Legal Bulletin No. 72

Issued 5 August 2022

Welcome to the seventy-second 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

Mifsud v Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd & Ors [2022] NSWSC 1010 (29 July 2022)

ADMINISTRATIVE LAW; jurisdictional error; workers compensation; medical assessment; appeal to medical panel; judicial review of decision of appeal panel; where appeal panel confirmed medical assessment certificate determining worker’s whole person impairment at 13%; whether the appeal panel asked itself the wrong question by confining itself to the precise grammatical meaning of the terms of the referral.

Decision date: 29 July 2022 | Before: Campbell J

Motor Accidents non-Presidential Member Decisions

Zheree v CIC Allianz Insurance Limited [2022] NSWPIC 400

Motor Accident Injuries Act 2017; damages claim: catastrophic injuries and psychiatric consequences; teenager at time of motor accident; pedestrian hit by bus on footpath; Held – assessment of non-economic loss; past economic loss; future loss of earning capacity; large buffer ($500,000.00).

Decision date: 26 May 2022| Member: Gary Patterson

Wright v AAI Limited t/as GIO [2022] NSWPIC 401

Motor Accident Injuries Act 2017; section 6.13(2); statutory weekly payments; statutory interpretation; no discretion;  the claimant was injured in a motor cycle accident on 26 January 2022; claim for statutory benefits made on 25 February 2022; claim not made within 28 days of date of accident; no entitlement to statutory weekly payments before 25 February 2022; claimant asked for discretion to be exercised in his favour; Held – no room for statutory interpretation; no discretion; if claim not made within 28 days of accident no entitlement to weekly statutory payments before claim made; decision of insurer upheld.

Decision date: 1 July 2022| Member: Susan McTegg

Jia v QBE Insurance (Australia) Limited [2022] NSWPIC 404

Settlement approval; 65-year-old male; grazing injuries to right knee wrist and elbow resolved; ongoing right shoulder rotator-tear; no surgery; 7% whole person impairment no entitlement to non-economic loss; future economic loss; 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: 22 July 2022| Member: Shana Radnan

Lin v AAI Limited t/as GIO [2022] NSWPIC 408

Miscellaneous assessment matter; whether motor accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; accident occurred at night; mixed commercial, residential, industrial area; claimant wearing dark clothing; claimant ran across road and tripped prior to the collision; driver travelling at speed limit; application of Civil Liability Act 2002; Marien v Gardiner applied; Held — accident caused wholly by the fault of the claimant; claimant failed to exercise reasonable care for her own safety; accident not caused by the fault of the driver; had finding of fault on the part of the driver been made finding would have been made that the accident was caused mostly by the fault of the claimant.

Decision date: 26 July 2022| Member: Brett Williams

Insurance Australia Limited t/as NRMA Insurance v Cox [2022] NSWPIC 415

Motor Accident Injuries Act 2017 (2017 Act); damages claim; approval of settlement under section 6.23 of the 2017 Act; claimant self-represented; claimant sustained binaural hearing loss and vertigo when he was involved in a collision at an intersection and his airbags (including side airbags) deployed; insurer wholly admitted liability and made offer of settlement of $80,000 which the claimant accepted; Member did not approve at first teleconference and further offer of settlement was made by the insurer of $120,000 which the claimant also accepted; claimant had vertigo after the accident which had settled; claimant’s hearing loss treated with hearing aids which amplified all noises and interfered with his ability to socialise and enjoy life; insurer conceded entitlement to non-economic loss; claimant 82 with no other heads of damage claimed; Held — settlement approved; no matter of principle.

Decision date: 28 July 2022| Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Gimis v Tweed Shire Council [2022] NSWPIC 403

Consent Awards given for the respondent regarding “injury” in proceedings concerning weekly benefits; the applicant seeks to bring lump sum compensation proceedings concerning those same body parts where awards were given for respondent; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine distinguished on facts; Held — claim dismissed.

Decision date: 21 July 2022| Member: Elizabeth Beilby

Sehion v Maximum Energy [2022] NSWPIC 405

Claim for weekly compensation at a higher rate than that being paid; calculation of pre-injury average weekly earnings (PIAWE) for a short-term worker; Held— orders made for payment at a higher PIAWE rate.

Decision date: 22 July 2022| Member: Rachel Homan

Prysmian Australia Pty Limited v Fan [2022] NSWPIC 406

Lump sum death benefit; No other persons identified as dependant except the respondent.

Decision date: 22 July 2022| Member: Elizabeth Beilby

McLellan v Woolworths Group Limited [2022] NSWPIC 407

The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his cervical spine; left shoulder and right shoulder (consequential) resulting from the nature and conditions of employment with the respondent; the respondent accepts the applicant sustained injury to his cervical spine but disputes alleged injury to the right left shoulder and right shoulder (consequential); the respondent also disputes the deemed date of injury to be the date the applicant made his claim for permanent impairment compensation; Held – the applicant sustained injury to his left shoulder and right shoulder (consequential) as a result of the nature and conditions of his employment; with the deemed date of injury being the date the applicant made his claim for permanent impairment compensation under section 66 of the 1987 Act.

Decision date: 25 July 2022| Member: Jacqueline Snell

Valenzuela v State of NSW (Central Coast Local Health District) [2022] NSWPIC 409

Claim for costs of and incidental to proposed left knee arthroscopy and meniscal repair; injury to lumbar spine accepted; whether consequential left knee condition; pre-existing asymptomatic degenerative patellofemoral pathology; complaints of shooting pain and weakness in left leg causing knee to give way following lumbar surgery; whether applicant’s evidentiary onus discharged; Held —evidence to be considered as a whole; evidentiary onus discharged; award in favour of the applicant.

Decision date: 26 July 2022| Member: Rachel Homan

McPherson v Mitre 10 Australia Pty Ltd [2022] NSWPIC 410

Permanent impairment compensation; worker sought referral in respect of accepted injuries to his thoracic and lumbar spines assessed on his behalf at 0% whole person impairment; Held — no claim for compensation; Skates v Hills Industries discussed; determination of the extent of permanent impairment; Shankar v Ceva Industries discussed; referred to Medical Assessor.

Decision date: 26 July 2022| Member: Catherine McDonald

Cacciola v AV Sound Productions Pty Ltd [2022] NSWPIC 411

Claim for weekly compensation; whether in view of applicant’s age, experience and skills; he had no current work capacity; Held — section 32A of the Workers Compensation Act 1987 considered; applicant’s qualified expert considered him suitable for restricted light duties; applicant’s subjective view not supported by medical information; applicant able to earn $300 per week; orders accordingly.

Decision date: 26 July 2022| Member: John Wynyard

Diomidhous v Global Express Courier [2022] NSWPIC 412

Claim for weekly payments of compensation and medical expenses for psychological injury;  whether the applicant was a worker or deemed worker; reference to Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L, and Construction, Forestry, Maritime, Mining and Energy Union v Personal Contracting P/L on issue of worker; reference to Humberstone v Northern Timber Mills and Amalgamated Pest Control P/L v Chaaya on the issue of deemed worker; whether applicant sustained injury in the course of his employment; reference to Attorney General’s Department v K on issue of injury; section 11A of the Workers Compensation Act 1987 (1987 Act) defence raised by employer that psychological injury was wholly or predominantly caused by reasonable action in respect to transfer; Held – applicant was a worker as provided for by section 4 of the Workplace Injury Management and Workers Compensation Act 1998, or in the alternative a deemed worker; applicant sustained psychological injury by way of a disease as provided for by section 4 (b)(i) of the 1987 Act; respondent has failed to establish that the injury was wholly or predominantly caused by reasonable action taken with respect to transfer; applicant has had no current work capacity since 2 February 2021 and award for weekly payments and medical expenses made accordingly.

Decision date: 27 July 2022| Member: John Isaksen

Herbert v Thomson Haulage Pty Ltd [2022] NSWPIC 413

Claim for section 60 of the Workers Compensation Act 1987 (1987 Act) expenses as a result of a frank incident causing injury to right shoulder; dispute as to the nature of the injury whether aggravation of pre-existing degenerative condition or a tendon injury; dispute as to whether the injury had resolved prior to a later non-work injury to the shoulder; dispute as to the severity of the non-work injury and whether the applicant’s claim for section 60 of the 1987 Act expenses was reasonably necessary as a result of the work injury; Held — finding that the work injury consisted of an aggravation of pre-existing degenerative condition in the shoulder which had resolved before the second non-work injury to the shoulder; award for the respondent in respect of the claim for section 60 of the 1987 Act expenses.

Decision date: 27 July 2022| Member: Brett Batchelor

Tsatsi v IXOM Operations Pty Ltd [2022] NSWPIC 414

Claim for lump sum compensation for injury to left knee; applicant tripped on a step and fell on 12 January 2010; whether she suffered an injury to her left knee as well as the admitted significant injury to her left shoulder; applicant claimed such injury in her statement of 25 June 2019 but no complaint recorded by her and/or treating surgeon; applicant then tripped on a step on 8 February 2013; suffering significant injury to the left knee; Held — the relevant question is whether the applicant suffered an injury to her left knee on 12 January 2010; its relationship to the 2013 injury a matter for the motor accident; applicant a creditable witness, and contemporaneous support given by a Rehabilitation Consultant in 2011; Badawi v Nixon Asia Pacific,   Bindah v Carter Holt and Jaffarie v Quality Castings considered; Ozcan v McArthur Disability Services discussed; award applicant.

Decision date: 27 July 2022| Member: John Wynyard

Motor Accident Medical Review Panel Decisions

Meroni v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 300

Medical Review Panel; whole person impairment (WPI); Motor Accident Injuries Act 2017 (2017 Act); talar dome osteochondral injury; laceration to right foot with local nerve damage, hindfoot stiffness; right foot/heel dysesthesia; hindfoot impairment; the claimant suffered injury whilst riding a motorcycle; the dispute related to the assessment of WPI; 2017 Act; the claimant suffered a talar dome osteochondral injury to the right foot; Held — reasonable to rate the talar dome osteochondral injury by analogy using Table 64 American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition(AMA 4) page 85-86; condition consistent with diagnosis of avascular necrosis of the talus without collapse 3% WPI; right foot/heel dysesthesia assessed Table 11, AMA 4, page 48 at 1% WPI; combining the two impairments provides a 4% WPI; earlier assessment of 5% WPI for scarring to the right foot, degloving of the right heel and aggravation of psoriasis; total combined assessment 9% WPI; certificate of Assessor Woo affirmed.

Decision date: 29 June 2022| Panel Members: Member Susan McTegg, Medical Assessors Les Barnsley and Alan Home| Injury module: Lower limb

Blanchette v AAI Limited t/as GIO [2022] NSWPICMP 304

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 May 2017; Held — original Medical Assessor’s Certificate confirmed; finding that major depressive disorder had resolved, and the residual features of anxiety do not fulfil the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for a psychiatric condition; the degree of permanent impairment is not greater than 10%.

Decision date: 23 July 2022| Panel Members: Principal Member Josephine Member, Medical Assessors Tom Newlyn and Sharon Reutens | Injury module: Mental and behavioural

Workers Compensation Medical Appeal Panel Decisions

Ultimate Site Services v Cotterill [2022] NSWPICMP 301

Appeal against assessment of impairment in respect of the left upper extremity based on failure to apply a deduction in accordance with chapter 2.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) in respect of reportedly abnormal contralateral limb; the range of motion measurements recorded in the Medical Assessment Certificate (MAC) patently supported the appellant insurer’s submission; on review the measurements recorded by the Medical Assessor; particularly with respect to the flexion in the uninjured right shoulder suggested that there was a typographical error in recording those measurements (80° flexion recorded when normal flexion is 180°); the Panel having found demonstrable error required reassessment to ascertain the correct range of motion in the right upper extremity; Held — demonstrable error established; upon re-examination range of motion in the contralateral shoulder was found to be normal and no deduction pursuant to chapter 2.20 of the Guidelines was warranted; MAC confirmed.

Decision date: 22 July 2022 | Panel Members: Member William Dalley, Medical Assessors James Bodel and Margaret Gibson | Body system: Upper extremity

Disability Services Australia Ltd v Puleanga [2022] NSWPICMP 303

Appeal by employer against Medical Assessment Certificate (MAC) for 17% whole person impairment (WPI) suffered as a result of psychological injury suffered by respondent worker; the appellant alleged that the Table 11.4 psychiatric impairment rating scale (PIRS) classification of the respondent in Class 3 (moderate impairment) rather than Class 2 (mild impairment) was a demonstrable error; the respondent also alleged that the deduction of 5% (1/20th) rather that a higher figure from the assessed WPI of 17% was a demonstrable error; finding by the Appeal Panel that there was no error in placing the respondent in Class 3 of PIRS for social functioning; finding by the Appeal Panel that there was a demonstrable error in the 5% deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held — the deduction should be 10% (1/10th) in accordance with section 323(2) of the 1998 Act; Medical Assessment Certificate (MAC) revoked and new MAC issued.

Decision date: 26 July 2022 | Panel Members: Member Brett Batchelor, Medical Assessors Douglas Andrews Michael Hong | Body system: Psychiatric and psychological

Tal v CDR ACN Pty Ltd (formerly known as Civil Foundations Piling Pty Ltd [2022] NSWPICMP 305

Appeal against the assessment of hearing impairment which did not include loss below 2000 Hz; alleged failure to provide reasons or properly address proportion of non-industrial impairment, failure to apply section 65A of the Workers Compensation Act 1987 (1987 Act) and failure to take account of hearing loss below 2000 Hz; Held — Medical Assessor had provided appropriate reasons for excluding losses below 2000 Hz and had appropriately assessed noise induced hearing loss in accordance with the shape of the audiogram and the degree of asymmetry; section 65A of the 1987 Act was not relevant to the determination of noise induced hearing loss; Medical Assessment Certificate confirmed.

Decision date: 26 July 2022 | Panel Members: Member William Dalley, Medical Assessors Joseph Scoppa and Brian Williams | Body system: ENT

Motor Accidents Merit Review Decisions

Ayache v Allianz Australia Insurance Limited [2022] NSWPICMR 41

Refusal of payment of statutory benefits; workers compensation claim; Held — insurer’s duty to provide written reasons for decisions that materially affect entitlements to statutory benefits.

14 July 2022 | Merit Reviewer: Kriesen Seeneevassen

Newman v AAI Limited t/as GIO [2022] NSWPICMR 42

Dispute about the amount of weekly payments of statutory benefits payable under section 3.8, Division 3.3, Part 3 of the Motor Accident Injuries Act 2017 (2017 Act) after the second entitlement period (after 78 weeks); insurer argues this claimant’s earning capacity dispute constitutes a medical assessment matter under Schedule 2 clause 2(d) of the 2017 Act and the Personal Injury Commission (Commission) may not determine the dispute as a merit review matter; “impairment of earning capacity” as a medical dispute is found in Part 4 of the 2017 Act; see for example sections 4.5(1)(a), 4.6(1)(a), 4.6(3), 4.8 & 4.9(1)(a); Part 4 addresses damages not statutory benefits; right shoulder condition complained of 4 months post–accident; General Practitioner supports accident causing claimant’s loss of earning capacity; conflicting causation opinions in medical assessments on treatment and minor injury status; medical assessments not binding on causation; conflicting claimant accounts of accident mechanism and symptom onset in right shoulder; Assessors relying on uneducated and mentally ill claimant to provide account of accident mechanism; right shoulder asymptomatic pre–accident; insurer preferred view that psychological condition related only to right shoulder; not accident related; 3 member Medical Review Panel (Panel) questioned claimant on accident mechanism via video; Panel made findings on credit; Panel found right shoulder not related to accident; but neck condition related and non–minor; Medical Assessor found accident primarily caused non-minor psychological condition and secondarily related to accepted neck and disputed right shoulder conditions; Held — the Commission can determine this dispute about earning capacity as a merit review matter under Schedule 2(1)(a) of the 2017 Act; reviewable decision set aside and remitted to insurer to consider; correct and preferable conclusion claimant’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury.

Decision date: 22 July 2022 | Merit Reviewer: Terence O’Riain

Colquhoun v AAI Limited t/as GIO [2022] NSWPICMR 43

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the claimant was expressly required to undergo training, instruction or examination for the purpose of being qualified for the occupation to which the contract of service related; Schedule 1, clause 6 of the 2017 Act; whether the claimant is an earner by reason of having entered into an arrangement with an employer to undertake employment; Schedule 1, clause 4(2)(c) of the 2017 Act; Held — the reviewable decision is affirmed.

24 July 2022 | Merit Reviewer: Kriesen Seeneevassen

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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