Legal Bulletin No. 91

Issued 16 December 2022

Welcome to the ninety-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.

Notable Decision

Watts v BKFY Pty Ltd [2022] NSWPIC 700

The applicant is a resident of Victoria and allegedly suffered injuries giving rise to a claim of permanent impairment; the respondent is a private company with insurance under the NSW compulsory workers compensation scheme; a Tribunal cannot decide whether the determination involves an exercise of federal jurisdiction and should express a view consistent with the test set out in Citta Hobart Pty Ltd v Cawthorn; there are three requirements in determining whether a claim is potentially federally impacted, they are: jurisdiction can only be exercised by a court of a State, the resolution of the dispute requires the exercise of judicial power (“judicial” as understood in the constitutional sense), and the matter is between residents of different States, or between a State and a resident of another State; observations made that the Personal Injury Commission is arguably not a court of a State: Orellana-Fuentes v Standard Knitting Mill Pty Ltd and Attorney-General for New South Wales v Gatsby referred to; observations made that, whilst unclear, the matter may involve the exercise of judicial power: Searle v McGregor and Tomlinson v Ramsay Food Processing Pty Ltd referred to; the respondent is a private company engaged in a cleaning business; the claim is brought against the employer pursuant to section 9 of the Workers Compensation Act 1987; whilst the insurer exercises a statutory right of subrogation, that does not alter the identity of the parties to the proceedings; accordingly, in the action between the applicant and the respondent, there is no arguable defence that the respondent is considered a State for the purposes of theCommonwealth of Australia Constitution Act; observations made about whether “self-insurers” are considered a State; Held – opinion expressed that the defence that the application is federally impacted is unarguable.

Decision date: 13 December 2022| Principal Member: John Harris

Presidential Member Decisions

Cessnock City Council v Wilson [2022] NSWPICPD 46

Workers Compensation; injury; reliability of the evidence; reliability of a treating doctor’s clinical notes; the drawing of inferences; Jones v Dunkel discussed; Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt considered and applied; procedural fairness; whether there is error in not dealing with a submission concerning whether a Jones v Dunkel inference should be drawn.

Decision date: 2 December 2022 | Before: Acting Deputy President Kylie Nomchong SC

Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47

Workers Compensation; the requirements of section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of bringing an appeal: O’Callaghan v Energy World Corporation Ltd, Abu-Ali v Martin-Brower Australia Pty Ltd referred to; Popovic v Liverpool City Council discussed; the definition of ‘pre-injury average weekly earnings’ in clause 2(1) of Schedule 3 to the 1998 Act; the definition of ‘earnings’ in clause 6 of Schedule 3 to the 1998 Act; statutory interpretation: the term ‘gross’ in the definition in Schedule 3, clause 2(1) of the 1998 Act; application of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue; the ‘objects’ in section 3 of the 1998 Act; SAS Trustee Corporation v Miles considered and applied.

Decision date: 6 December 2022 | Before: Deputy President Michael Snell

Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48

Workers Compensation; section 4 of the Workers Compensation Act 1987; nature of injury; determination of pathology; Inghams Enterprises Pty Limited v Belokoski applied; weight given to expert evidence; Hancock v East Coast Timber Products Pty Limited applied; decision maker not required to address every piece of evidence or argument in reasons; failure to address evidence or argument must be critical to case to establish error; Ming v Director of Public Prosecutions (NSW) considered.

Decision date: 7 December 2022 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decision

AAI Limited t/as GIO v BDJ [2022] NSWPIC 637

Motor Accident Injuries Act 2017;application by insurer for exemption on basis claim not suitable for assessment; claimant opposes exemption; insurer has surveillance film that indicates claimant has been working contrary to statements and histories giving to doctors; insurer alleges false or misleading statements made in connection with the claim; claimant says he has done volunteer work but has fallen out with person he has volunteered with; Held– claim not suitable for assessment due to the allegations made by the insurer, the nature of the evidence required to meet the allegations and the necessity to have a hearing in open court.

Decision date: 19 October 2022| Member: Belinda Cassidy

AAI Limited t/as AAMI v Gunnulson [2022] NSWPIC 657

Approval of damages settlement pursuant to section 6.23 of the Motor Accident Injuries Act 2017; claimant is a now 57 year old male who suffered serious injuries, primarily relating to fractures of the left lower limb as a result of a motor accident occurring on 11 May 2019;  claimant has been separately diagnosed with dementia after the accident; satisfied that motor accident did not contribute to such condition; claimant unable to continue working after the accident, however, dementia condition also incompatible with employment; claimant no longer able to walk long distances; Held – settlement of $400,000 approved, comprising $200,000 for non-economic loss, $90,000 for past economic loss and $110,000 for future economic loss; settlement of $150,000 for non-economic loss damages approved.

Decision date: 28 November 2022| Member: Elizabeth Medland

AAI Limited t/as AAMI v Ross (EOTL) [2022] NSWPIC 670

Application for settlement approval; accident occurring on 26 September 2018; deceased claimant diagnosed as suffering from mild Alzheimer’s dementia in 2016; deceased claimant was a front seat passenger in a car involved in a T-bone collision at intersection; deceased spent 75 days in hospital in recovery with serious injuries; deceased condition rapidly deteriorated and deterioration in cognitive condition causally related to the accident; deceased requiring 24 hour care post-accident but not in receipt of specific care pre-accident; deceased was 81 years of age at the time of the accident and 83 years of age at the time of her death; insurer conceded whole person impairment threshold exceeded; claim made by the executor of the will of the deceased; Held – offer of $100,000 inclusive course with no deductions by the insurer accepted by the executor.

Decision date: 6 December 2022| Member: Alexander Bolton

Yoo v AAI Limited t/as GIO [2022] NSWPIC 671

Damages assessment under Motor Accident Injuries Act 2017; claimant suffered physical and psychological injury as a result of accident; insurer agreed that she was entitled to damages for non-economic loss; claim for past and future economic loss; claimant was on student visa at time of accident; South Korean national; argued that most likely future circumstances were that she would have remained in Australia; Held – awards made for non-economic loss and economic loss; claimant had an ongoing loss of capacity that was productive of financial loss; loss of capacity due to physical and psychological injuries; most likely future circumstances were that she would return to South Korea; damages of $1,079,293 assessed.

Decision date: 6 December 2022| Member: Brett Williams

Reynolds v Allianz Australia Insurance Limited [2022] NSWPIC 672

Motor Accident Injuries Act 2017 (2017 Act); section 6.13(2) of the 2017 Act; statutory weekly payments; statutory interpretation; no discretion; the claimant was injured in a motorcycle accident on 20 January 2021; claim for statutory benefits made on 10 March 2021; claim not made within 28 days of date of accident; no entitlement to statutory weekly payments before 10 March 2021; 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: 9 December 2022| Member: Susan McTegg

BCS v AAI Limited t/as GIO [2022] NSWPIC 674

Approval of proposed settlement of damages claim under section 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the amount of $1,837,292.30; claimant suffered significant physical injuries, together with scarring and psychological injury as a result of accident; liability admitted; Held – proposed settlement approved; when considered by reference to the allowance for each head of damages, and as a whole, the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim; the matter to be assessed by the Personal Injury Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.

Decision date: 12 December 2022| Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Howard v Bede Murray Racing Stables [2022] NSWPIC 665

By a section 78 of the Workplace Injury Management and Workers Compensation Act 1998 notice, the employer sought to deny injury to the worker’s neck and shoulders on 16 January 2009; a previous award of the Workers Compensation Commission (WCC) in 2015 ordered the employer to pay permanent impairment compensation in respect of these body parts as a result of the 2009 injury; a further award of the WCC in 2017, entered after an arbitration hearing, ordered the employer to pay section 60 of the Workers Compensation Act 1987 expenses as a result of an injury to the neck on 16 January 2009; Tomlinson v Ramsey Food Processing Pty Limited and Miller v Secretary, Department of Communities and Justice considered and applied; Held– that  the earlier awards were binding “judicial determinations” that the worker suffered injury to her neck and both shoulders on 16 January 2009; employer estopped from denying injury in these proceedings both by cause of action estoppel and the principle in Anshun v Port of Melbourne Authority.

Decision date: 2 December 2022| Member: Paul Sweeney

Pons v Secretary, Department of Education [2022] NSWPIC 666

Claim for lumbar surgery; determination as to whether the need for surgery arose from an ‘injury’ and if it was reasonably necessary; Held –finding in favour of the applicant.

Decision date: 2 December 2022| Senior Member: Elizabeth Beilby

Nilon v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 667

Claim for weekly compensation; applicant suffered severe injury in a fall at a work site on 2 June 2022; fact of the injury not in issue; pre-injury average weekly earnings (PIAWE) and continuing total incapacity also not in issue; the applicant was injured in a fall from scaffolding on 2 June 2022 on a building site owned by the fourth respondents; the first respondent was the head contractor on the building site and the third respondent another contractor working on the site, who introduced the applicant to the opportunity for work on the site in question; neither the first nor fourth respondent were insured for workers compensation purposes, and the nominal insurer was therefore joined as second and fifth respondents; each of the substantive respondents asserted they were not the employer of the applicant, and each of the first, third and fourth respondents all denied contracting with him; Held – before determining whether the applicant was a worker, deemed worker or contractor it is necessary to determine with whom he contracted; in doing so it is necessary to examine the totality of the evidence to consider the reality of the purported contractual relationships; Pitcher v Langford, R v Fostar; ex parte Commonwealth Life (Amalgamated Assurances) Ltd and Shaw v Bindaree Beef Pty Ltd followed; an evaluation of the evidence in this matter establishes the applicant entered into a contract with the first respondent; the contract between the applicant and first respondent was oral, and accordingly the indicia set out in Stevens v Brodribb Saw Milling Company Pty Ltd must be examined; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited and ZG Operations Australia Pty Ltd v Jamsek followed; on balance, the contract was a contract for services, not a contract of service; however, the applicant was a deemed worker of the first respondent, as he was undertaking work to a value of greater than $10 which he did not sublet, nor which related to a trade or business which he regularly carried on in his own name or under a business name; award for the applicant for the payment of weekly compensation from 2 June 2021 to date and continuing; awards for each of the second to fifth respondents.

Decision date: 5 December 2022| Member: Cameron Burge

Hoang v Cochlear Limited [2022] NSWPIC 668

Claim for lump sum compensation; accepted lumbar injury and consequential right shoulder condition; whether consequential left shoulder condition; whether applicant’s explanation plausible applying a common-sense test; lack of radiological investigation; whether medicolegal opinions ought to be accepted; Held – symptoms of pain and restriction at left shoulder resulted from the lumbar injury; matter remitted to President of the Personal Injury Commission for referral to a Medical Assessor.

Decision date: 5 December 2022| Member: Rachel Homan

Clark v Richmondpra Limited [2022] NSWPIC 669

Psychological injury; injury undisputed; section 11A of the Workers Compensation Act 1987 (1987 Act) defence; the respondent bears the onus of proving its section 11A of the 1987 Act defence; evidence weighed in the balance; Held – satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to dismissal; not satisfied, on the balance of probabilities, that it has discharged its onus that the action taken in relation to dismissal was reasonable; applicant not precluded from the recovery of compensation for her psychological injury by reason of the provisions of section 11A of the 1987 Act; award for the applicant.

Decision date: 6 December 2022| Member: Jane Peacock

Motor Accidents Medical Review Panel Decisions

Tran v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 485

Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment and claimant’s review under section 63 of the 1999 Act; interim decision regarding Panel’s power to issue directions to the claimant requiring claimant to sign 15 authorities and power to issue directions to 15 third parties for documents relevant to the assessment; Held –   power in section 49(1)(c) of the Personal Injury Commission Act 2020 (2020 Act) to direct a party to provide consents or authorities lies with the Personal Injury Commission (Commission); the Commission is constituted by its Members under section 31(1) of the 2020 Act; Panels have no power under section 49(1)(c) of the 2020 Act, however the Division Head or Principal Registrar appears to have that power; rule 46 of the Personal Injury Commission Rules 2021 permits a non-presidential member to issue a direction to a person who is not a party to produce documents; while there is a non-presidential member on the Panel, the proceedings have been referred to the Panel as a whole and that body does not have power to issue the requested directions; the Division Head or the Principal Registrar appears to have that power.

Decision date: 8 November 2022| Panel Members: Member Belinda Cassidy, Dr Tai Tak Wan and Dr David Gorman

AAI Limited t/as GIO v Nazari [2022] NSWPICMP 486

Motor Accidents Injuries Act 2017 (2017 Act); medical disputes about minor injury and permanent impairment and review of the Medical Assessor’s assessment under section 7.26 of the 2017 Act (psychological injury); claimant was hit from behind while stationary in traffic on the freeway; taken to hospital by ambulance with laceration over his eye, soft tissue injuries and aggravation of a previously broken elbow; claimant developed symptoms of post-traumatic stress disorder (PTSD) and major depressive disorder (MDD); dispute about whether claimant satisfied the criteria for PTSD or MDD and therefore whether injuries minor or non-minor; no issue with methodology of whole person impairment assessment (WPI) (19%) or application of the permanent impairment rating scale (PIRS); Held – claimant satisfied criteria for both PTSD and MDD, injuries non-minor and degree of WPI 17%; no matter of principle.

Decision date: 25 November 2022| Panel Members: Member Belinda Cassidy, Dr Atsumi Fukui and Dr Michael Hong | Injury module: Mental and Behavioural

Younes v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 487

The claimant suffered injury on 31 August 2021 in a head on collision with the insured vehicle resulting in air-bag deployment; 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; the Panel concluded that the claimant suffered a non-minor injury to the right shoulder by reason of absence of prior complaints, contemporality of right shoulder symptoms, consistency of symptoms, severity of motor accident, scan evidence including the specific location of the tear and findings on examination; claimant suffered injuries to the cervical and lumbar spine which were minor injuries; 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; there was no radiculopathy in either the upper or lower limbs as defined by the Motor Accident Guidelines; the clinical notes refer to symptoms of radicular pain including numbness in the right hand; these are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome; Held – original assessment revoked; findings made that claimant sustained a non-minor injury to the right shoulder.

Decision date: 29 November 2022| Panel Members: Principal Member John Harris, Dr Neil Berry and Dr David Gorman | Injury module: Spine and Upper Limb

Yang v AAI Limited t/as GIO [2022] NSWPICMP 488

Motor Accidents Compensation Act 1999 (1999 Act); medical dispute about whole person impairment (WPI) and Review of Medical Assessor’s (MA) assessment of 9% WPI under section 63 of the 1999 Act; claimant was hit from behind while stationary in traffic; claimant reported immediate pain in the calf but development of pain in neck, back and both shoulders within a few days; MA found 0% for neck, 5% for lower back and shoulders 2% each based on the Nguyen v Motor Accidents Authority of New South Wales and Anor principle (shoulder impairment was due to the neck injury) but inserted the shoulder impairment into the table of impairments under neck; issue in dispute was neck impairment and shoulder impairment; re-examination required; Held – claimant’s WPI was 7% - 5% for the lower back, 0% for the neck but 1% for each shoulder both of  which had improved in functionality (and increased range of motion) since original assessment; no issue of principle.

Decision date: 30 November 2022| Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine and Upper Limb

Cvetkovski v AAI Limited t/as AAMI [2022] NSWPICMP 489

Medical Review Panel decision; claimant previously assessed by Medical Assessor (MA) and found to have an adjustment disorder with mixed anxiety and depressed mood; decision of MA revoked; claimant suffering worsening features of flashbacks, poor sleep, headaches and nightmares; suggestion by insurer’s expert that claimant was catastrophising and awfulising his situation but the Panel did not accept this; Held – Panel satisfied that the claimant’s condition meets the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) diagnostic criteria of post-traumatic stress disorder; panel determined that the claimant is suffering a non-minor injury.

Decision date: 30 November 2022| Panel Members: Member Alexander Bolton, Dr Atsumi Fukui and Dr Matthew Jones| Injury module: Mental and Behavioural

Ishak v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 490

The claimant suffered injuries in a motor accident on 4 June 2019; the issue was whether a total hip replacement was reasonably and necessary and caused by the motor accident; the claimant had a pre-existing right hip condition which was rendered symptomatic by the motor accident; although it is unusual, it is medically plausible that the right hip could be injured in a minor rear end collision from the jarring nature of the accident; the fact that the claimant had a significant pre-existing condition rendered him more vulnerable to an exacerbation; various factors considered when assessing whether the surgery was reasonable and necessary in the circumstances; Diab v NRMA referred to; the motor accident materially contributed to the need for surgery because it rendered the right hip condition symptomatic and significantly brought forward the need for the operation; AAI Ltd v Phillips referred to; Held – findings made that proposed surgery both reasonable and necessary and caused by the motor accident.

Decision date: 30 November 2022| Panel Members: Principal Member John Harris, Dr Neil Berry and Dr Shane Moloney | Injury module: Lower Limb

Slocombe v AAI Limited t/as GIO [2022] NSWPICMP 491

Motor Accidents Compensation Act 1999 (1999 Act); medical dispute about whole person impairment (WPI) and Review of Medical Assessor’s (MA) assessment of (no injury) and no permanent impairment under section 63 of the 1999 Act; claimant’s musculoskeletal injuries had been assessed at 9%; further assessment sought due to gastric reflux and rectal haemorrhage and anal seepage allegedly due to medication use; claimant had longstanding history of medication use and previous complaints of gastrointestinal issues and rectal bleeding; there were inconsistent histories and the claimant reported poor memory; therefore the Panel considered the claimant’s evidence unreliable; Held – gastric reflux was present before the accident, may have worsened but no additional impairment; claimant has experienced haemorrhoids since the accident which, on balance is due to medication use and attracts a 1% WPI.

Decision date: 1 December 2022| Panel Members: Member Belinda Cassidy, Dr Chris Oates and Dr Neil Berry | Injury module: Digestive

Youssef v QBE Insurance (Australia) Limited [2022] NSWPICMP 492

The claimant was injured in a motor vehicle accident on 21 November 2018; the dispute related to the assessment of whole person impairment (WPI); Motor Accident Injuries Act 2017; fractured sternum; neck; mid back; lower back; stomach (gastrointestinal); Held – cervical spine injury, thoracic spine injury, lumbar spine injury, sternum fracture causally related to accident; gastrointestinal injury not causally related; lack of temporal connection; injury to thoracic spine recovered; uncomplicated sternal fractures not attract assessable permanent impairment; cervical spine and lumbar spine assessed as diagnosis related estimate (DRE) category 1 or 0% WPI.

Decision date: 1 December 2022| Panel Members: Member Susan McTegg, Dr Chris Oates and Dr Margaret Gibson | Injury module: Spine, Upper Limb and Digestive

Saliba v CIC Allianz Insurance Limited [2022] NSWPICMP 493

The claimant suffered an injury on 17 March 2020 when the insured vehicle turned right and collided into the back side of his 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 in the motor accident; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; 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 Guidelines; the pathology in the cervical spine showed degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; the right shoulder tear shown on the scan was in the insertion of the subscapularis tendon into the bone; it is a partial tear that is not normally associated with trauma and more likely degenerative and associated with overuse or repetitive motion; this conclusion is consistent with the claimant’s age and underlying diabetes which makes a person more prone to degenerative changes in the shoulders; the claimant’s age, the nature and extent of the partial tear, underlying health conditions such as diabetes and low impact forces from the motor accident probably show that the tear was probably pre-existing and asymptomatic prior to the motor accident; Held – original assessment confirmed; findings made that claimant sustained a minor injury.

Decision date: 1 December 2022| Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Neil Berry | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Elms v State of New South Wales (Western NSW Local Health District) [2022] NSWPICMP 494

Psychological Injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, social functioning in circumstances where Medical Assessor (MA) made an error in the history; Appeal Panel accepted there was an error in the history but found the assessment of class 3 was still the best fit; Held – Medical Assessment Certificate confirmed.

Decision date: 1 December 2022| Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

State of NSW (Central Coast Local Health District) v Page [2022] NSWPICMP 495

Appeal from assessment of wrists; whether commencement of employment was the relevant date for determining whether there was a pre-existing condition; whether a deduction was available for pre-existing arthritis; Held – Medical Assessment Certificate confirmed.

Decision date: 1 December 2022| Panel Members: Member Richard Perrignon, Dr Gregory McGroder and Dr John Brian Stephenson | Body system: Right and Left Upper Extremity

Singh v East Coast Steel Pty Ltd [2022] NSWPICMP 496

Complex injuries and multiple assessments; appellant submitted the Medical Assessor (MA) erred in two respects, firstly in his assessment of both the upper and lower digestive tracts and secondly with respect to the deduction he made for scarring; Panel accepted error re scarring and upper digestive tract but no errors re lower digestive tract; Held – Medical Assessment Certificate revoked.

Decision date: 2 December 2022| Panel Members: Member Deborah Moore, Dr Neil Berry and Dr David Crocker | Body system: Thoracic and Cervical Spine, Left Upper Extremity, Upper and Lower Digestive Tract, Chest/Sternum and Scarring

Tran v De Angelis t/as Access Metal Fabrication [2022] NSWPICMP 497

Appellant submitted that the assessment of the bilateral shoulder impairment was done on the basis of incorrect criteria and/or there was a demonstrable error as it was not clear if the Medical Assessor (MA) assessed range of motion in each shoulder on each plane of movement; a worksheet was not included in the Medical Assessment Certificate (MAC); it was not clear that a goniometer or inclinometer was used; MA found that there was a full range of shoulder movements and no impairment in either upper extremity; use of worksheet not mandatory; use of goniometer not clinically indicated; Held – Panel found no error and confirmed MAC.

Decision date: 6 December 2022| Panel Members: Member Carolyn Rimmer, Dr Margaret Gibson and Dr Roger Pillemer | Body system: Cervical and Lumbar Spine, Left and Right Upper Extremity and Left Lower Extremity

Muscat v Tuscany Foods Pty Ltd [2022] NSWPICMP 498

Appeal from 0% whole person impairment finding for hernia condition; additional evidence tendered said to show deterioration due to hospitalisation six days prior to the Medical Assessor assessment, and a further hospitalisation four days later in which a spigelian hernia was detected; additional evidence consisted of a further statement from the appellant, the discharge summary from the Hawkesbury Hospital dated 6 June 2022 and 20 June 2022; Held – appellant’s statement rejected as being unreliable; Lukacevic v Coates Hire Operations Pty Limited considered and applied; the two discharge summaries admitted; Medical Assessment Certificate confirmed as hernias the subject of the referral were caused by a straining incident in 2006; the spigelian hernia discovered on 20 June 2022 was  unrelated and diagnosed after an emergency admission for sudden left flank pain; the admission on 7 June 2022 was unrelated to any hernia occurrence or recurrence.

Decision date: 6 December 2022| Panel Members: Member John Wynyard, Dr John Garvey and Dr Mark Burns | Body system: Thoracic Spine and Digestive System

Boga v A La Turko (Retailers & Wholesalers) Pty Limited [2022] NSWPICMP 499

Worker alleges demonstrable error in assignment of classes for Permanent Impairment Rating Scale (PIRS) categories of social and recreational activities and concentration, persistence and pace and in the making a deduction of 1/10th pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for a pre-existing condition; Held – that the history recorded and accepted by the Medical Assessor (MA) was not compatible with assignment of class 2 for Social and recreational activities; Medical Assessment Certificate (MAC) did not demonstrate the actual path of MA’s reasons in accordance with Wingfoot Australia Partners Pty Ltd v Kocak; demonstrable error not proven in respect of assignment of class 2 for concentration or in respect of the deduction for a pre-existing condition; social and recreational activities reassessed as class 3; MAC revoked and new MAC issued.

Decision date: 7 December 2022| Panel Members: Member Paul Sweeney, Dr Nicholas Glozier and Dr Michael Hong| Body system: Psychological/Psychiatric

State of New South Wales (NSW Police Force) v Fryer [2022] NSWPICMP 500

Matter referred to Medical Assessor (MA) for assessment was an injury to the right knee on 13 October 2018; not a section 15 or section 16 of the Workers Compensation Act 1987 injury or a “nature and conditions” injury relating to events over the period of employment; Medical Assessment Certificate (MAC) contained a demonstrable error as the injury assessed (a nature and conditions injury) by the MA was not what was referred for assessment; MA made an error and failed to consider whether any impairment arose out of previous injury, pre-existing condition or abnormality including the injuries in 1989 and 2017 and whether a deduction should be made for a previous injury; Held – MAC revoked.

Decision date: 7 December 2022| Panel Members: Member Carolyn Rimmer, Dr David Crocker and Dr Drew Dixon | Body system: Right Lower Extremity and Scarring

Motor Accidents Merit Review Decisions

Bolat v AAI Limited t/as GIO [2022] NSWPICMR 69

Merit Review; claim for “reasonable and necessary” legal costs for minor injury dispute; physical injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – claimant not awarded maximum regulated legal costs; awarded $1,200 plus GST; parties unable to resolve a dispute over small amount; dispute is in stark contrast to the exhortations contained in the objects of the 2017 Act and section 42 of the Personal Injury Commission Act 2020 which encourages the early resolution of claims and the quick, cost effective and just resolution of disputes; parties have not acted in a way that is proportionate to the importance and complexity of the small amount of legal costs in dispute; the Personal Injury Commission was required to divert its scarce resources to deal with a dispute about a small amount of legal costs; claimant’s solicitors did not provide any detailed description or itemisation of the legal work done by them on the minor injury dispute; claim for additional payment of $302.97 under Schedule 1 Part 2 of the Regulations refused as it relates only to legal services provided in connection with a claim for damages; no exceptional circumstances exist to justify additional legal costs.

Decision date: 18 November 2022| Merit Reviewer: Ray Plibersek

Issa v Allianz Australia Insurance Limited [2022] NSWPICMR 70

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of earner under Schedule 1, clause 2 of the 2017 Act; whether the claimant is an earner; burden of proof; insufficient evidence to establish earner; section 6.24 of the 2017 Act duty to co-operate; failure to co-operate; Held – the reviewable decision is affirmed.

Decision date: 29 November 2022| Merit Reviewer: Katherine Ruschen

AAI Limited t/as AAMI v Tayba [2022] NSWPICMR 71

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); insufficient evidence to establish pre-injury average weekly earnings (PIAWE); section 6.24 of the 2017 Act duty to co-operate; failure to co-operate; whether reasonable excuse; validity of the claim; whether any part of the claim is fraudulent; inconsistent evidence; section 6.3 of the 2017 Act duty to act honestly and not to mislead; duty to disclose all relevant information in a timely manner; Held – the reviewable decision is affirmed.

Decision date: 5 December 2022| Merit Reviewer: Katherine Ruschen

Sharma-Datt v AAI Limited t/as GIO [2022] NSWPICMR 72

Merit Review; claim for “reasonable and necessary” legal costs for minor injury dispute; physical injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – claimant not awarded maximum regulated legal costs; awarded $1,100 plus GST; parties unable to resolve a dispute over small amount; dispute is in stark contrast to the exhortations contained in the objects of the 2017 Act and section 42 of the Personal Injury Commission Act2020 which encourages the early resolution of claims and the quick, cost effective and just resolution of disputes; parties have not acted in a way that is proportionate to the importance and complexity of the small amount of legal costs in dispute; Personal Injury Commission required to divert its scarce resources to deal with a dispute about a small amount of legal costs; claimant’s solicitors did not provide any detailed description or itemisation of the legal work done by them on the minor injury dispute; claim for additional payment of $302.97 under Schedule 1 Part 2 of the Regulations refused as it relates only to legal services provided in connection with a claim for damages; no exceptional circumstances exist to justify additional legal costs.

Decision date: 5 December 2022| Merit Reviewer: Ray Plibersek

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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