Legal Bulletin No. 85

Issued 4 November 2022

Welcome to the eighty-fifth 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.

Presidential Member Decision

Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39

Workers Compensation; applications involving federal jurisdiction; Division 3.2 of the Personal Injury Commission Act 2020; application of Citta Hobart Pty Ltd v Cawthorn and associated authorities.

Decision date: 21 October 2022 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Estphan v AAI Limited t/as AAMI (No 1) [2022] NSWPIC 580

Interim decision; application for an adjournment to allow for determination of whole person impairment under Division 7.5 of the Motor Accidents Injuries Act 2017; consideration of the Motor Accidents Guidelines clauses 8.8 to 8.10 regarding joint medico-legal report obtained by parties in proceedings; insurer did not raise dispute to joint medico-legal report within statutory timeframe;  whether in the absence of contradicting opinion there is a medical dispute between claimant and insurer about a medical assessment matter; Held – determined no medical dispute.

Decision date: 19 May 2022| Member: Bridie Nolan

Isho v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 581

General assessment; application for personal injury benefits; request for particulars pursuant to section 6.25 of the Motor Accidents Injuries Act 2017 (2017 Act); insurer issued “direction to produce particulars” pursuant to section 6.26(1)(2) of the 2017 Act; claimant’s response to direction rejected on grounds that they were not adequate particulars; requirements of direction under section 6.26 of the 2017 Act discussed; deemed withdrawal; application for reinstatement of proceedings; whether full and satisfactory explanation for failure to provide required particulars; whether total damages of all kinds likely to be awarded to the claimant if claim succeeds are not less than 25% of maximum amount that may be awarded for non-economic loss as at the date of the motor accident; Held – reinstatement allowed.

Decision date: 12 August 2022| Member: Bridie Nolan

Estphan v AAI Limited t/as AAMI (No 2) [2022] NSWPIC 582

Interim decision; application to admit late documents being evidence of medico-legal professional giving rise to “medical dispute”; medical practitioner authorised to give evidence for the purposes of section 7.52 of the Motor Accident Injuries Act 2017 (2017 Act); consideration of sections 67(4) and 67(5) of the Personal Injury Commission Act 2020; Held – matter referred for determination of medical assessment under section 7.20 of the 2017 Act.

Decision date: 25 August 2022| Member: Bridie Nolan

Evans v QBE Insurance (Australia) Limited [2022] NSWPIC 583

Non-economic loss; future economic loss; settlement approval; dispute resolution; Held – the amount of the claim for damages is approved in the total amount of $266,755.57.

Decision date: 12 October 2022| Member: Hugh Macken

Luo v AAI Limited t/as AAMI [2022] NSWPIC 584

Claims assessment application; whether claimant had used “best endeavours” to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017; meaning of “best endeavours”; test of what is reasonable in the circumstances; Transfield v Arlo applied; Held- “best endeavours” places obligation on claimant to facilitate an opportunity for settlement discussions; claimant did what he reasonably could in circumstances to settle the claim; application to dismiss application declined.

Decision date: 18 October 2022| Member: Terence Stern

Stevenson v Allianz Australia Insurance Limited [2022] NSWPIC 592

Motor Accident Injuries Act 2017; claim for statutory benefits and dispute about whether the claimant wholly or mostly at fault; claimant a resident of Queensland who collided with a Rural Fire Service vehicle which, under the Road Transport (Vehicle Registration) Regulation was not required to be registered; claim therefore made again the Nominal Defendant; no appearance by claimant at teleconference; Held – the proceedings were federally impacted proceedings and application dismissed; subject of the proceedings was a dispute between a resident of one state (Mr Stevenson) and another state (SIRA as the Nominal Defendant).

Decision date: 25 October 2022| Member: Belinda Cassidy

Insurance Australia Limited t/as NRMA Insurance v Burgoyne [2022] NSWPIC 593

Damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; claimant born in July 2003; passenger in motor vehicle which struck two trees; left sided hearing loss; cochlear implant; compression fracture of T11; psychiatric injury; major depression; able to work 4 days per week; offer of $890,000; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 26 October 2022| Member: Terence Stern

Workers Compensation non-Presidential Member Decisions

Stock & Station Aviation Pty Ltd v BBT & Ors [2022] NSWPIC 527

Lump sum death benefit; apportionment; Held – the first, second and third respondents were dependent upon the deceased (BFA) at the date of his death in May 2021; there was no other person who was dependent upon the deceased at the date of death.

Decision date: 23 September 2022| Senior Member: Elizabeth Beilby

Parramatta City Council v BBU & Ors [2022] NSWPIC 529

Application for apportionment of lump sum death benefit and orders with respect to payment; identification of dependants; application for interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – the respondents were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 29(1), 85 and 85A of the 1998 Act; interest to be paid at agreed rate.

Decision date: 26 September 2022| Member: Rachel Homan

Delta Services Pty Ltd v BBV & Ors [2022] NSWPIC 551

Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987; consideration of Aafjes v Kearney, Wratten v Kirkpatrick, TNT Group 4 Pty Limited v Halioris, Sadiq v NSW Trustee & Guardian, Holdlen Pty Limited v Walsh, McCafferty’s Management Pty Ltd v Pimlott and So v So; claim for interest made by first respondent for the first time in making submissions on apportionment; applicant does not oppose leave being granted to claim interest but opposes claim should leave be granted; Held – leave granted to first respondent to claim interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; orders made for apportionment and payment of lump sum to avoid further delay and claim for interest to be determined separately.

Decision date: 7 October 2022| Senior Member: Kerry Haddock

Grace v Aruma Services [2022] NSWPIC 585

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 statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the respondent can establish (pursuant to section 11A of the 1987 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 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, State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K, Hamad v Q Catering Limited and Baker v Southern Metropolitan Cemeteries Trust considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of her psychological injury since 3 November 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 respondent has failed to establish its defence under section 11A of the 1987 Act; applicant had no current work capacity until 1 February 2022; applicant’s current weekly earnings since 1 February 2022 are $558; award for the applicant pursuant to sections 36(1), then 37(2), and then 37(3) of the 1987 Act; award that the respondent pay the applicant’s treatment expenses pursuant to section 60 of the 1987 Act.

Decision date: 21 October 2022| Member: Gaius Whiffin

Naidu v Toll Transport Pty Ltd t/as Global Express Parcels [2022] NSWPIC 586

Claim for weekly benefits and medical expenses for alleged injuries to cervical spine and left upper extremity; liability denied for each injury and incapacity for employment also disputed; Held - the applicant suffered injury to her cervical spine by way of aggravation to underlying degenerative changes to which her employment was the main contributing factor; the effects of the aggravation to the cervical spine are ongoing; the applicant suffered frank injury to her left upper extremity (shoulder and elbow) in the course of her employment with the respondent; the respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of both injuries including the costs of and incidental to the proposed cervical fusion surgery; as a result of her injuries the applicant has partial incapacity for employment to work 15 hours per week on suitable duties for the period claimed in the Application; respondent to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $460.60 from 31 March 2022 to date and continuing.

Decision date: 21 October 2022| Member: Cameron Burge

Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587

Applicant sustained physical and psychological injuries when she intervened in a dog attack at her home; applicant permitted to work from home and performing work duties when the attack commenced; whether “in the course of employment”; whether employment was a “substantial contributing factor” to the injury; Bill Williams Pty Ltd v Williams; Blacktown City Council v Smith discussed;Held – the attack occurred in the workplace; the applicant’s intervention in the dog attack to protect her daughter’s puppy was a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances; the applicant remained “in the course of employment” at the time of the injury; the puppy was tied up outside in order to facilitate a quiet and appropriate workplace in which to take work calls; employment a substantial contributing factor to the injury; awards in favour of the applicant.

Decision date: 24 October 2022| Member: Rachel Homan

Govindan v Capital Safety Group (Australia) Pty Limited [2022] NSWPIC 588

Claim for permanent impairment with respect to three consequential conditions allegedly arising from accepted left shoulder injury; applicant alleges right shoulder and cervical spine consequential conditions due to overuse and gastro-intestinal condition due to ingestion of pain killing medication; Held – the applicant suffered a consequential condition to his right upper extremity (shoulder) due to overuse as a result of his left shoulder injury; the evidence does not support a finding of consequential condition to the cervical spine; rather, such evidence as there is supports a finding of referred pain from the right shoulder condition to the neck; award for the respondent on the claim for cervical spine consequential condition; the evidence does not support the finding of a causal link between the taking of pain killers and any gastro-intestinal issues in the applicant; award for the respondent on the claim for consequential condition to the digestive system; claim for permanent impairment compensation to the right upper extremity (shoulder) remitted to the President for referral to a Medical Assessor.

Decision date: 24 October 2022| Member: Cameron Burge

Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 589

Application pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act)brought by the applicant, an uninsured employer, disputing the notice for reimbursement served on it by the Workers Compensation Nominal Insurer; issue in dispute was whether the worker sustained an injury in the course of his employment with the applicant; Held – pursuant to section 4(b) of the 1987 Act the worker sustained an injury to his lumbar spine in the course of his employment with Sonika Australia Pty Ltd with his employment being the main contributing factor to the contraction or aggravation of the disease injury; pursuant to section 145(4) of the Workers Compensation Act 1987 Sonika Australia Pty Ltd is to reimburse the Workers Compensation Nominal Insurer the amount notified of $80,383.44.

Decision date: 24 October 2022| Principal Member: Josephine Bamber

Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590

Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 between widow and infant children; issue also relating to awarding of interest under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; Haidary v Wandella Pet Food Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd and Ruby v March considered; Held –  discretion exercised to award interest at 2% above the Reserve Bank of Australia cash rate applicable to the period in 2022 for which interest allowed.

Decision date: 25 October 2022| Principal Member: Josephine Bamber

Dangol v Action Workforce ACT Pty Ltd [2022] NSWPIC 591

Claim for the cost of proposed lumbar decompression surgery; injury and causation admitted however respondent declines liability and alleges surgery not reasonably necessary; Held – the proposed surgery is reasonably necessary as a result of the accepted injury; Diab v NRMA Limited and Rose v Health Commission (NSW) applied; respondent is to pay the costs of and incidental to the proposed surgery.

Decision date: 25 October 2022| Member: Cameron Burge

Orr v Rostin Pty Ltd t/as Highland Glass [2022] NSWPIC 594

Order sought by worker for the respondent to meet cost of C4/5 anterior cervical decompression and fusion; worker provides three possible causes of injury for condition affecting the cervical spine; reference to AV v AW and State Transit Authority v El-Achi on claim of disease injury to the cervical spine; Held – worker has sustained a condition affecting his cervical spine as a consequence of an injury to the right forearm but that injury does not materially contribute to the need for surgery; award for the respondent for a claim for a frank injury to the neck; worker sustained a disease injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) and that injury materially contributes to the need for surgery; order made pursuant to section 60(5) of the 1987 Act.

Decision date: 26 October 2022| Member: John Isaksen

Voudouris v TDV Constructions Pty Ltd [2022] NSWPIC 596

Application for assessment by a Medical Assessor (MA) as to whether the worker’s degree of permanent impairment is more than 20%; section 39 of the Workers Compensation Act 1987 (1987 Act); worker sought referral in respect of accepted orofacial and lumbar spine assessed on his behalf at 0% whole person impairment; Abou-Haidar v Consolidated Wire Pty Ltd, Woolworths Limited v Stafford, Sukkar v Adonis Electrics Pty Ltd, Shankar v Ceva Logistics (Australia) Pty Ltd, Skates v Hills Industries Ltd, Apps v Secretary, Department of Communities and Justice, Guzman v Trade West Pty Ltd, Caulfield v Kartaway Pty Ltd and Etherton v ISS Property Services Pty Ltd considered; Held – the orofacial and lumbar spine injuries cannot be included in a referral to a MA for assessment; the right upper extremity (right elbow), left upper extremity (left wrist and left index finger), right lower extremity (right femur and right knee) and the skin (scarring, TEMSKI) remitted to the President for referral to a MA pursuant to the Workplace Injury Management and Workers Compensation Act 1998 for assessment as to whether the degree of permanent impairment is more than 20%; section 39 of the 1987 Act.

Decision date: 25 October 2022| Member: Anthony Scarcella

Nand v Toll Transport Pty Ltd [2022] NSWPIC 595

Claim for permanent impairment compensation in relation to alleged psychological injury; whether applicant suffered a psychological injury; if so, whether that injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline and/or dismissal; Held – the applicant suffered a psychological injury in the course of his employment to which his employment was the main contributing factor; Attorney General’s Department v K and State Transit Authority of NSW v Chemler followed and applied; the causes of the applicant’s injury were multi-factorial including matters which in no way relate to the issues which the respondent raises in support of its defence under section 11A of the Workers Compensation Act 1987 (1987 Act); the respondent’s defence under section 11A of the 1987 Act is not made out; the matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the psychological injury.

Decision date: 26 October 2022| Member: Cameron Burge

Motor Accidents Medical Review Panel Decisions

Meggitt v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 530

Medical Review Panel; Motor Accident Injuries Act 2017; minor injury; permanent impairment; whole person impairment; total right hip replacement surgery; cervical spine; lumbar spine; scarring; causation; Held – the Review Panel revokes the Certificate of Medical Assessor Cameron dated 6 April 2022 and issues a new Certificate.

Decision date: 17 October 2022| Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Chris Oates | Injury module: Spine, Lower Limb and Skin

Aria v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 406

Motor Accident Injuries Act 2017 (2017 Act);Medical Review Panel matter; claimant’s application for review of original Medical Assessor’s (MA) Certificate that a contusion to the left kidney caused by the motor accident was a minor injury; Held –the Panel found that incomplete hospital records had been available to the parties and original MA; complete records produced at the Panel’s direction which contained relevant urine testing showing no abnormalities; no evidence of injury to the abdomen found on examination at the hospital; Certificate revoked; replacement Certificate issued finding the motor accident did not cause the claimant to suffer from a contusion to his left kidney.

Decision date: 17 October 2022| Panel Members: Principal Member Josephine Bamber, Dr Neil Berry and Dr Michael Rochford | Injury module: Urology Male

Choi v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 407

The claimant suffered psychological injury in a motor accident on 23 April 2017 (the motor accident); the psychological condition caused by the motor accident was aggravated by a subsequent motor accident in December 2017; the issue was the extent of any permanent impairment of psychiatric injury caused by the motor accident; the claimant was re-examined by both Medical Assessors and assessed at 17% whole person impairment (WPI); the claimant was diagnosed with persistent depressive disorder with anxious distress which had been exacerbated by the subsequent motor accident; reference to Slade v Insurance Australia Ltd which held that any deduction under Clause 1.34 of the Motor Accident Permanent Impairment Guidelines (Guidelines) for subsequent injuries dependent upon the application of the principles discussed in State Government Insurance Commission v Oakley (Oakley); Panel found that second accident aggravated the condition (second Oakley category); impairment assessment undertaken at the time of the examination and not by reference to the condition at the time of the subsequent accident; GIO v Smith applied; findings made that injury to the neck and right shoulder caused by the subsequent motor accident had resolved; the claimant had sustained injuries to the low back and left shoulder caused by the motor accident; the effects of these injuries were ongoing; Clause 1.34 of the Guidelines (unlike Clause 1.31) did not require a deduction to be made; the making of a specific deduction under Clause 1.34 was problematic given the difficulties in articulating a proper basis for any specific amount in circumstances where the second category in Oakley applied; in the circumstances where there has been a resolution of physical symptoms from the subsequent accident; no deduction made; Held – claimant’s WPI assessed at greater than 10%.

Decision date: 18 October 2022| Panel Members: Principal Member John Harris, Dr Samuel Lim and Dr Thomas Newlyn | Injury module: Mental and Behavioural

Pavlovic v AAI Limited t/as AAMI [2022] NSWPICMP 408

The claimant suffered injury in a motor accident on 20 November 2017; the issue was the extent of any permanent impairment of psychiatric injury; the claimant was re-examined by both Medical Assessors and did not admit to prior psychological injury despite reported histories over three years in the early 2000’s; the claimant was diagnosed with an adjustment disorder and somatic symptom disorder; permanent impairment assessed at 8% with an allowance for treatment effects; observations made of the claimant’s unsatisfactory responses to questioning showing a degree of evasiveness; Held – claimant’s whole person impairment assessed at not greater than 10%.

Decision date: 19 October 2022| Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Atsumi Fukui | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance Rima [2022] NSWPICMP 409

Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the 1999 Act; original Medical Assessor (Home) had assessed WPI at 12% due to injuries to shoulders (4% plus 4%) and knees (2% plus 2%); other injuries to be considered included cervical, thoracic and lumbar spine; issues concerning shoulder included the nature of the injury and the cause of any impairment and the cause of any knee impairment noting a delay in complaint and a constitutional maltracking patella; Held – neck and back assessed at diagnosis related estimate (DRE) I; shoulder impairment caused by inactivity and stiffness related to original neck injury; soft tissue injury to knees in the accident but any current issues five years post-accident due to constitutional issue and work and lifestyle matters.

Decision date: 19 October 2022| Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Cundy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 414

The claimant suffered injury in a motor accident on 7 July 2019 when he was riding a bicycle and struck by the insured vehicle; the issue was the extent of permanent impairment; the claimant sustained compound fractures of the right tibia and fibula and soft tissue injuries to the right knee and low back caused by altered gait from the right leg limp; right lower extremity assessed at 6%; no assessable impairment of the scar based on a best fit principle; low back assessed at diagnosis related estimate (DRE) I and assessed at 0% due to full movement and lack of other signs; Held – claimant reassessed at 6% permanent impairment.

Decision date: 21 October 2022| Panel Members: Principal Member John Harris, Dr Neil Berry and Dr David Gorman | Injury module: Spine, Lower Limb and Minor Skin

Pennicuik v QBE Insurance (Australia) Limited [2022] NSWPICMP 415

The claimant suffered injury in a motor accident on 8 February 2017; medical dispute under the Motor Accidents Compensation Act 1999 (1999 Act) about whether the motor accident caused permanent impairment greater than 10%; both Medical Assessors examined and assessed the claimant; assessment found no nexus with the claimant's left shoulder and right big toe conditions to the accident; right shoulder injury had resolved; cervical spine assessed with 5% permanent impairment; no statement of principle; Held – claimant reassessed at 5% permanent impairment; previous Certificate revoked.

Decision date: 21 October 2022| Panel Members: Member Terence O’Riain, Dr Shane Moloney and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb

Aleksic v QBE Insurance (Australia) Limited [2022] NSWPICMP 416

The claimant suffered an injury on 24 February 2020 when a kangaroo collided with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 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 Motor Accident Guidelines (Guidelines); the right knee complaint was not radiculopathy and represented longstanding pathology associated with prior knee replacement; the reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in Clause 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 confirmed; findings made that claimant sustained a minor injury to the cervical and lumbar spines ; Held – Medical Assessment Certificate confirmed.

Decision date: 21 October 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Aleksic v AAI Limited t/as GIO [2022] NSWPICMP 417

The claimant suffered injury in a motor accident on 1 February 2020 when the insured vehicle collided into the passenger side of the claimant’s vehicle (the motor accident); the claimant suffered a further injury on 24 February 2020 when a kangaroo collided with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 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 Motor Accident Guidelines (Guidelines); the right knee complaint was not radiculopathy and represented longstanding pathology associated with prior knee replacement; the reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in Clause 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 confirmed; findings made that claimant sustained a minor injury to the cervical and lumbar spines; Held – Medical Assessment Certificate confirmed.

Decision date: 21 October 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Macbeth v Farmland Management Services Australia Pty Ltd [2022] NSWPICMP 410

Worker appeals from determination by Medical Assessor (MA) of whole person impairment resulting from injury to the skin; Held – the MA erred in assessing scarring in accordance with Table 14.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed 1 April 2016) (Guidelines) (TEMSKI) without considering the criteria for classification of skin disorders in Table 8-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA5); after re-examination Medical Assessment Certificate (MAC) revoked and new MAC issued for 12% WPI (Class II of Table 8-2 of AMA5).

Decision date: 20 October 2022| Panel Members: Member Paul Sweeney, Dr Paul Curtin and Dr Michael McGlynn | Body system: Skin

Templeton v Corrective Services NSW [2022] NSWPICMP 411

Injury to right ankle and consequential condition in left ankle; scarring omitted from referral; Medical Assessor failed to consider diagnosis of Chronic Regional Pain Syndrome and to assess left ankle; re-examination required; Elsworthy v Forgacs Engineering Pty Ltd applied; Held – Medical Assessment Certificate revoked.

Decision date: 21 October 2022| Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Brian Stephenson | Body system: Right and Left Lower Extremity and Skin (TEMSKI)

Cerebral Palsy Alliance Australia v Clarke [2022] NSWPICMP 412

The appellant submits that the Medical Assessor (MA) erred in failing to make any deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and failed to properly assess activities of daily living (ADLs); Held – Panel agreed; extensive evidence of prior injuries not noted by the MA; MA’s reasons regarding ADLs brief but adequate; Medical Assessment Certificate revoked.

Decision date: 21 October 2022| Panel Members: Member Deborah Moore, Dr David Crocker and Dr Roger Pillemer | Body system: Cervical and Lumbar Spine, Right and Left Upper Extremity

Toll Transport Pty Ltd v Manson [2022] NSWPICMP 413

Injury to lumbar spine requiring surgery after a period of conservative treatment; employer argued that reference to degenerative changes on scans required section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; no medical evidence making section 323 of the 1998 Act deduction; Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse considered and applied; Held – Medical Assessment Certificate confirmed.

Decision date: 21 October 2022| Panel Members: Member Catherine McDonald, Dr David Crocker and Dr J Brian Stephenson | Body system: Lumbar Spine and Skin

Kacevski v Medina Property Services Pty Ltd [2022] NSWPICMP 418

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) entitled rely on clinical findings on day of examination and MA found the criteria for radiculopathy not satisfied; Held – the assessment was made on the basis of correct criteria and there was no error; Medical Assessment Certificate confirmed.

Decision date: 24 October 2022| Panel Members: Member Jane Peacock, Dr Roger Pillemer and Dr John Brian Stephenson | Body system: Lumbar Spine and Right Lower Extremity

Hesketh v Sunnyfield [2022] NSWPICMP 419

Appeal by worker against Medical Assessor’s (MA) finding of no Maximum Medical Improvement (MMI); whether application of chapter 1.15 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) demonstrated that MMI had occurred when consideration given to relevant facts; whether MA diverted by confusion about causation; Held – contemporaneous medical reports showed the worker’s condition to have been well stabilised for almost 2 years and that the medical treatment referred to by the MA had already been given; it was accordingly unlikely that the condition would change in the next 12 months; MA failed to adequately explain his reasons; MA may also have been diverted from his task by irrelevant concerns as to causation; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, Jaffarie v Quality Castings Pty Ltd and Skates v Hills Industries Ltd considered; error established and worker re-examined by Panel member; Medical Assessment Certificate revoked and award for 24% substituted.

Decision date: 24 October 2022| Panel Members: Member John Wynyard, Dr Patrick Morris and Dr Douglas Andrews | Body system: Psychiatric/Psychological

Chowdhury v Ali [2022] NSWPICMP 420

Dispute referred respect of injury to the lumbar spine (including corticospinal tract impairment), the cervical spine and the digestive system (fatty liver, upper digestive tract, colon, rectum and anus); lead Medical Assessor (MA) declined to assess the lumbar spine and cervical spine noting “there is a question of myelomalacia” which required assessment by a neurologist or neurosurgeon; further referral to a neurologist MA limited to “myelomalacia of the spinal cord”; neurologist MA assessed 0%  whole person impairment (WPI) in respect of the cervical spine and the lumbar spine on the basis that subject injury was confined to musculoligamentous strain and impairment did not result from the subject injury; appellant worker appealed submitting that the MA should not have assessed the lumbar spine or cervical spine but should have confined himself to the terms of the referral; Held – the Panel noted that the lead MA had not assessed the cervical spine or lumbar spine and the neurologist MA had correctly assessed the appellant worker in accordance with the original referral; Skates v Hills Industries Ltd and Yates v Flavorjen Pty Ltd applied; appellant worker further submitted that the neurologist MA had fallen into error in finding that the original injury was confined to musculoligamentous strain when the parties had agreed that there was corticospinal impairment to be assessed; that ground was established; the appellant worker was reassessed following examination by a Panel member; the Medical Assessment Certificate (MAC) issued by the neurologist MA was revoked and a fresh MAC issued which incorporated the impairments assessed in the MAC which the lead MA had issued in respect of the digestive system and sexual organs.

Decision date: 25 October 2022| Panel Members: Member William Dalley, Dr Robin Fitzsimons and Dr John Ashwell | Body system: Lumbar spine (including corticospinal impairment), Sexual Organs and Anal Disease

Gifford v Aldus Engineering Pty Ltd [2022] NSWPICMP 421

Appellant submitted the Medical Assessor’s (MA) assessment of his whole person impairment was “inappropriately harsh”; that the MA did not take proper account of the history of his injury and did not base his assessment on his findings from examination; Held – Appeal Panel rejected all submissions of the appellant and found the MA had made the assessment based on the correct criteria and that the Medical Assessment Certificate (MAC) did not contain a demonstrable error; MAC upheld.

Decision date: 25 October 2022| Panel Members: Member Marshal Douglas, Dr Gregory McGroder and Dr James Bodel | Body system: Lumbar Spine

Haak & Haak as trustee for Pitstop Tyre and Auto v Smith [2022] NSWPICMP 422

Appeal by the employer in relation to assessment of lower digestive tract and/or anus; the Appeal Panel found error in the Medical Assessment Certificate (MAC) because the Medical Assessor did not make a finding of digestive tract disease as required by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^thed, 1 April 2016); a re-examination was undertaken; at re-examination the respondent worker did report ongoing symptoms and there were no physical signs of rectal or anal diseases; this means there is no rateable impairment according to Table 6-4 of American Medical Association Guides to the Evaluation of Permanent Impairment (5^th ed) and the assessment is 0% whole person impairment; Held – MAC revoked.

Decision date: 25 October 2022| Panel Members: Member Jane Peacock, Dr Mark Burns and Dr Cyril Wong | Body system: Lumbar Spine, Right Upper Extremity and Scarring

Gurnett v ACFS Port Logistics Pty Ltd [2022] NSWPICMP 423

Appeal by worker on three grounds; availability of additional relevant information (being additional information that was not available to and that could not reasonably have been obtained by the appellant before the medical assessment appealed against); the assessment was made on the basis of incorrect criteria; and the Medical Assessment Certificate (MAC) contained a demonstrable error; the worker claimed in a statement that the Medical Assessor (MA) had not used a goniometer when assessing range of motion of his injured left upper extremity and uninjured right upper extremity notwithstanding that the Independent Medical Examiners who had examined him had used such an instrument; that the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) (Guidelines) in the circumstances if his examination by the MA requires such use; Held – the worker’s statement as to how the MA conducted the medical examination of him had substantial prima facie probative value in terms of its particularity and plausibility; relevant parts thereof should be admitted into evidence in accordance with what Hodgson JA said in Lukacevic v Coates Hire Operations Pty Limited; that accepting what the worker said in his statement that the MA did not use a goniometer when measuring upper extremity impairment he made an assessment on the basis if incorrect criteria; the Appeal Panel accepted the worker ‘s submission that he should be re-examined by a member of the Panel to assess impairment; the worker was examined by a member of the Appeal Panel, who found a level of impairment different to that found by the MA both in respect of the injured left upper extremity and scarring assessed in accordance with TEMSKI; MAC revoked and new MAC issued.

Decision date: 25 October 2022| Panel Members: Member Brett Batchelor, Dr Tommasino Mastroianni and Dr Drew Dixon | Body system: Left Upper Extremity and Scarring (TEMSKI)

Hills Industries Ltd v Skates [2022] NSWPICMP 424

Medical dispute referred for assessment of “Left Upper Extremity (wrist, joint of ring finger)” and Scarring; Medical Assessor (MA) diagnosed Complex Regional Pain Syndrome (CRPS) which did not meet the criteria in Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^thed, 1 April 2016) (Guidelines) but accepted that the condition resulted from injury; he assessed each of the joints in the worker’s left upper extremity in accordance with Chapter 16 of the Guidelines and certified that he suffered 53% whole person impairment (WPI); employer argued that worker should have be assessed in accordance with the Referral; Skates v Hills Industries Ltd considered and applied; Held – MA required to assess WPI in accordance with the medical dispute referred for assessment; neither the Referral, the worker’s letter of claim, nor the medical evidence on which it was based permitted an assessment of all  joints of the left upper extremity; Medical Assessment Certificate (MAC) revoked and new MAC issued assessing the body parts/systems referred for assessment.

Decision date: 26 October 2022| Panel Members: Member Paul Sweeney, Dr Gregory McGroder and Dr Drew Dixon | Body system: Left Upper Extremity and Scarring (TEMSKI)

Freeth v Ventia Pty Ltd [2022] NSWPICMP 425

Appeal by worker against class 2 finding for concentration, persistence and pace; whether the Medical Assessor (MA) misunderstood the use of the Duolingo app as meaning the worker was actually studying the German language; whether MA fell into error by not referring to the statement of the worker’s partner; whether MA required to ask specific questions or to refer to all the evidence; Held – appeal rejected; additional evidence regarding the app admitted as an aide memoire; appellant ignored other involvement in online chess and word games being played continuously with other online users; observations on the task of a MA; Bojko v ICM Property Services Pty Ltd and Jones v The Registrar WCC considered regarding presumption of regularity; Western Sydney Local Health District v Chan considered (citing Wingfoot Australia Partners Pty Ltd v Kocak) regarding the task of a MA and the statement of reasons given in a Medical Assessment Certificate (MAC); appeal raised no more than a difference of opinion; Ferguson v State of NSW considered; MAC confirmed.

Decision date: 26 October 2022| Panel Members: Member John Wynyard, Dr Nick Glozier and Dr Michael Hong | Body system: Psychiatric/Psychological

Sigma-Aldrich Pty Ltd v Ratanasirilak [2022] NSWPICMP 426

Appeal from assessment of whole person impairment (WPI) (respiratory system, sleep apnoea); whether Medical Assessor erred in assessing a class 2 impairment failing in circumstances where the worker admitted that his sleep apnoea did not have any significant impact on his activities of daily living (ADLs); whether he erred in selecting a 15% WPI from the range of 10% to 29% provided by Table 13-4 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA5) in circumstances where he found that the impact on ADLs was predominantly caused by the condition of the lumbar spine; Held – Medical Assessment Certificate confirmed.

Decision date: 26 October 2022| Panel Members: Member Richard Perrignon, Dr Gregory Kaufman and Dr David Crocker | Body system: Lumbar Spine, Respiratory System and Scarring (TEMSKI)

Motor Accidents Merit Review Decisions

Foroosh v QBE Insurance (Australia) Limited [2022] NSWPICMR 57

Reviewable decision; insurer’s refusal to pay costs of whole person impairment dispute before completion of damages claim; not a Merit Review matter; Held – decision affirmed; no order as to costs.

Decision date: 1 September 2022| Merit Reviewer: Gary Patterson

Pauja v Allianz Australia Insurance Limited [2022] NSWPICMR 58

Merit Review; legal costs, one invoice, two amounts claimed; total claim of $2,159.44 (inclusive of GST) for professional legal costs; claim for $1,660.16 and additional claim for $302.97;  minor injury dispute; insurer part paid the invoice amount of $830.08 incl GST; claimant sought payment of full amount for both amounts; sections 8.3 and 8.10 of the Motor Accident Injuries Act2017( 2017 Act); section 42 “guiding principle” of the Personal Injury Commission Act 2020 applied;  AAI Ltd trading as GIO v Moon applied; Held – insurer is to pay the claimant’s reasonable and necessary legal costs assessed at $1,200 plus GSTless amount already paid; this was$369.92 plus GST totalling $406.91; parties notacting consistently withlegislation 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’s scarce resources diverted to deal with a dispute about a small amount of legal costs.

Decision date: 24 October 2022| Merit Reviewer: Ray Plibersek

Gendy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 59

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; change in earning circumstances; schedule 1, clause 4(3) of the 2017 Act; whether earner had been earning continuously; schedule 1, clause 4(4) of the 2017 Act; burden of proof; balance of probabilities; duty of good faith, duty to act honesty and not to mislead; section 6.3 of the 2017 Act; duty to co-operate; section 6.24 of the 2017 Act; reliability and credibility of evidence; Held – the reviewable decision is remitted back to the insurer.

Decision date: 24 October 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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