Legal Bulletin No. 92

Issued 23 December 2022

Welcome to the ninety-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.

Motor Accidents non-Presidential Member Decisions

Albrecht v AAI Limited t/as GIO [2022] NSWPIC 701

Damages only; cyclist struck by a motor vehicle; whether prior injuries/conditions play a part in his current symptomology; claimant the proprietor of a successful cabinetmaking business; differing opinions from forensic accountants as to the impact of the Claimant’s injury on the business; State of NSW v Moss and Kallouf v Middis at [44]–[61] followed; domestic assistance; section 15(3)(a) of the Motor Accidents Compensation Act 1999; claimant on holidays during the six-month period; Hill v Forrester applied; Held – rejection of insurer’s contention that absence of evidence of economic loss negates an award of loss of earning capacity; on the issue of liability for the claim, the GIO’s 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.

Decision date: 1 December 2022| Member: Robert Foggo

BGF v AAI Limited t/as GIO [2022] NSWPIC 702

Damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; pedestrian; no issue as to liability; tear of hamstring tendons from the ischial tuberosity; overnight in hospital; partial recovery; continuing pain and instability with risk of falls; incapacity to work for more than about 18 hours per week; claimant aged 71 years, working 18 hours per week; Held – settlement of $610,000.00 approved as just, fair and reasonable and within the range of likely outcomes.

Decision date: 7 December 2022| Member: Terence Stern

AAI Limited t/as AAMI v Bakouris [2022] NSWPIC 703

Settlement approval; future economic loss; claimant’s consent; diminution of earnings; Held – the amount of the claim for damages is approved in the total amount of $11,800.

Decision date: 7 December 2022| Member: Hugh Macken

Petrou v QBE Insurance (Australia) Limited [2022] NSWPIC 704

Motor Accident Injuries Act 2017;application by claimant for exemption on basis that claim not suitable for assessment; insurer agrees; claimant injured at work while driving a Toro buggy on the footpath then onto the nature strip where the roll bar of the Toro struck an overhanging branch of a tree and the Toro tipped over; claimant and insurer argued complex issues of liability including whether the accident was a motor accident and whether damages should be paid by the compulsory third party (CTP) insurer or workers compensation insurer; Held – claim not suitable for assessment due to the issues of insurance.

Decision date: 8 December 2022| Member: Belinda Cassidy

QBE Insurance (Australia) Limited v Borham [2022] NSWPIC 705

Motor Accidents settlement approval; 76 year old male pedestrian; struck by a motor vehicle; sustained fracture involving the right sacral ALA and the superior and inferior pubic rami and rotator cuff tear at the left shoulder; allegation of 50% contributory negligence which is considered appropriate in the circumstances of the accident; insurer conceded claimant entitled to damages for non-economic loss, submitted an amount of $250,000,00 for non-economic loss reduced by 50%; Held – this proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017.

Decision date: 9 December 2022| Member: David Ford

Payne v Allianz Australia Insurance Limited [2022] NSWPIC 673

Claims assessment matter; claim for damages was referred to the Personal Injury Commission under Division 7.6  of the Motor Accident Injuries Act 2017 (2017 Act)for assessment; no evidence provided when claim was lodged three days before expiry of limitation period; insurer disputed genuine attempt to settle; whether the claimant had complied with section 7.32(3) of the 2017 Act by requesting a settlement conference; meaning of “best endeavours”; whether proceedings should be dismissed; Held –for the purposes of section 7.32(3) of the 2017 Act the claimant failed to use his best endeavours to settle the claim before referring it for assessment under Division 7.6 of the 2017 Act; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020.

Decision date: 11 December 2022| Member: Shana Radnan

Halkas v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 711

Motor Accidents claims assessment; dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36 (4) of the Motor Accident Injuries Act 2017; motor vehicle being driven by the insured’s driver unexpectedly reversed and caught the claimant by the car door and dragged the claimant across the street suffering serious injuries; insured admitted liability and no allegation for contributory negligence; claimant suffered fracture of the C4 vertebrae, right sided vertebral artery damage and soft tissue injury to his right ankle and right arm; claimant subsequently underwent surgery in the form of posterior C4-5 instrumented fusion; insurer concede claimant’s whole person Impairment exceeded the threshold; claimant is an employed motor mechanic; claim for non-economic loss, past and future economic loss; Held – claimant entitled to damages for non-economic loss, past and future economic loss.

Decision date: 16 December 2022| Member: David Ford

Lee v Allianz Australia Insurance Limited [2022] NSWPIC 712

Miscellaneous claims assessment; whether, for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017, the accident was caused wholly or mostly by the fault of the claimant; collision as claimant was emerging from parked position onto the road; left side of insured vehicle collided with driver’s side of claimant’s vehicle; claimant issued with infringement notice in connection with the accident; fine contested in Local Court; infringement dismissed by Local Court; Held – accident found to have been caused by the fault of both drivers; claimant’s fault was the primary cause of the accident; claimant’s contributory negligence was greater than 61%; accident found to have been caused mostly by the fault of the claimant.

Decision date: 16 December 2022| Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Green v Secretary (Transport for NSW) [2022] NSWPIC 713

Suitable employment; compensation after the second entitlement period; work capacity decision identified three roles which the worker’s general practitioner approved; Wollongong Nursing Home v Dewar referred to; relevance of worker’s opinion as to capacity; Bakerv Southern Metropolitan Cemetery Trust discussed; Held – award for the respondent.

Decision date: 30 November 2022| Member: Catherine McDonald

Barden v Walgett Shire Council [2022] NSWPIC 706

Claim for psychological injury; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act);consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence and factual material; consideration of the reliability of evidence; Withyman v State of New South Wales and Paric v John Holland (Constructions) Pty Limited considered; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b) of the 1987 Act in relation to which his employment with the respondent was the main contributing factor; AV v AW and Attorney General’s Department v K considered; consideration of whether the respondent can establish (pursuant to section 11A of the 1987 Act) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Hamad v Q Catering Limited and ACR v Grace Worldwide Pty Limited considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 14 April 2021; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act; Held – the applicant contracted a ‘disease’ injury pursuant to section 4(b) of the 1987 Act, in relation to which his employment with the respondent was the main contributing factor; the injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with section 15(1)(a)(i) of the 1987 Act; the respondent has failed to establish (pursuant to section 11A of the Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; the applicant was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021; during that period he had no current work capacity; the applicant has otherwise failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021; the applicant is entitled to have his reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April 2021; award for the applicant pursuant to sections 36 and 37 of the 1987 Act between 14 April 2021 and 17 September 2021, award for the respondent thereafter; award for the applicant pursuant to section 60 of the 1987 Act.

Decision date: 8 December 2022| Member: Gaius Whiffin

A1 Granny Flats v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 707

Application pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act) by uninsured employer; applicant disputed notice of injury, injury, date of injury, substantial contributing factor, causation, whether it was the last relevant employer, capacity for work and the reasonable necessity of medical treatment and amount paid; applicant relied on section 11A of the 1987 Act in respect of provision of employment benefits; applicant submitted second respondent had told a “litany of lies”; consideration of Inghams Enterprises Pty Ltd v Thoroughgood, Hamad v Q Catering Limited, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Alto Ford Pty Ltd v Antaw, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Kooragang Cement Ltd v Bates, Poonan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Manly Pacific International Hotel Pty Ltd v Doyle and New South Wales Police Force v Winter; Held –the application is dismissed; the applicant is to reimburse to the first respondent the sum of $110,766.81 in accordance with the notice issued pursuant to section 145 of the 1987 Act.

Decision date: 9 December 2022| Senior Member: Kerry Haddock

Tyagrah Holdings Pty Limited v Workers Compensation Nominal Insurer & Anor [2022] NSWPIC 708

Claim pursuant to section 145(3) of the Workers Compensation Act 1987 (1987 Act) challenging notice requiring repayment of compensation payments made by nominal insurer to a worker; applicant placed worker, deemed worker, injury, notice and reasonableness of payments in dispute; there is no issue the applicant was uninsured at the date of injury; it also alleged it was an exempt employer pursuant to section 155AA of the 1987 Act; Held – the second respondent was a worker, or a deemed worker employed by the applicant at the time he suffered injury to his left shoulder on 12 March 2019; the applicant was not an exempt employer at the time of the injury; the claim made by the second respondent was reasonably accepted by the first respondent and the payments made pursuant to that claim were reasonable; the issuing of a prior section 145 of the 1987 Act notice which was withdrawn does not prevent the payments listed in that prior notice from being contained in and subsumed by the notice at issue in these proceedings; award for the respondents.

Decision date: 12 December 2022| Member: Cameron Burge

Stapleton v PSGA Pty Limited [2022] NSWPIC 709

Umbilical hernia from frank injury developed over subsequent 15-18 month period; section 261 of the Workplace Injury Management & Workers Compensation Act 1998; sections 4 and 59A of the Workers Compensation Act 1987 (1987 Act); Held – applicant had no legal rights to pursue until expiration of 15-18 month period; alternatively claim exempt for ignorance or other reasonable cause as employer failed to pass on to insurer notification of injury; general order made for past section 60 of the 1987 Act expenses and sentiment expressed regarding Flying Solo Properties v Collett in respect of future surgery.

Decision date: 12 December 2022| Member: Phillip Young

Motor Accidents Medical Review Panel Decisions

Metlej v AAI Limited t/as AAMI [2022] NSWPICMP 479

This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of right shoulder and right arm pain following the motor accident and submitted he sustained non-minor injuries a rotator cuff tear injury in the right shoulder and right arm nerve tear; subsequent scan evidence showed complete transverse tear in right shoulder; right arm injury soft tissue; lack of early complaints; Bugat v Fox considered; original Medical Assessor opined on accident mechanism; Makita (Australia) Pty Ltd v Sprowles considered; Held – the Panel satisfied the claimant suffered a right shoulder tear in the motor accident as scans showed changes; Panel not satisfied the claimant had right arm nerve injury following the motor accident; the accident caused the right shoulder tear; non-minor injury under section 1.6 of the Motor Accident Injuries Act 2017.

Decision date: 24 November 2022| Panel Members: Member Terence O’Riain, Dr Drew Dixon and Dr Shane Moloney | Injury module: Upper Limb

Davidson v Allianz Australia Insurance Limited [2022] NSWPICMP 501

Claimant was injured on 13 June 2018; impact between two cars when the insured car turned right across the car in which the claimant was travelling; claimant suffered a fractured ankle and soft tissue injuries to her foot as well as scarring to her foot; decision of Medical Assessor reviewed; claimant has ongoing difficulties with her ankle which limits her ability to walk and stand; consideration of whether an articular or intra-articular fracture occurred; Held – finding by the Panel that the fracture of the talus did not involve an articulating surface; Whole Person Impairment (WPI) of right ankle assessed at 4% and scarring assessed at 2% equating to a total of 6% WPI.

Decision date: 1 December 2022| Panel Members: Member Alexander Bolton, Dr Michael Couch and Dr Paul Curtin | Injury module: Lower Limb and Minor Skin

Workers Compensation Medical Appeal Panel Decisions

Egan v Secretary (Department of Communities and Justice) [2022] NSWPICMP 336

Appeal by worker in respect of Medical Assessment Certificate (MAC) issued on the grounds of conflict of interest and apprehension of bias on the part of the Medical Assessor (MA) who examined the worker and issued the MAC; the MA was a Visiting Medical Officer, for at least part of the time, at the establishment where the worker was employed, knew some of the executive staff including the Governor, and made known this information to the worker during the course of the examination; the worker had a poor relationship with the Governor, and had made complaints about her during the course of his employment, which were recorded in the MAC; the worker also took issue with four of the Permanent Impairment Rating Scale (PIRS) assessments by the MA; the Appeal Panel admitted fresh evidence, in the form of a statutory declaration by the worker and the curriculum vitae of the MA which confirmed his engagement at the establishment where the worker was employed; Held – the Appeal Panel determined that the worker should be examined by a MA member of the Panel; the MAC was revoked and new MAC issued.

Decision date: 22 August 2022| Panel Members: Member Brett Batchelor, Dr Nicholas Glozier and Dr Patrick Morris | Body system: Psychological/Psychiatric

Scimone v Godolphin Australia Pty Ltd [2022] NSWPICMP 502

The appellant submitted that the Medical Assessor (MA) erred in failing to consider the report of Dr Bodel regarding radiculopathy; Panel accepted that the MA did not refer to Dr Bodel’s report; however, the Panel noted that Dr Bodel had seen the appellant some 16 months prior to the MA and had in fact predicted continuing improvement; the MA’s findings on the day confirmed that improvement; Held – Medical Assessment Certificate confirmed.

Decision date: 6 December 2022| Panel Members: Member Deborah Moore, Dr Drew Dixon and Dr Mark Burns | Body system: Lumbar Spine and Scarring

Brinkman v Exchange House Services Australia Pty Ltd (Herbert Smith Freehills) [2022] NSWPICMP 503

Appeal from failure by Medical Assessor (MA) to assess shoulder injuries; referral in general terms of upper extremities only; MA determined liability regarding shoulders by finding no causal relationship with injury; Held – original referral confined by parenthesis to elbows only; appellant objected on basis that shoulders were also to be assessed; respondent agreed to amendment of referral on general description; MA made demonstrable jurisdictional error; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffarie v Quality Castings Pty Ltd considered and applied; evidence showed agreement as to referral of shoulders as well; Skates v Hills Industries Ltd applied; Medical Assessment Certificate revoked and fresh certificate issued based on MA’s findings on shoulder range of motion.

Decision date: 6 December 2022| Panel Members: Member John Wynyard, Dr John Brian Stephenson and Dr Mark Burns | Body system: Cervical Spine, Right and Left Upper Extremity

Shannon v Woolworths Group Limited [2022] NSWPICMP 504

The appellant submitted that the Medical Assessor (MA) erred in failing to take into account the muscle wasting of both the thigh and calf of the left lower extremity and failed to provide reasons for not doing so; further, the MA erred in failing to take into account his findings in relation to plantar flexion when assessing the left lower extremity; Held – Panel found thigh wasting unrelated to ankle injury and no error in the plantar flexion assessment of the left lower extremity; Medical Assessment Certificate confirmed.

Decision date: 8 December 2022| Panel Members: Member Deborah Moore, Dr Margaret Gibson and Dr Roger Pillemer| Body system: Lumbar Spine, Right and Left Lower Extremity

Smith v Strathfield Council [2022] NSWPICMP 505

Psychological injury; additional relevant material; application to rely on statements going to conduct of examination; Petrovic v BC Serve No 14 Pty Ltd, State of NSW v Ali and Lukacevic v Coates Hire Operations Pty Ltd discussed; application of Permanent Impairment Rating Scale (PIRS); Ferguson v State of NSW and Parker v Select Civil Pty Ltd applied; Held – Medical Assessment Certificate confirmed.

Decision date: 8 December 2022| Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Nicholas Glozier| Body system: Psychological/Psychiatric

Meremere v Symbion Pty Ltd [2022] NSWPICMP 506

Appeal against half section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for pre-existing condition of obesity; appellant injured ankle and suffered a significant increase in his weight to the extent that bariatric was necessitated; appellant claimed the ankle injury had restricted his usually active life and whilst he had been obese at the time of the ankle injury, his restriction in motion had caused his weight to reach a point of morbid obesity; Held – Cole v Wenaline Pty Ltd and Fardell v Clinton Industries Pty Ltd considered and applied; relevant injury was to the digestive system; appellant’s obesity a relevant pre-existing condition, and significant in contributing to the morbid obesity that required surgical correction; Medical Assessment Certificate confirmed.

Decision date: 9 December 2022| Panel Members: Member John Wynyard, Dr John Garvey and Dr Mark Burns| Body system: Left Lower Extremity and Digestive

Ingegneri v The Peninsula Montessori Association Ltd [2022] NSWPICMP 507

Appeal from 10% whole person impairment (WPI) assessment; arithmetical error alleged; whether corrected calculation increased entitlement; Held – respondent conceded mathematical error but Medical Assessor had not considered contralateral joint pursuant to Chapter 2.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; contralateral baseline limited by 4% upper extremity impairment; Medical Assessment Certificate revoked and 9% WPI substituted.

Decision date: 12 December 2022| Panel Members: Member John Wynyard, Dr Greg McGroder and Dr Roger Pillemer| Body system: Cervical Spine, Right Upper Extremity and Scarring

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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