Legal Bulletin No. 102

Issued 17 March 2023

Welcome to the hundred and 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.

Presidential Member Decision

The Hills Shire Council v Podesta [2023] NSWPICPD 10

Workers compensation; section 11A of the Workers Compensation Act 1987; whether action taken by the employer with respect to discipline was reasonable; adequacy of reasons; section 294 of the Workplace Injury Management and Workers Compensation Act 1998 and rule 78 of the Personal Injury Commission Rules 2021; Held – the Certificate of Determination dated 23 March 2022 is confirmed.

Decision date: 9 March 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Allianz Australia Insurance Limited v Sternfeld [2023] NSWPIC 77

Motor Accident Injuries Act 2017; settlement approval; 89 year old female passenger in a motor vehicle which collided with a concrete pillar in an underground carpark; sustained a right lateral tibial fracture with residual knee pain; entitlement to non-economic loss only; claimant is a pensioner; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 2 March 2023 | Member: David Ford

Elliot v AAI Limited t/as AAMI [2023] NSWPIC 82

Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant badly injured and immobilised and in considerable pain for about a month after his accident; application for a claim for statutory benefits made 28 days after the motor accident; section 6.13(2); can time be extended; do exceptional circumstances apply; Held - insurer is entitled to refuse payment of weekly payments of statutory benefits for the period before the claim was made under subsection 6.13(2); time for making the claim cannot be extended; insurer entitled to refuse payment if claim made after 28 days; “black-and-white” or mandatory requirement in the legislation; no discretion in the insurer or any Member of the Personal Injury Commission to allow for an extension of time or for any exceptional or other extenuating circumstances where a claim is made outside the strict 28 day period specified in the legislation; in this case however subsection 6.19 applied to require the payment; insurer’s liability notice to claimant accepted liability to pay weekly payments of statutory benefits from the date of the accident; on internal review the insurer then decided not to pay weekly benefits because the application was made outside the 28 day time limit mandated under subsection 6.13; under subsection 6.19(6) once the insurer has accepted liability then it must without delay commence payment of those statutory benefits; if the insurer subsequently denies liability it cannot recover those payments of statutory benefits already made; adverse comment made that insurer did not initially produce the insurer’s letter admitting liability for the first 26 weeks; AFQ v GIO Insurance, AMJ v AAMI Insurance Ltd (Claims Assessment), ALP v GIO Insurance (Claims Assessment), Kennedy v GIO Insurance (Australia) Ltd and Whittington v AAI Limited t/as AAMI considered and distinguished.

Decision date: 3 March 2023 | Member: Ray Plibersek

Marley v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 83

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under section 3.28; whether the claimant was riding his motorcycle at an excessive speed for the road conditions; whether the rider was keeping a proper look out; whether negligence or error of judgement; whether benefits should cease under sections 3.11 and 3.28; Rabay v Bristow, Daskalopoulos v Health Care Complaints Commission; Manley v Alexander; Wilson v Allianz Insurance Limited; Anderson v Insurance Australia Limited t/as NRMA Insurance; Ferrell v Insurance Australia Limited t/as NRMA Insurance and Podrebersek v Australian Iron and Steel referred to.

Decision date: 6 March 2023 | Member: Terence Stern OAM

Bentley v QBE Insurance (Australia) Limited [2023] NSWPIC 85

Motor Accident Injuries Act 2017; miscellaneous claims assessment matter; dispute about wholly at fault, mostly at fault and contributory negligence; claimant driver of car turning right across path of insured vehicle; truck in front of claimant obstructing insured driver’s view of claimant; claimant alleged insured driver speeding, failed to slow down and failed to take precautions to avoid the accident; CCTV footage of crash from nearby premises available; parties obtained joint expert as to speed of insured driver as 50 – 60 km per hour based on that footage but could not be more precise; Held – claimant wholly at fault; cause of accident was her turning right in front of oncoming traffic; no finding that insured speeding could be made on basis of expert evidence; insured not required to slow down or take precautions on basis of presence of a truck on the other side of the road travelling in the other direction; not reasonable to expect a vehicle would undertake reckless right hand turn manoeuvre from behind the truck; costs agreed at $5,800 plus GST (three disputes at maximum regulated fee).

Decision date: 8 March 2023 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Cayir v Woolworths Group Limited [2023] NSWPIC 78

Workers Compensation Act 1987; whether applicant suffered injury in the form of a disease of gradual onset to the left and/or right upper extremities within the meaning of sections 15 and 16; whether injury resulted in permanent impairment; Held – the applicant suffers from a disease of gradual onset in his left upper extremity; the disease process was aggravated, accelerated, exacerbated or deteriorated in the course of his employment and his employment was the main contributing factor; the applicant has not established that he suffers from a disease of gradual onset in his right upper extremity; the applicant has not established that any condition that he may suffer from in his right upper extremity is permanent; matter referred to the President of the Personal Injury Commission for referral for medical assessment of permanent impairment of the left upper extremity.

Decision date: 2 March 2023 | Member: Michael Inglis

Turner v Essential Energy [2023] NSWPIC 79

Workers Compensation Act 1987; application for lump sum death benefit; identification of dependants; application for discretionary interest; when claim duly made; appropriate rate of interest; Held – liability to pay compensation conceded; the applicant was the only dependant of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1A) and 85A; award for discretionary interest from date full particulars of dependence provided at 2% above Reserve Bank of Australia cash rate.

Decision date: 2 March 2023 | Member: Rachel Homan

Batth Saab Trans Pty Limited v Verma & Ors [2023] NSWPIC 80

Application for the distribution of the lump sum death benefit; dependant as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998; definition of support in section 25 of the Workers Compensation Act 1987; Warilla Timber and Hardware Pty Ltd v Newtonand Albury Real Estate Pty Ltd v Rouse and Anor discussed; Held –the residual lump sum is to be paid directly and in equal parts to the three dependants.

Decision date: 3 March 2023 | Senior Member: Elizabeth Beilby

Kerr v Sydney Catholic Schools Limited [2023] NSWPIC 81

Workers Compensation Act 1987; pursuant to section 4(b) the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the contraction and/or aggravation of the disease; the respondent has not established a defence under s 11A; Held – the lump sum claim is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess permanent impairment; after the Medical Assessment Certificate has been issued the matter is to be listed for a further preliminary conference to deal with the weekly compensation claim.

Decision date: 3 March 2023 | Member: Principal Member Josephine Bamber

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Kader [2023] NSWPICMP 139

Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; claimant injured in rear end collision and developed psychological symptoms on a background of some life stressors; claimant assessed by Medical Assessor Samuell and found to have a non-minor injury; specific phobia; insurer challenged decision; Held–claimant re-examined by medical members of the Panel and satisfied the criteria for a specific phobia related to travelling in a car or driving which is a recognisable psychiatric injury in DSM-5 and an injury which is not a minor injury; no matter of principle; certificate of Medical Assessor Samuell affirmed.

Decision date: 27 February 2023 | Panel Members: Member Belinda Cassidy, Dr Gerald Chew and Dr Matthew Jones | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Alawieh [2023] NSWPICMP 63

Motor Accident Injuries Act 2017;the claimant suffered injury in a rear end collision on 30 November 2018; the dispute related to the assessment of permanent impairment under of psychological injury and whether the injury was a minor injury; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 7% permanent impairment in respect of the psychological injury; original assessment revoked in part and confirmed on finding of non-minor injury.

Decision date: 28 February 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Alexey Sidorov | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Shanks [2023] NSWPICMP 64

Motor Accidents Compensation Act 1999;the claimant suffered injury as he was cycling as part of a group and struck by the insured vehicle; the dispute related to the assessment of permanent impairment under of psychological injury and various treatment disputes; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; parties referred treatment disputes including need for Endep which the claimant had ceased taking; findings made that claimant would require ongoing treatment by general practitioner at six times per year for 30 years for ongoing review including prescribing medication; Held –claimant assessed at 7% permanent impairment in respect of the psychological injury and various findings made for treatment disputes; original assessments revoked.

Decision date: 1 March 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Atsumi Fukui | Injury module: Mental and Behavioural

AAI Limited t/as GIO v Anand [2023] NSWPICMP 65

Motor Accidents Compensation Act 1999;medical dispute about whole person impairment (WPI) and review under section 63; Medical Assessor (MA) Truskett’s decision set out that claimant had a WPI greater than 10%; claimant injured in earlier car accident in September 2015 and the current accident in May 2016; both rear end collisions; first accident more severe than the second; biomechanical evidence in second accident from insurer not challenged or answered by claimant was that injury impossible; histories of what parts of her body were injured varied; primary issue one of causation; Held –claimant’s evidence should be approached with caution due inconsistencies in histories and evidence; injuries in 2015 accident were neck, back and right shoulder and claimant had not recovered at time of second accident; Panel did not accept claimant could have injured or did injure her neck, lower back or right shoulder; Medical Assessment Certificate of MA revoked.

Decision date: 1 March 2023 | Panel Members: Member Belinda Cassidy, Dr Neil Berry and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Mehmood v AAI Limited t/as GIO [2023] NSWPICMP 66

The claimant suffered injury in a motor accident on 6 September 2017 when he was in a vehicle rear ended by the insured vehicle; the medical dispute was whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had a chronic pre-existing lumbar spine condition; Panel found that the injury to the lumbar spine resolved adopting history that symptoms had settled to pre-accident levels; based on the circumstances of the motor accident, the contemporaneous complaint of neck pain, the likelihood that this type of accident would aggravate pre-existing pathology and the worsening shown in cervical spine pathology from the pre-accident condition, the Panel was satisfied that the motor accident aggravated the pathology at C6/7 resulting in further cervical symptoms and left sided radicular symptoms; the pathology aggravated by the motor accident was susceptible to further progressive symptoms which appear to have deteriorated in the latter part of 2018 which ultimately led to the spinal fusion; Held – claimant assessed at 20% permanent impairment in respect of the cervical spine after a deduction of 5% for the pre-existing condition; original Medical Assessment Certificate revoked.

Decision date: 2 March 2023 | Panel Members: Principal Member John Harris Dr David Gorman and Dr Tai-Tak Wan | Injury module: Spine

Workers Compensation Medical Appeal Panel Decisions

McMahon v Lachlan Industries Pty Ltd (deregistered) [2023] NSWPICMP 67

Workplace Injury Management and Workers Compensation Act 1998;Appeal from further assessment of 1999 award; whether Medical Assessor (MA) failed to properly apply section 323 (former section 68A); whether issue estoppel pertained, Held –  MA erred in ascribing the deduction he made for non-work-related loss and impairment to section 68A, the dates of injury being 1995 and 1983; reduction in impairment however permitted by application of common law principles; Secretary, NSW Department of Education v Johnson considered and applied; Medical Assessment Certificate revoked but fresh certificate issued in the same assessments.

Decision date: 3 March 2023 | Panel Members: Member John Wynyard, Dr John Garvey and Dr James Bodel | Body part: Back, Neck, Right Arm at or Above the Elbow, Loss of Useful Function of Sexual Organs

Yawson v Assetlink Services (23) Pty Limited [2023] NSWPICMP 68

Workplace Injury Management and Workers Compensation Act 1998;appeal from reconsidered Medical Assessment Certificate adjusting the assessment from 15% to 14% following orders made by the President’s Delegate; whether Medical Assessor (MA) adequately explained his reasons for the section 323 deduction of 1/10th; whether MA considered all the evidence; Held – any ambiguity in the MA’s reasons by his comment that there was insufficient information for him to make a deduction after reconsidering clinical notes was clarified by his later explanation; appellant was rendered more vulnerable and the deduction was open to him.

Decision date: 3 March 2023 | Panel Members: Member John Wynyard, Dr Nick Glozier and Dr Doug Andrews | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Barnes v AAI Limited t/as GIO [2023] NSWPICMR 9

Motor Accident Injuries Act 2017; merit review; claim for “reasonable and necessary” legal costs for minor injury dispute and medical review panel; claim for two amounts of maximum regulated legal costs under sections 8.3 and 8.10; Held – claimant awarded regulated legal costs for minor injury dispute of $1660 plus GST; awarded $830 plus GST for medical review panel; claimant’s solicitors did not provide an adequate detailed description or itemisation of the legal work done by them on the two disputes to support a finding justifying two amounts of maximum costs being awarded; parties unable to resolve a dispute over small amount; dispute is in stark contrast to the exhortations contained in the objects of the Motor Accident Injuries 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; Personal Injury Commission required to divert its scarce resources to deal with a dispute about a small amount of legal cost.

Decision date: 17 February 2023 | 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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