Legal Bulletin No. 90

Issued 9 December 2022

Welcome to the ninetieth 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.

Motor Accidents non-Presidential Member Decision

McLean v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 658

Contributory negligence; assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act 2017 for non-economic loss, past loss of earnings and future loss of earnings; where claimant admits to abusing alcohol and cannabis before and after the motor accident and its effect in the assessment of damages; extent of physical and psychological injuries in dispute; Podrebersek v Australian Iron and Steel Pty Ltd, Pennington v Norris, Stapley v Gypsum Mines Ltd, Smith v McIntyre, Broadhurst v Millman, Hallowell v The Nominal Defendant,Medlin v State Government Insurance Commission, Husher v Husher, Zilio v Lane and Harrison v Melhelm considered and applied; Schneider v Smith & Anor distinguished; Held –on the issue of contributory negligence, the claimant’s damages are to be reduced by 0% on account of the claimant’s contributory negligence.

Decision date: 29 November 2022| Member: Anthony Scarcella

Workers Compensation non-Presidential Member Decisions

Kapoor v Soar Aviation & Ors [2022] NSWPIC 652

Distribution of the lump sum death benefit; Held – approval of proposed distribution.

Decision date: 24 November 2022| Senior Member: Elizabeth Beilby

McKinnon v Port Marina Pty Ltd [2022] NSWPIC 654

Fall at work causing rupture of breast implant; dispute as to whether worker suffered an injury being a pathological change; Kennedy Cleaning Services Pty Ltd v Petkoska, Castro v State Transit Authority (NSW), North Coast Area Health Service v Felstead, Military Rehabilitation and Compensation Commission v May discussed; treatment fell within the definitions in section 59 of the Workers Compensation Act 1987 (1987 Act) even though the original implant was not an artificial aid; Held – award for weekly compensation and section 60 expenses of the 1987 Act.

Decision date: 25 November 2022| Member: Catherine McDonald

Smith v North Fresh Pty Limited t/as Guyra Tomato Farm/Tomato Exchange [2022] NSWPIC 655

Injury to lower back not disputed; prior surgery at L5/S1 level; surgery at L4/L5 now sought and disputed; it was disputed that surgery at L4/5 was reasonably necessary as a result of the injury; Held – evidence weighed in the balance and on the balance of probabilities held the surgery resulted from the injury; award for the worker.

Decision date: 28 November 2022| Member: Jane Peacock

Hoque v State of NSW (HealthShare NSW) [2022] NSWPIC 656

Claim for lump sum compensation; accepted cervical and lumbar injury due to nature and conditions of employment as a hospital cook; whether right shoulder injured in same manner; contemporaneous reports of upper limb symptoms initially attributed to cervical injury by treating practitioners; delay in investigation of shoulder; whether applicant’s expert evidence should be accepted; Held – review of treating evidence, radiological evidence and medicolegal evidence; applicant’s expert opinion accepted; matter remitted to President for referral to a Medical Assessor.

Decision date: 28 November 2022| Member: Rachel Homan

Thompson v Nationwide News Pty Limited [2022] NSWPIC 661

Death of worker; orders previously made in relation to payment of lump sum pursuant to section 25 of Workers Compensation Act 1987;disputed claim for interest by the applicant who is the deceased’s widow and sole dependant; Held – pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 the respondent is to pay the applicant interest on the lump sum of $834,200 at the rate of 2.2 per cent per annum for the period from 20 June 2022 to 30 September 2022.

Decision date: 30 November 2022| Principal Member: Josephine Bamber

Tofighian v The University of Sydney [2022] NSWPIC 662

Claim for weekly compensation in respect of psychological injury; only issues in dispute were capacity and credit; submissions against applicant’s credit considered; Finney Pty Limited t/as Cut Price Car Rentals v Chequer considered; Held – applicant’s credit not impeached and his statements were accepted; found no capacity for work; award for applicant for weekly compensation.

Decision date: 30 November 2022| Member: Michael Wright

Brown v State of New South Wales (Fire & Rescue NSW) [2022] NSWPIC 663

Claim for lump sum compensation; causation disputed in respect of disease injury of the right hand arising from the nature and conditions of employment; Mason v Demasi and Kooragang Cement v Bates considered; Held – applicant sustained disease injury and aggravation of disease injury; matter referred to Medical Assessor for assessment of permanent impairment.

Decision date: 30 November 2022| Member: Michael Wright

Lennon v De Martin & Gasparini Pty Limited [2022] NSWPIC 664

Claim for weekly benefits, medical expenses and permanent impairment compensation as a result of accepted frank injury to right elbow on 19 July 2017; claimed aggravation, acceleration, exacerbation or deterioration of disease injury to right elbow, right wrist and left wrist; deemed date of injury of 1 November 2017; respondent insured by two insurers over the course of the applicant’s employment; application of sections 4(b)(ii) and 16 of the Workers Compensation Act 1987; consideration of Makita (Australia) Pty Ltd v Sprowles, AV v AW, White v Sylvania Lighting Australasia Pty Ltd and State Transit Authority of New South Wales v El-Achi; Held – applicant sustained injury to right elbow on 19 July 2017; injury to right elbow, right wrist and left wrist on 1 November 2017 (deemed); matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to right upper extremity (right elbow) on 19 July 2017; right upper extremity (right elbow and wrist) and left upper extremity (left wrist) on 1 November 2017 (deemed); matter to be listed for further preliminary conference after issue of the Medical Assessment Certificate and for directions regarding the claim for weekly benefits and medical expenses.

Decision date: 30 November 2022|Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Sorrenti v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 477

Review of medical assessment made under Motor Accidents Compensation Act 1999; whetherthe degree of permanent impairment of the claimant as a result of a psychological injury caused by the accident is greater than 10%; Medical Assessor gave a certificate certifying that the psychological injury caused by the accident had resolved and did not result in permanent impairment; Held – the evidence supported a diagnosis of  adjustment disorder with mixed anxiety and depressed mood; condition had been caused by the accident; the claimant did not suffer from post-traumatic stress disorder; the adjustment disorder with mixed anxiety and depressed mood gave rise to a 0% permanent impairment.

Decision date: 13 September 2022| Panel Members: Member Brett Williams, Dr Atsumi Fukui and Dr Wayne Mason| Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v Alalawi [2022] NSWPICMP 478

The claimant suffered injury in a motor accident on 10 April 2021 when the insured vehicle collided into the rear side of the claimant’s vehicle forcing it into another vehicle (the motor accident); this was a medical dispute about whether the motor accident caused a non-minor injury within the meaning of the Motor Accident Injuries Act 2017; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; reference to David v Allianz Australia Insurance Ltd that two signs of radiculopathy can be present at any time; original Medical Assessor’s findings that claimant had radiculopathy not accepted as Medical Assessor recorded findings that there were no neurological signs yet concluded that radiculopathy present; Held – the Panel concluded that the claimant suffered a minor injury; there was no radiculopathy in either the upper or lower limbs as defined by the Motor Accident Guidelines (Guidelines); the reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in cl 5.8 of the Guidelines as it did not describe symptoms in a specific dermatome; the pathology in the cervical spine showed longstanding degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; original assessment revoked; findings made that claimant sustained a minor injury to the cervical spine.

Decision date: 22 November 2022| Panel Members: Principal Member John Harris, Dr Les Barnsley and Dr Michael Couch | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

GPC Asia Pacific Pty Limited v Elkhateeb [2022] NSWPICMP 480

Employer alleges error by the Medical Assessor (MA) in failing to make a deduction for a pre-existing condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; MA’s findings that there was no history of any significant condition pre-existing injury inconsistent with both the clinical notes of the worker’s general practitioner and the radiological evidence; Held – Medical Assessment Certificate revoked; on reassessment deduction of 1/10^th in respect of pre-existing condition of cervical and lumbar spines and right shoulder.

Decision date: 24 November 2022| Panel Members: Member Paul Sweeney, Dr Roger Pillemer and Dr David Crocker | Body system: Cervical and Lumbar Spine, Right Upper Extremity and Scarring

Younan v Sealcorp Australia Pty Ltd [2022] NSWPICMP 481

Right lower extremity injury; the appellant appealed on the basis that the Medical Assessor (MA) was in error in not referring to a critical piece of evidence being the report of Dr Guirgis which supported the claim for permanent impairment; the MA does not need to refer to each piece of evidence; in any event, the assessment by Dr Guirgis is plainly in error in circumstances where he has assessed impairment on the basis of a fracture with displacement; the radiological investigations to which the MA has had proper regard show that the fracture has been anatomically united using internal fixation devices; this means it is not displaced and cannot be rated for impairment based on displacement which is how Dr Guirgis rated the impairment; he also gave an impairment rating based on chondral loss when in fact there is no radiological evidence of chondral loss; chondral loss can only be assessed on the basis of radiological evidence; the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed do not permit a diagnosis based estimate to be combined with impairment from Range of Movement (ROM); Held – the MA has correctly assessed impairment on the basis of loss of ROM and the Appeal Panel can discern no error.

Decision date: 24 November 2022| Panel Members: Member Jane Peacock, Dr Brian John Stephenson and Dr Drew Dixon | Body system: Right Lower Extremity and Scarring

Spratt v Allstaff Australia Sydney Pty Ltd [2022] NSWPICMP 482

Lumbar spine injury; appellant alleged error in the assessment of Diagnosis Related Estimate (DRE) II and submitted DRE III should have been found; Medical Assessor (MA) should have assessed DRE III on the basis that one major criterion and one minor criterion satisfied in accordance with the criteria in Paragraph 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016; Held – Medical Assessment Certificate revoked.

Decision date: 25 November 2022| Panel Members: Member Jane Peacock, Dr Tomassino Mastroianni and Dr John Brian Stephenson | Body system: Cervical, Thoracic and Lumbar Spine

Bodiroza v Alpha & Omega Bricklaying Pty Ltd [2022] NSWPICMP 483

Appellant assessed for whole person impairment (WPI) resulting from injury of hearing loss; MA made deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998(1998 Act) of 70% for proportion of WPI due to hearing loss that occurred when appellant was exposed to noise in (1) employment in Yugoslavia prior to his employment with the respondent, (2) when previously self-employed, and (3) when self-employed subsequent to his employment with respondent; Appeal Panel held MA erred by making a deduction under section 323 for post-employment noise, and post-employment noise was not, in any event, such that it would have contributed to appellant’s hearing loss; Held – Appeal Panel held that there was damage to appellant’s cochlea from exposure to noise prior to commencing employment to which section 17 of the Workers Compensation Act 1987 related, and that damage contributes to appellant’s present hearing impairment, but the extent of the contribution was too difficult to determine so the deduction to be made under s323(1) of the 1998 Act in accordance with s323(2) of the 1998 Act was 10%; Medical Assessment Certificate revoked.

Decision date: 29 November 2022| Panel Members: Member Marshal Douglas, Dr Robert Payten and Dr Joseph Scoppa | Body system: Hearing

Secretary (Department of Education) v McGrady [2022] NSWPICMP 484

Applicant sustained primary psychological injury; Medical Assessor assessed applicant as having a whole person impairment (WPI) of 15%; deducted one-tenth for pre-existing injury, condition or abnormality; added 1% WPI for the effects of treatment resulting in 14.5% WPI; rounded up to a total of 15% WPI; Panel held that the Medical Assessment Certificate (MAC) contained a demonstrable error in relation to the addition of 1% WPI for the effects of treatment as the modifier in chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016 reissued 1 March 2021 is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment; Held – MAC revoked.

Decision date: 29 November 2022| Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological and Psychiatric

Motor Accidents Merit Review Decisions

Dinkha v Australia Limited t/as NRMA Insurance [2022] NSWPICMR 67

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of pre-accident weekly earnings (PAWE); schedule 1, clause 4 of the 2017 Act; meaning of earns continuously; schedule 1, clause 4(4) and clause 4(2)(a) of the 2017 Act; significant change in earning circumstances; schedule 1, clause 4(3) and clause 4(2)(b) of the 2017 Act; Held – the reviewable decision is affirmed.

Decision date: 25 November 2022| Merit Reviewer: Katherine Ruschen

Hawach v AAI Limited t/as GIO [2022] NSWPICMR 68

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the degree of permanent impairment as a result of the injury is greater than 10%; section 3.12 of the 2017 Act; cessation of weekly payments; pending claim for damages; whether weekly payments continue if there is an internal review decision and no medical dispute or a pending medical under Division 7.5 of the 2017 Act; Held – the reviewable decision is affirmed.

Decision date: 28 November 2022| Merit Reviewer: Katherine Ruschen

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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