the applicant sustained to his back in the employ of the first respondent over the period from 18 December 1972 to 18 December 1987 and in the employ of the second respondent on 27 April 1992; the applicant also claimed that treatment for hypertension the onset of which pre-dated the 1987 back injury and subsequent surgery therefor, and in respect of which Wood DP had entered an award in favour of the respondents in response to the applicant’s claim that the renal and cardiac condition resulted from his hypertension, materially contributed to the renal and cardiac condition; the applicant relied on a detailed examination of the clinical records and reports of treating specialists in support of his case; Held –the applicant could not argue that medication for his hypertension had contributed to the renal and cardiac conditions; this matter had been dealt with by the Personal Injury Commission, by the Member at first instance, and in Wood DP’s determination affirming that decision; finding that the applicant had not produced evidence to demonstrate, on the balance of probabilities, that as a result of ingestion of medication for his undisputed back injuries, he suffered a renal condition or a cardiac condition consequent upon those back injuries; held that the applicant had not established that the applicant’s renal condition and his cardiac condition resulted from injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on18 December 1973, 16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent; award for the respondents in respect of the applicant’s claim for expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for treatment of the applicant’s renal condition and cardiac condition; applicant granted liberty to apply if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to section 60 of the 1987 Actin respect of any claim that the applicant may have for expenses for treatment of aggravation of a pre-existing condition of hypertension which became labile in 2001 and 2005.
Decision date: 20 July 2022 | Member: Brett Batchelor
Kovacs v HammondCare [2022] NSWPIC 394
Respondent argues surgery should only be undertaken after multidisciplinary pain management program is carried out; Held – the proposed surgery is reasonably necessary as a result of the injury at issue; it is not necessary for proposed treatment to be the only reasonably necessary option available; Diab v NRMA Limited cited with approval; the proposed surgery will have the effect of remedying the defect in the applicant’s lumbar spine, as opposed to the pain management program; even the respondent’s independent medical examination stated the surgery would be appropriate after the pain management program had been trialled; as such, there is no issue as toe the efficacy of the proposed treatment, which is plainly a well-recognised and long-established treatment modality for injuries of the kin suffered by the applicant; Rose v Health Commission (NSW) and Diab v NRMA Limited applied; respondent ordered to pay the costs of and incidental to the proposed surgery.
Decision date: 20 July 2022 | Member: Cameron Burge
Pitty v Woolstar Pty Ltd [2022] NSWPIC 395
Claim for weekly benefits compensation for permanent impairment compensation; applicant had accepted bilateral foot injury and injury to neck and right shoulder; whether the applicant has no capacity to work and had no capacity to work since 7 April 2021; Held – applicant sustained bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and neck and right shoulder injury with a date of injury of 20 November 2018; the applicant’s employment was the main contributing factor to his injury; the applicant has no capacity to work since 7 April 2021; the respondent pay the applicant $811.20 per week from 7 April 2021 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987.
Decision date: 20 July 2022 | Member: Karen Garner
Wilson v State of New South Wales & others [2022] NSWPIC 396
Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act); Held - the deceased worker died from injury sustained in the course of his employment; compensation payable by the employer in accordance with section 25(1)(a) of the 1987 Act; lump sum to be apportioned between dependents.
Decision date: 20 July 2022 | Principal Member: Josephine Bamber
Motor Accident Medical Review Panel Decisions
Foroosh v QBE Insurance (Australia) Limited [2022] NSWPICMP 276
Medical Review Panel; permanent impairment; Motor Accident Injuries Act 2017; cervical spine; lumbar spine; left shoulder; right shoulder; whole person impairment; consistency of presentation; osteoarthritis; causation of injury; contemporaneous complaint; rear end collision; no orthopaedic or biomechanical explanation of injury to shoulders; the claimant suffered injury in a rear end collision on 24 October 2019; the dispute related to the assessment of permanent impairment under the Motor Accident Injuries Act 2017; assessment of injury to cervical spine; lumbar spine and both shoulders; inconsistency demonstrated on examination; question of causation of shoulder injuries; Held – cervical spine soft tissue injury; assessed as DRE cervicothoracic category 1 resulting in 0% whole person impairment; lumbar spine soft tissue injury; assessed as DRE lumbosacral category 1 resulting in 0% whole person impairment; Panel not satisfied shoulder injuries causally related to accident; lack of complaint of shoulder injury; variable shoulder movements; no orthopaedic or biomechanical explanation to explain injury to shoulders in rear end collision as per QBE Insurance (Australia) Ltd v Shah.
Decision date: 4 July 2022 | Panel Members: Member Susan McTegg, Medical Assessors Rhys Gray and Margaret Gibson | Injury module: Spine and upper limb
Vuong v Allianz Australia Insurance Limited [2022] NSWPICMP 277
Review of medical assessment under Motor Accident Injuries Act 2017; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 29 August 2018; Held- Original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the cervical spine, lumbar spine and right shoulder are not greater than 10% whole person impairment; finding that the right hip was not injured as a result of the motor accident and that the accident did not contribute to the left shoulder being injured because of overuse.
Decision date: 6 July 2022 | Panel Members: Principal Member Josephine Bamber, Medical Assessors Margaret Gibson and Shane Maloney | Injury module: Spine, lower limb and upper limb
Insurance Australia Limited t/as NRMA Insurance v Baldock [2022] NSWPICMP 278
Motor Accident Injuries Act 2017 (MAI Act);medical assessment of whole person impairment (WPI) and claimant’s review under section 7.26 of the MAI Act; claimant (now aged 73) riding three wheeled motorcycle involved in intersection collision; compound fracture of right tibial plateau and subsequent infection and long-term rehabilitation; claimant later developed pain and restriction of movement in right ankle and scarring of right hip (due to bone graft); Original Assessor found 2% WPI for restricted range of motion (ROM) in right knee; Held – claimant had WPI of greater than 10% due to restricted ROM in ankle and knee and development of arthritis in the knee joint plus scarring to knee and hip.
Decision date: 8 July 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors Geoffrey Stubbs and Shane Maloney | Injury module: Spine and lower limb
Dordevic v AAI Limited trading as GIO [2022] NSWPICMP 279
Claimant aged 46 years and involved in two accidents; car versus bicycle on 19 February 2019 and front seat passenger in car on 5 February 2020; same CTP insurer on risk for both accidents; first accident causing injury to cervical spine with disc protrusion and an annular tear amongst other injuries; Panel satisfied that disc protrusion and annular tear not age-related; no issue about decision of Medical Assessor that the claimant suffered injuries to her left shoulder, left hand, lower back, right hip and right leg and that all of these are minor injuries and this decision adopted by the Panel; review undertaken only to whether the injury to the claimant’s cervical spine was not a minor injury; scan of cervical spine of 4 August 2020 and claimant’s submissions not referred to by Medical Assessor; scan confirmed disc protrusion and an annular fissure; Held – Medical Review Panel concluded that the claimant suffered a disc protrusion and an annular tear as a result of and causally related to the accident of 19 February 2019.
Decision date: 8 July 2022 | Panel Members: Member Alexander Bolton, Medical Assessors Drew Dixon and Neil Berry | Injury module: Spine
Al Mahmoud v AAI Ltd [2022] NSWPICMP 280
The claimant was involved in a motor accident on 18 June 2017 when he was in his vehicle stationary in a carpark when the insured vehicle was reversing and collided with the back of the claimant’s vehicle; Held – the findings of the previous Medical Assessors and/or Review Panel are not, contrary to the claimant’s submission, determinative of causation in this dispute; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant failed to establish that any of the treatment was causatively related to the motor accident based the evaluation of the records of pre-existing symptoms, the lack of initial treatment following the accident, histories recorded by the doctors in the months following the motor accident, the minor motor accident and the likelihood that the natural progression of degenerative changes which is the likely explanation for the subsequent deterioration in symptoms in the latter part of 2017; original assessment confirmed.
Decision date: 8 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Thomas Rosenthal and Alan Home
Samhon v QBE Insurance (Australia) Limited [2022] NSWPICMP 281
Medical Review Panel; Motor Accident Injuries Act 2017; minor injury; cervical spine; lumbar spine; soft tissue injury; radiculopathy; the claimant suffered injury in the motor accident; soft tissue injury to the cervical spine and lumbar spine; Held – no evidence of radiculopathy and radiological imaging did not identify any nerve root impingement; clause 5.8 of the Motor Accident Guidelines; soft tissue injury to the cervical and lumbar spine; minor injury finding confirmed.
Decision date: 8 July 2022 | Panel Members: Member Susan McTegg, Medical Assessors Mohammed Assem and Shane Moloney | Injury module: Spine
Medical Review Panel; whether the psychological injury caused by the accident is a minor injury as defined in section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Injuries Regulation 2017; where claimant’s case is that she suffered post-traumatic stress disorder; Medical Assessor (MA) diagnosed Adjustment Disorder with Mixed Disturbance of Mood, a minor injury; MA did not have the benefit of an interpreter or transcribed General Practitioner notes and the treating psychologists records; the insurer submitted that the MA’s findings were correct; Held - the claimant meets DSM-5 criteria for Persistent Depressive Disorder with Anxious Distress; the diagnosed psychological injury was not a minor injury for the purposes of the MAI Act; the MA’s certificate revoked and a new certificate issued.
Decision date: 11 July 2022 | Panel Members: Member Brett Williams, Medical Assessors Michael Li Ying Hong and Wayne Mason | Injury module: Psychiatric
Frnsow v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 283
Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury and claimant’s review under section 7.26 of the MAI Act; claimant involved in rear end collision; claimant alleged injuries to both shoulders, her neck, thoracic spine and lumbar spine arguing that a small annular disc tear in the lumbar spine (identified in radiology after the accident) was caused by the accident and that a disc tear was a non-minor injury; Held – the claimant was examined by two medical assessors and identified thoracolumbar pain not lumbosacral pain which did not correspond to the disc tear; the disc tear was not caused by the accident; the claimant had no radiculopathy and soft tissue injuries only within the meaning of section 1.6 of the MAI Act.
Decision date: 12 July 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors Rhys Gray and Trudy Rebbeck | Injury module: Spine and upper limb
AAI Ltd t/as AAMI v Shamsirad [2022] NSWPICMP 284
The claimant suffered injury in a motor accident on 7 February 2020 when his vehicle was hit at the back by the insured vehicle; the issue in dispute was whether he suffered a non-minor injury; Held – radiculopathy can occur at any time relying on David v Allianz Australia Insurance Ltd; an analysis of the medical evidence showed the claimant had three signs of radiculopathy in the C6 dermatome noting the treating reports were business records; ASIC v Rich and Hancock v East Coast Timber Products Pty Ltd referred to; findings made that the tear of the right supraspinatus was probably extended from the motor accident; assessment revoked and findings made that the claimant suffered non-minor injuries.
Decision date: 12 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Margaret Gibson and Clive Kenna | Injury module: Spine and upper limb
AAI Limited t/as AAMI v Chami [2022] NSWPICMP 285
Motor Accidents Compensation Act 1999 (MAC Act);medical assessment of whole person impairment (WPI) and insurer’s application for review under section 63 of the MAC Act; claimant experienced stress incontinence after accident, assessed as having 10% WPI due to neurological cause of incontinence; claimant had complicated pre- and post-accident history of multiple conditions including urinary problems and muskulo-skeletal problems; Held – Panel not satisfied there was a physical cause (neurological, gynaecological or urological) related to the accident; incontinence confirmed and present but not due to accident and therefore no impairment.
Decision date: 13 July 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors John Carter and Michael Rochford | Injury module: Urinary and reproductive
Ellis v IAG Limited trading as NRMA [2022] NSWPICMP 286
The claimant was involved in a motor vehicle accident in March 2015 with the orthopaedic surgeon recommending a left total hip replacement in August 2019; the medical dispute related to whether a left total hip replacement was reasonable and necessary and whether it was an injury caused by the motor vehicle accident; Held – claimant’s concession that there was no left hip pain experienced after the accident until over three years subsequent to the accident nor any treatment sought for the left hip with the Panel noting x-rays taken nine days post-accident revealing mild to moderate osteoarthritic/degenerative changes in the left hip were long standing and progressive; the Panel rejected the theory that as there was no prior problems in the left hip and the claimant developed arthritic changes in that hip with trochanteric bursitis then such related to an injury caused by the accident; none of those assessing the claimant, medico-legal or treating doctor who assessed the claimant’s injury observed the mild to moderate degenerative changes in the claimant’s left hip that were longstanding and present in an x-ray taken nine days after the accident; the Panel did not accept that the accident caused an injury to the left hip by either any direct trauma or alternatively accelerated the rate of progression of the pre-existing osteoarthritic and degenerative changes in the left hip.
Decision date: 13 July 2022 | Panel Members: Member Terrence Broomfield, Medical Assessors Rhys Gray and Margaret Gibson
Reed v Allianz Australia Insurance Ltd [2022] NSWPICMP 287
The claimant suffered injury in a motor accident on 28 June 2018; the claimant had a history of back pain and prior discectomy but was asymptomatic at the time of the motor accident; post-accident the claimant underwent spinal fusion and developed a pulmonary embolism; the issues in dispute where whether the claimant suffered a non-minor injury and the extend of any permanent impairment; Held – the motor accident aggravated pre-existing arthritis and made the lumbar spine asymptomatic leading to spinal surgery; the pulmonary embolism was caused by the surgery; the contextual meaning of the meaning of minor injury in the Motor Accident Injuries Act 2017 is directed to what is caused by the motor accident; the surgery and the resulting deep vein thrombosis were caused by the motor accident; the pulmonary embolism will cause some damage to the arteries within the lungs, the extent to which depends on how promptly the treatment occurs; that injury is to an organ (the lung) and is not a minor injury as it is not “an injury to tissue that connects, supports or surrounds other structures or organs of the body”; impairment assessed at 20% with a deduction of 5% for the pre-accident discectomy.
Decision date: 14 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Wing Chan and Christopher Grainge | Injury module: Cardiovascular, spine and upper limb
Keverian v Insurance Australia Ltd [2022] NSWPICMP 294
The claimant purportedly suffered injury in a motor accident on 24 August 2015; the present application related to numerous past and future treatment and care disputes; a Medical Assessor previously assessed the claimant at 8% permanent impairment resulting from the motor accident; the Medical Assessment in the present dispute was that none of the treatment or care disputes resulted from the motor accident; Held – the previous findings on impairment were not binding on this Panel on the issue of causation; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant had pre-accident morbid obesity, diabetes and a degenerative spine with debilitating lower back symptoms into the legs; he did not seek any medical treatment until four months after the motor accident; the scan evidence did not show any traumatic injury; claimant’s clinical presentation to Medical Assessors and recollection of prior condition was inconsistent; findings made that claimant had not established injury; none of the treatment and care related to the motor accident; Medical Assessment confirmed.
Decision date: 19 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Leslie Barnsley and Rhys Gray
Brown v QBE Insurance (Australia) Ltd [2022] NSWPICMP 295
The claimant suffered injury in a motor accident on 30 May 2018 when his motor vehicle was side swiped by the insured vehicle causing his vehicle to tip on its side; the claimant suffered a fracture at T3 and other injuries where impairment was disputed; Held – claimant reassessed at 18% impairment; no substantive legal principles on reassessment; original assessment revoked.
Decision date: 20 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Geoffrey Stubbs and Margaret Gibson | Injury module: Lower limb, upper limb and spine
AAI Limited t/as GIO v Alshenawa [2022] NSWPICMP 296
Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury and claimant’s review under section 7.26 of the MAI Act; intersection collision, claimant says he sustained neck and lower back injuries, left and right shoulder injuries; radiology indicated multi-level disc bulges in cervical and lumbar spine; Held – all injuries minor injuries; no apparent issue with assessment of shoulder injuries being minor injury; lower back injury was aggravation of pre-existing lower back condition sustained overseas in a work accident and investigated four years before accident, no radiculopathy present and no disc bulge caused by accident; neck injury, soft tissue injury, no evidence of two of the five signs of radiculopathy at any stage since the accident, disc bulge and annular tear not caused by accident.
Decision date: 20 July 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors David McGrath and Shane Maloney | Injury module: Spine and upper limb
Arhawi v QBE Insurance (Australia) Ltd[2022] NSWPICMP 297
The claimant suffered injury in a motor accident on 20 March 2020 when travelling in the front passenger seat on a roundabout when the insured vehicle entered from the left colliding with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017; the left shoulder ultrasound refers to an intramuscular haematoma; that pathology, taken some three months after the motor accident, is suggestive of acute injury because it shows recent bleeding and supportive of a recent tear consistent with the timing of the motor accident; the magnetic resonance imaging (MRI) scan shows a full thickness tear of the supraspinatus tendon; that pathology is grossly inconsistent with the claimant being able to work as a cleaner; whilst this type of pathology is consistent with being caused by cleaning work, the nature of the type of pathology is inconsistent with being able to undertake such work; the nature of the motor accident is also consistent with a tear; the claimant had the seat belt over the left shoulder with the force of the motor accident directed into the passenger side, albeit rear door, of the vehicle; that type of impact was sufficient to place stress on the shoulder joint and capable of causing or aggravating a tear in the supraspinatus; further, the MRI scan showed degenerative changes within the shoulder joint; it is otherwise medically plausible that trauma is more likely to tear a degenerative joint; Held – original assessment revoked; finding made that claimant sustained non-minor injury to left shoulder.
Decision date: 20 July 2022 | Panel Members: Principal Member John Harris, Medical Assessors Mohammed Assem and Drew Dixon | Injury module: Upper limb and spine
Workers Compensation Medical Appeal Panel Decisions
Secretary, Department of Communities and Justice v Lewandowski [2022] NSWPICMP 288
Employer appeals against determination of whole person impairment for an accepted work injury alleging error in the failure of the Medical Assessor (MA) to make a deduction for prior injury or pre-existing condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); alleged that a deduction should have been made for a prior injury in the employ of the respondent which was not part of the medical dispute referred for assessment and in respect of non-work related condition resulting from a robbery in a restaurant; Held – there was no evidence that a prior employment injury materially contributed to the worker’s post-traumatic stress disorder; conversely, the MA erred in failing to consider or give reasons why he did not make a deduction in respect of the condition resulting from the armed robbery; section 323 of the 1998 Act reassessed by the Panel; Marks v Secretary, Department of Communities and Justice considered; determination of MA reduced by 1/10th to reflect the contribution of the armed robbery to the respondent’s impairment.
Decision date: 15 July 2022 | Panel Members: Member Paul Sweeney, Medical Assessors Patrick Morris and Michael Hong | Body system: Psychiatric/psychological
Qantas Airways Limited v Bonser [2022] NSWPICMP 289
The appellant appealed on the basis that the MA erred in the deduction he made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998;Panel agreed; the evidence disclosed significant pre-existing conditions which warranted a much greater deduction than 10%; Held – Medical Assessment Certificate revoked.
Decision date: 15 July 2022 | Panel Members: Member Deborah Moore, Medical Assessors Roger Pillemer and Drew Dixon | Body system: Cervical spine and right upper extremity
Rily v Tandem Towing Pty Ltd [2022] NSWPICMP 290
Appeal against 8% whole person impairment (WPI) assessment for psychological claim; whether Medical Assessor (MA) made demonstrable errors in class evaluations for social and recreational activities, concentration, persistence and pace, and employability; unanimous finding of class 3 by experts on both sides of the record; MA found class 2 for each; Held – MA function not arbitral or adjudicative; Western Sydney v Chan referred to;Wingfoot Australia Pty Ltd v Kocak cited; obligation to show more than mere disagreement on which reasonable minds might differ; Ferguson v State of New South Wales and Jenkins v Ambulance Service of NSW referred to; class 2 confirmed for each category except employability; appellant back at work full time but as an allocator of work and not previous work as a truck driver, which his disorder prevented him from doing; class raised to 3; Medical Assessment Certificate revoked, 9% WPI substituted.
Decision date: 15 July 2022 | Panel Members: Member John Wynyard, Medical Assessors Julian Parmegiani and Michael Hong | Body system: Psychiatric/psychological
Zaya v A & W Hollier Wholesale Distributors Pty Ltd [2022] NSWPICMP 291
Appeal by the applicant worker against assessment of impairment in respect of injury to the cervical spine and bilateral shoulders; with respect to the cervical spine, the appellant alleged that the Medical Assessor (MA), in assessing the appellant as within DRE I, had made no findings with respect to dysmetria whereas the appellant’s independent medical expert had found dysmetria and consequently assessed the appellant as DRE Class II; Held – the MA had noted a finding of symmetrical survival motion constituting a finding of no dysmetria; no error or adoption of incorrect criteria was established in respect of the cervical spine; with respect to the shoulders the appellant submitted that he should have been assessed by reference to range of motion and that the MA had been unduly influenced by the medical reports in evidence not to accept range of motion as reliable; the MA had conducted his own examination and had determined that assessment of range of motion was unreliable and had accordingly assessed the appellant by reference to an analogous condition; no error or adoption of incorrect criteria was established in respect of the upper extremities and the Medical Assessment Certificate was confirmed.
Decision date: 15 July 2022 | Panel Members: Member William Dalley, Medical Assessors James Bodel and Mark Burns | Body system: Right upper extremity, left upper extremity and cervical spine
MSF Painters Pty Ltd v Swmaa [2022] NSWPICMP 292
Assessment of whole person impairment (WPI) from injuries to right ankle, left knee and lumbar spine and from scarring; appellant submitted Medical Assessor (MA) incorrectly applied criteria with respect to assessment of WPI relating to left knee, erred by failing to explain assessment of WPI relating to right ankle, and erred by failing to make a deduction for pre-existing degenerative disease in left knee and lumbar spine; Held – Appeal Panel found MA had erred by not making a deduction and by not adequately explaining reasons for right ankle assessment; respondent re-examined so that Appeal Panel could correct error with respect to right ankle assessment; Medical Assessment Certificate revoked.
Decision date: 18 July 2022 | Panel Members: Member Marshal Douglas, Medical Assessors Drew Dixon and Tommasino Mastroianni | Body system: Right lower extremity, left lower extremity, lumbar spine and scarring
ISS Property Services Pty Ltd v Ayoubi [2022] NSWPICMP 293
Appeal against assessment of 35% whole person impairment (WPI) for injuries to the fingers and thumb, right wrist, right elbow and right shoulder caused when a sash window fell on the worker’s hand; whether Medical Assessor (MA) failed to apply section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; whether MA had failed to consider surveillance material; whether the MA had failed to adequately consider evidence of inconsistent presentation; Held – there was no evidence or opinion upon which to base a deduction pursuant to section 323 of the 1998 Act; the MA did not consider the three surveillance reports as he was an experienced clinician who would have commented on it had he been aware of it; in any event the MA made a demonstrable error in not referring to it in his reasons; re-examination by one Panel MA with the other observing; Panel found no evidence of organic basis; worker’s presentation to MA and to Panel inconsistent with material in the surveillance reports and early clinical notes; surveillance descriptions of worker’s movements and photographs thereof showed normal use of injured right extremity; worker’s injuries at best psychologically based; no residual orthopaedic impairment; Medical Assessment Certificate revoked.
Decision date: 19 July 2022 | Panel Members: Member John Wynyard, Medical Assessors Roger Pillemer and James Bodel | Body system: Right upper extremity
AATSCO Pty Ltd v Summerfield [2022] NSWPICMP 298
Industrial deafness; employer’s appeal alleging error by the Medical Assessor (MA) in finding that worker’s noisy employment as a crane operator in Queensland was connected to the state of New South Wales (NSW) and in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the effect of that work; Held – the MA erred in finding that the work in Queensland was connected to NSW; on reassessment of Queensland employment, less than 12 months in total exposure of 40 years, Panel determines that it is appropriate to make a section 323 of the 1998 Act deduction; Medical Assessment Certificate confirmed.
Decision date: 20 July 2022 | Panel Members: Member Paul Sweeney, Medical Assessors Joseph Scoppa and Paul Niall | Body system: Hearing
Canterbury Bankstown Council v Percy [2022] NSWPICMP 299
Employer’s appeal alleging error in including an ectropion of the right eyelid in an assessment of the “Skin” and “Scarring-TEMSKI”; it argued that the ectropion was not part of the medical dispute referred for assessment as it was not assessable under Chapter 14 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 and that the Medical Assessor had not given any sufficient reasons why the ectropion resulted from sun damage; Skates v Hills industries Ltd considered and applied; Held – that the ectropion was part of the “medical dispute” between the parties and there was sufficient evidence in the Medical Assessment Certificate (MAC) to establish causal nexus with sun damage; MAC confirmed.
Decision date: 20 July 2022 | Panel Members: Member Paul Sweeney, Medical Assessors Paul Curtin and Michael McGlynn| Body system: Skin and scarring (TEMSKI)
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