Legal Bulletin No. 107

Issued 21 April 2023

Welcome to the hundred and seventh 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

Bairagi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 87

Motor Accidents Compensation Act 1999; non-economic loss; residual earning capacity; secondary psychological injury; entitlement to disbursements; Held – the amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,082.52inclusive of GST.

Decision date: 2 March 2023 | Member: Hugh Macken

Allianz Australia Insurance Limited v Jenkins [2023] NSWPIC 129

Motor Accident Injuries Act 2017; damages claim; settlement approval under section 6.23; claimant self-represented; claimant was riding his motor bike when the insured driver turned across his path;  left ankle fracture requiring surgery; initial six weeks off work returning to work with reduced capacity until resuming full time within 8-9 months; settlement offer included a $20,000 buffer for past loss of earnings and a buffer of $20,000 for 'flare ups' for future loss of earnings; Held - settlement approved, parties reminded of claimant's entitlement under sections 3.24 and 3.26.

Decision date: 8 March 2023 | Member: Elyse White

Zendehdel v AAI Limited t/as AAMI [2023] NSWPIC 143

Motor Accident Injuries Act 2017; claim for damages; separate hearing on liability with assessment on the papers requested by the parties; claimant injured in collision at intersection, saying she stopped at the stop line, waited for 4 – 5 seconds before checking all was clear and proceeding into intersection; claimant alleged insured was speeding; evidence for independent witness driving behind insured was that the claimant did not stop before proceeding into intersection, second independent witness also said claimant did not stop and did not look; expert evidence from both sides, insurer’s expert points out errors in claimant’s expert report likely to affect calculations of speed, insurer’s expert preferred; Held– insured did not breach her duty of care to claimant, accident caused by claimant failing to give way at the intersection, failing to observe presence of insured; claimant had no entitlement to damages and costs not awarded in favour of claimant.

Decision date: 5 April 2023 | Member: Belinda Cassidy

AAI Limited t/as AAMI v Engelbrecht [2023] NSWPIC 151

Motor Accident Injuries Act 2017;settlement approval; section 6.23; claim for damages for past and future economic loss; claimant 65 years of age; no entitlement to damages for non-economic loss; possibility of future surgery; claimant earning more post-accident; proposed settlement increased from $31,000 to $48,000 after further negotiations; Held – proposed settlement of $48,000 approved.

Decision date: 13 April 2023 | Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Mardasi v Shear Glass and Aluminium Pty Ltd [2023] NSWPIC 94

Claim for cost of L3/4 and L5/S1 left endoscopic spine surgery proposed by Dr Singh; applicant had accepted injury to his lumbar spine arising out of or in the course of his employment; whether the proposed treatment is reasonably necessary as a result of his injury; Held – proposed treatment at L3/4 is not reasonably necessary; the weight of the evidence supports the finding that proposed treatment at L5/S1 is reasonably necessary; respondent to pay the costs of and associated with left endoscopic L5/S1 surgery proposed by Dr Singh.

Decision date: 9 March 2023 | Member: Jill Toohey

Plant v State of New South Wales (NSW Police Force) [2023] NSWPIC 144

Workers Compensation Act 1987; psychological Injury; injury undisputed; section 11A defence; the respondent bears the onus of proving its section 11A 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 discipline and/or transfer; not satisfied, on the balance of probabilities, that the respondent had discharged its onus of proof that the action taken in relation to discipline and/or transfer was reasonable; applicant not precluded from the recovery of compensation for his psychological injury by reason of the provisions of section 11A; award for the applicant.

Decision date: 6 April 2023 | Member: Jane Peacock

Allatt v Programmed Integrated Workforce Limited [2023] NSWPIC 146

Lump sum application regarding a consequential condition to a contralateral wrist; whether deficiencies in statement and medico-legal opinion fatal to the claim; whether clinical notes able to fill evidentiary lacuna; Held – applicant conceded statement and opinion of one expert deficient in explaining when the consequential commenced, or what its cause was; applicant relied on histories taken by various medical and health professionals within the clinical notes; matter remitted for assessment of consequential condition and injury.

Decision date: 6 April 2023 | Member: John Wynyard

Comlekci v Fairfield City Council [2023] NSWPIC 147

Workers Compensation Act 1987; claim for injuries to right hand and right wrist; claim for weekly compensation pursuant to sections 36 and 37;original determination and findings made on 22 April 2022 but not concluded in accordance with Fairfield City Council v Comlekci; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration as to how to calculate the applicant’s pre-injury average weekly earnings (PIAWE) based upon her financial year income statements in the absence of any evidence to the contrary from the respondent; Held – the applicant’s PIAWE is $1,313.44; she is entitled to awards pursuant to sections 36 and 37 in accordance with this calculation and the findings made in the 20 April 2022 determination; liberty to apply granted if previous payments pursuant to section 36 made.

Decision date: 6 April 2023 | Member: Gaius Whiffin

Henneberry v Duromer Products Pty Ltd [2023] NSWPIC 148

Claim for permanent impairment compensation for injuries to the left upper extremity (shoulder) and a consequential injury to the right upper extremity (shoulder); question of what is the date of injury suffered by the applicant; Held – the applicant injured his left shoulder on 14 January 2008 and again on 18 December 2015 and from then suffered a consequential condition to his right shoulder; the applicant contends the date of injury is 18 December 2015 and the respondent contends it is 14 January 2008; finding for the respondent.

Decision date: 11 April 2023 | Member: Stephen Churches

Oghenetega v G. James Glass & Aluminium (QLD) Pty Ltd [2023] NSWPIC 149

Workers Compensation Act 1987;section 4(b)(ii) injury to the cervical spine disputed; proposed treatment to the cervical spine disputed; contemporaneous evidence; Davis v Council of the City of Wagga Wagga; King v Collins; Mastronardi v State of New South Wales, Mason v Demasi; Bugat v Fox, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, State Transit Authority v El-Achi, AB v AW, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held –the applicant suffered an injury to the cervical spine within the meaning of section 4(b)(ii) and his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition deemed to have occurred on 11 February 2021; the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 11 February 2021 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan at the gazetted rates.

Decision date: 12 April 2023 | Member: Anthony Scarcella

Mackintosh v Ian Cubitts Classic Home Improvements Pty Ltd [2023] NSWPIC 150

Claim for weekly compensation and the cost of proposed surgery; worker provides a late and variable account of the circumstances of injury; argument in respect of an admission allegedly made by insurance agent; Lustre Hosiery Ltd v York considered and applied; Held – finding of injury; award for applicant for cost of surgery.

Decision date: 12 April 2023 | Member: Paul Sweeney

Workers Compensation Presidential Delegate Decision

Sellers v Timothy James Cruickshank t/as TKC Tipper Hire Pty Ltd [2023] NSWPIC 157

Application for the Delegate to recuse herself from the proceedings on the basis of apprehended bias and/or failing to afford a fair trial; whether the insurer has failed to comply with clause 38(1)(a) of the Workers Compensation Regulation 2016 because it did not serve all of the documents in the applicant’s file at the time of issuing the work capacity decision (WCD); whether the applicant is able to work 9 hours per week in the “suitable employment” identified  being the role of Call/Contact Centre Operator; Held –application for the Delegate to recuse herself is dismissed; WCD issued is valid; Delegate not satisfied the applicant has no current work capacity; application dismissed.

Decision date: 13 April 2023 | Delegate: Belinda Gamble

Motor Accidents Medical Review Panel Decisions

Elia v Allianz Australia Insurance Limited [2023] NSWPICMP 114

Motor Accident Injuries Act 2017;the claimant was a passenger and suffered injury from a rear-end collision; the dispute related to whether the injury was a minor injury and whether recent shoulder surgery was caused by the accident and reasonable and necessary; claimant re-examined; no evidence that the back and neck injury were other than a minor injury; claimant’s history that there were no pre-existing right shoulder symptoms rejected; inconsistent with objective evidence and statement in claim form; reliance on contemporaneous notes; Nominal Defendant v Corbin applied; right shoulder injury or aggravation otherwise inconsistent with nature of accident; QBE Insurance v Shah applied; Held – claimant only suffered minor injuries; original assessment confirmed.

Decision date: 28 March 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Drew Dixon| Injury module: Spine and Upper Limb

Sarwary v Allianz Australia Insurance Limited [2023] NSWPICMP 125

Motor Accident Injuries Act 2017 (2017 Act);the claimant suffered injury on 2 March 2021; the dispute related to the payment of the costs of a transcutaneous electrical nerve stimulation (TENs) machine valued at between $100 and $400; claimant not re-examined; reference to section 42(4) of the Personal Commission Act 2020; proportionality between the cost to the parties and the Personal Injury Commission and the importance and complexity of the matter; examination otherwise of no utility; discussion of benefits of a TENs machine; use as an aid to reduced perception of pain; no downside in the treatment; low cost; recognised and appropriate treatment; treatment tailored to the claimant’s circumstances; application of insurer’s obligations under clause 4.76 of the Motor Accidents Guidelines (version 9.1, effective 1 April 2023) to the meaning of “reasonable and necessary in the circumstances” in section 3.24 of the 2017 Act queried; Held – orders made for payment of expenses of TENS machine; original assessment revoked.

Decision date: 31 March 2023 | Panel Members: Principal Member John Harris, Dr David Gorman and Dr Leslie Barnsley | Treatment Type: Pain Management Program

AAI Limited t/as AAMI v Ahmed [2023] NSWPICMP 126

Motor Accident Injuries Act 2017;assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 17 June 2021; Medical Assessor (MA) Berry found the following injuries were threshold injuries; lumbar spine, soft tissue injury; right foot, soft tissue injury; left foot, soft tissue injury; certified injury to the right knee, radial tear or medial meniscus was a non-threshold injury; dispute as to causation of the right knee injury; Held –applying test of causation as per Briggs v IAG Limited,claimant struck knee on dashboard as claimed with slight twist or rotatory force causing radial tear of the medial meniscus; if causation satisfied insurer agreed injury to the knee would be a non-threshold injury; injury to right knee was a non-threshold injury; soft tissue injury to lumbar spine and to both feet were threshold injuries; Medical Assessment Certificate of MA Berry affirmed.

Decision date: 4 April 2023 | Panel Members: Member Susan McTegg, Dr Drew Dixon and Dr Thomas Rosenthal | Injury module: Spine and Lower Limb

Al-Abbasi v AAI Limited t/as GIO [2023] NSWPICMP 127

Motor Accident Injuries Act 2017;the claimant suffered injury in July 2019 when insured vehicle failed to give way on roundabout; the dispute related to whether the injury was a threshold injury; claimant suffered a fractured toe in March 2020 said to have been caused by the motor accident; directions issued to parties to clarify issues and whether matter could be assessed on the papers; motor accident was of low impact; no immediate complaint of left knee symptoms; examination of left knee two weeks after motor accident showed good range of motion and a clinically stable knee; no pathology caused by motor accident; no medical reasons; claimant’s assertion of why toe fractured inconsistent with contemporaneous hospital note which indicated that the claimant struck her toe against concrete; other injuries suffered in the motor accident held to be threshold injuries; Held – claimant suffered threshold injuries; original Medical Assessment Certificate confirmed.

Decision date: 4 April 2023 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Shamoon v QBE Insurance (Australia) Limited [2023] NSWPICMP 128

Motor Accident Injuries Act 2017;the claimant suffered injury on 24 February 2018; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; claimant diagnosed with driving phobia which restricted travel; assessments of other psychiatric impairment rating scale (PIRS) categories did not show any psychiatric impairment; Held – claimant assessed at 0% permanent impairment for the psychological injury; original assessment revoked.

Decision date: 5 April 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Samson Roberts | Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Shah [2023] NSWPICMP 129

The claimant sustained injury on 12 February 2014 in a rear end collision; Medical Assessor (MA) Burns in a certificate dated 21 January 2020 assessed a 20% whole person impairment (WPI) for injury to the left shoulder, injury to the right shoulder and for right sided trochanteric bursitis; Justice Fagan in QBE v Shah remitted matter on basis of inadequate reasons and failure to address the surveillance and was critical of the lack of scientific or critical reasoning applied; dispute referred to MA Harrington who assessed a 34% WPI in respect of injury to the left shoulder, the right shoulder and the right knee; he found any soft tissue injury to the right hip had resolved; Panel asked to review the certificate of MA Harrington; insurer raised questions of causation in respect of injuries to the right shoulder, the right knee and the right hip; Held –Panel concerned about reliability of the claimant’s evidence; inconsistencies on examination and on surveillance footage; Mr Shah described being hit “square on”; Panel found full thickness rotator cuff bilateral tears with supraspinatus retraction were long standing and not caused by accident; Panel found accident caused aggravation of the underlying rotator cuff pathology in both shoulders; right knee pain due to pre-existing lateral compartment osteoarthritis; following accident claimant able to mobilise; in absence of substantial articular injury or evidence of any forceful impact Panel found accident was not more than a negligible cause of the lateral compartment osteoarthritis; Panel found claimant did not injure right knee in accident; Panel found pre-existing greater trochanteric bursitis not aggravated by accident in absence of evidence he struck knee in accident and in absence of evidence of injury such as bruising; Panel found accident not cause injury to right knee or right hip; Panel found injury to left and right shoulders and assessed WPI by joint crepitation at 6% WPI.

Decision date: 5 April 2023 | Panel Members: Member Susan McTegg, Dr Michael Couch and Dr Leslie Barnsley | Injury module: Upper and Lower Limb

Simonyan v QBE Insurance (Australia) Limited [2023] NSWPICMP 130

Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 11 October 2017; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; Panel re-examined claimant; first complaint of shoulder injury symptoms 19 months after the accident; scans showed injury was not traumatic; Raina v CIC Allianz Insurance Ltd, Sydney Trains v Batshon, Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and Bugat v Fox considered; Held – Review Panel found no nexus with shoulder injury and accident; permanent impairment 5% cervical spine; previous certificate revoked.

Decision date: 5 April 2023 | Panel Members: Member Terence O’Riain, Dr Geoffrey Stubbs and Dr Mohammed Assem | Injury module: Spine and Upper Limb

BKJ v AAI Limited t/as GIO [2023] NSWPICMP 131

Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of assessment under section 7.26; original assessment by Medical Assessor (MA) Paisley found WPI not greater than 10%; claimant had significant physical injuries in the accident and was assessed by his expert as having a WPI of 17% for his psychological injury; the claimant had pre-accident psychiatric history with suggestion of bi-polar disorder and long-term antidepressant medication; Held–claimant diagnosed with aggravated type II bi-polar disorder and current WPI of 8% and pre-accident WPI of 1%; certificate of MA Paisley confirmed; no issue of principle.

Decision date: 6 April 2023 | Panel Members: Member Belinda Cassidy, Dr Michael Hong and Dr Paul Friend | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Henderson v Canterbury Hurlstone Park RSL Club Ltd [2023] NSWPICMP 134

Psychological Injury; appellant alleged error in the assessment under two categories under the psychiatric impairment rating scale (PIRS) namely, social and recreational activities and social functioning; the ratings in this class was open to the Medical Assessor and the Panel could discern no error; the appellant also alleged error in failure to give an additional impairment for effects of treatment; no error found as there was not substantial or total elimination of impairment; Held – Medical Assessment Certificate confirmed.

Decision date: 6 April 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Garrick v Dnata Airport Services Pty Ltd [2023] NSWPICMP 135

Worker’s appeal against finding of diagnosis related estimate (DRE) Cervical Category II by Medical Assessor (MA); Panel concludes that at least one minor criterion and one major criterion necessary for a finding of radiculopathy; paragraph4.27 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021 were present on MA’s examination; on re-examination DRE III confirmed; Held –Medical Assessment Certificate (MAC) revoked and new MAC issued.

Decision date: 11 April 2023 | Panel Members: Member Paul Sweeney, Dr Roger Pillemer and Dr David Crocker | Body system: Cervical Spine

Pun v F C Building Pty Ltd [2023] NSWPICMP 136

Appellant suffered fractures of C7/T1 vertebra, treatment of which included internal fixation of vertebra from C4-T4; Medical Assessor (MA) assessed respondent had 31% whole person impairment (WPI) relating to his cervical spine and 0% WPI relating to his thoracic spine; whether MA correctly applied paragraph 4.32 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021; Appeal Panel held he did not; Held –Medical Assessment Certificate revoked.

Decision date: 12 April 2023 | Panel Members: Member Marshal Douglas, Dr Drew Dixon and Dr Margaret Gibson | Body system: Cervical and Thoracic Spine, Left Upper Extremity, Right Lower Extremity and Scarring

Mitchell v Glenella Quarry Pty Ltd [2023] NSWPICMP 137

Lumbar spine injury; complaint of leg pain required assessment of radiculopathy persisting after surgery; assessment in accordance with the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021; paragraph 4.4, 4.27 and 4.28 required a more detailed history; impact of the injury on activities of daily living; TEMSKI; re-examination required; Held – Medical Assessment Certificate revoked.

Decision date: 12 April 2023 | Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr Tommasino Mastroianni | Body system: Lumbar Spine and Scarring (TEMSKI)

State Transit Authority v Fullbrook [2023] NSWPICMP 138

Assessment of impairment of upper extremities; injury to both shoulders; employer’s failure to determine claim resulted in all claims referred to Medical Assessor (MA) despite worker’s assessment of 0%; MA found no permanent impairment in right shoulder as a result of the injury but measured loss of the range of motion; failure to apply paragraph 2.20 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, 1 March 2021 and to deduct measured loss in right shoulder from assessed loss in respect of left shoulder injury; application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for previous surgery; Held – Medical Assessment Certificate revoked.

Decision date: 12 April 2023 | Panel Members: Member Catherine McDonald, Dr Neil Berry and Dr J Brian Stephenson | Body system: Right and Left Lower Extremity, Right and Left Upper Extremity

Motor Accidents Merit Review Decisions

Singh v Allianz Australia Insurance Limited [2023] NSWPICMR 14

Motor Accident Injuries Act 2017; merit review; pre-accident weekly earnings (PAWE); sub-clause 4(1) of Schedule 1; claimant worked as a consultant; claimant also operated business as a Uber and Ola driver; calculation of PAWE; dispute over calculation of income and business expenses; claimant and insurer made several different estimates of income and vehicle expenses; disagreement over the interpretation of the data and financial and business records; Held – claimant’s PAWE determined on the basis of recalculated income and expenses; claimant’s PAWE should be calculated for 12 month period immediately before the accident; tax returns not useful because calculated over different financial year period; remitted to the insurer for reconsiderationand recalculation of the claimant’sentitlements; Lovett v QBE Insurance (Australia) Limited, Mula v NRMA, Moltmann v Insurance Australia Limited t/as NRMA Insurance and Conde v Insurance Australia Limited t/as NRMA Insurance cited and applied; Alliance Insurance Australia Limited v Shahmiri noted.

Decision date: 10 March 2023 | Merit Reviewer: Ray Plibersek

Tindal v QBE Insurance (Australia) Limited [2023] NSWPICMR 21

Motor Accident Injuries Act 2017; merit review; pre accident weekly earnings (PAWE); claimant operated business as a Uber driver; claimant and insurer made different estimates of vehicle income and expenses; disagreement over the interpretation of the data, financial and business records; claimant worked as an Uber driver for 39 weeks out of 52 weeks; revised decision; documents missing not initially considered by decision maker; insurer application alleging jurisdictional error; decision reviewed under Minister for Immigration and Multicultural Affairs v Bhardwaj; late documents admitted and considered in revised decision; Held- claimant’s PAWE calculated based on the late second forensic accounting report; claimant did not work due to interruption from COVID -19; despite claimant only working as an Uber driver for 39 weeks out of 52 weeks his PAWE must be calculated over whole 52 week period; unfair result inconsistent with workers compensation legislation; remitted to the Insurer for reconsiderationand recalculation of the claimant’sPAWE; COVID-19 disaster payments  are excluded from calculation of PAWE; claimant to repay excess weekly benefits; sub-section 3.20(3); legal costs; a merit review dispute under Division 3.3 about weekly payments of statutory benefits  is not “regulated merit review matter”; legal costs under section 8.10(1) not available; no exceptional circumstances; legal costs $NIL; Alliance Insurance Australia Limited v Shahmiri, Mackary v Allianz Australia Insurance Limited at [22]-[24] and Conde v Insurance Australia Limited t/as NRMA Insurance followed and applied.

Decision date: 3 April 2023 | Merit Reviewer: Ray Plibersek

Magar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 22

Motor Accident Injuries Act 2017; merit review; dispute about the amount of weekly payments of statutory benefits payable under Division 3.3; where the claimant was an earner but not employed immediately before the accident; Schedule 1 clause 4(1) applied to calculate claimant’s pre-accident weekly earnings (PAWE); Held – the reviewable decision is set aside.

Decision date: 6 April 2023 | Merit Reviewer: Maurice Castagnet

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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