Legal Bulletin No. 126
This bulletin was issued on 1 September 2023
Issued 1 September 2023
Welcome to the one hundred and twenty sixth 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.
Court of Appeal Decision
Constitutional law; federal jurisdiction; whether Personal Injury Commission exercised judicial power when determining claim brought by resident of Queensland against employer State of New South Wales; common ground that Commission exercised administrative power in this case; Held – appeal allowed by consent; short reasons given.
Decision date: 30 August 2023 | Before: Leeming JA; Adamson JA; Basten AJA
Supreme Court Decisions
State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935
Administrative law; judicial review; workers compensation; where plaintiff seeks extension of time to commence proceedings under Uniform Civil Procedure Rules 59.10 only after decisions of approved medical specialist and Second Appeal Panel are not favourable to it; unexplained delay; extension of time refused; whether error of law by the Second Appeal Panel in its approach to pre-existing condition and its approach to evaluation of impairment; Held – no error by Second Appeal Panel; summons dismissed.
Decision date: 10 August 2023 | Before: Lonergan J
Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023
Administrative law; judicial review; decision of medical assessor referred to review panel; where plaintiff underwent surgery for reported radicular symptoms; whether surgery rendered plaintiff’s injury non-minor; where no evidence about what the surgery involved was put before the medical assessor; Held – no error made out.
Decision date: 28 August 2023 | Before: Chen J
Administrative law; judicial review; workers compensation; where plaintiff seeks extension of time to commence proceedings under Uniform Civil Procedure Rules 59.10 only after decisions of approved medical specialist and Second Appeal Panel are not favourable to it; unexplained delay; extension of time refused; whether error of law by the Second Appeal Panel in its approach to pre-existing condition and its approach to evaluation of impairment; Held – no error by Second Appeal Panel; summons dismissed.
Decision date: 10 August 2023 | Before: Lonergan J
Presidential Member Decision
The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50
Workers compensation; referral to a Medical Assessor for an assessment of permanent impairment; section 293 of the Workplace Injury Management and Workers Compensation Act 1998; Jaffarie v Quality Castings Pty Ltd considered; Held – The Certificate of Determination dated 23 August 2022, as amended 30 August 2022, is revoked.
Decision date: 18 August 2023 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Insurance Australia Limited t/as NRMA Insurance v CBP [2023] NSWPIC 415
Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claim for non-economic loss; claimant now 78 years of age; injured as passenger; left volar wrist fracture; rib fractures; L1 compression fracture; left sternal fracture; assessment of whole person impairment at 16%; following discussions offer of settlement increased by insurer; Held – accident adversely impacted quality of life; claimant made significant effort to facilitate recovery; settlement just, fair and reasonable and within the range of likely potential damages assessment; settlement approved.
Decision date: 14 August 2023 | Member: Susan McTegg
Insurance Australia Limited t/as NRMA Insurance v Bognar [2023] NSWPIC 422
Motor Accident Injuries Act 2017; 41-year-old rider of a motorcycle involved in a collision with the insured motor vehicle; insurer wholly admitted liability; sustained fracture to the great right toe and soft tissue injuries to lower back; claimant was a self-employed removalist but after the accident commenced landscaping business; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).
Decision date: 21 August 2023 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Chandi v Busways Group Pty Ltd [2023] NSWPIC 417
Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 38(2); the respondent accepts the applicant sustained injury to his left shoulder in the course of his employment with the respondent; the respondent disputes the applicant sustained injury to his neck to which his employment is a substantial contributing factor to injury; the respondent disputes the applicant sustained consequential condition in his right shoulder and the respondent disputes the applicant is likely to continue to indefinitely have no current work capacity resulting from injury sustained in the course of his employment with the respondent as prescribed by section 38(2); Held – the applicant sustained injury to his neck in the course of his employment with the respondent with his employment being a substantial contributing factor to injury; the applicant sustained consequential condition in his right shoulder; the applicant is likely to continue indefinitely to have no current work capacity from injury sustained in the course of his employment with the respondent and has entitlement to weekly compensation payable under section 38(2).
Decision date: 16 August 2023 | Member: Jacqueline Snell
Clarke v City of Ryde [2023] NSWPIC 418
Lump sum compensation claim for accepted lumbar spine, scarring, cardiovascular, and disputed cervical and thoracic spines; possibility of injury; EMI (Australia) Ltd v Bes and Kooragang Cement Pty Ltd v Bates considered; nature of injury/pathology found; Bindah v Carter Holt Harvey Wood Products Australia Pty Limited considered; Held – found cervical and thoracic spine injury sustained as result of pleaded injury; matter referred to Medical Assessor.
Decision date: 17 August 2023 | Member: Michael Wright
Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419
Claim for weekly compensation pursuant to section 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987; consideration of Ware v NSW Rural Fire Service, New South Wales v Chapman-Davis, New South Wales v Stockwell (No.2); Held – applicant was not employed in a designated firefighter role but was performing the duties of a firefighter during active fires; the injury was received by the applicant as a ‘firefighter’; the applicant is an exempt worker; no order as to costs.
Decision date: 17 August 2023 | Member: Rachel Homan
Boulton v WGC Crane Group Pty Ltd [2023] NSWPIC 420
Claim for finding of injury to the applicant’s right upper extremity (shoulder) arising from a direct injury on 10 August 2018 or as a consequence of an injury to the left upper extremity (shoulder) and neck on 10 August 2018; Held – the applicant sustained a direct injury to his neck, left shoulder and right shoulder in an accident on 10 August 2018 whilst in the employ of the respondent; the applicant sustained further injury to his right shoulder as a consequence of his consequential reliance on his right arm following initial injury.
Decision date: 18 August 2023 | Member: Lea Drake
Orman v RN and CA Reicheldt Pty Ltd [2023] NSWPIC 421
Workers Compensation Act 1987; whether applicant sustained an injury to his cervical spine and whether the claim for cervical disc surgery is reasonably necessary; section 60 expenses; inaccurate history taken by treating surgeon; subsequent history of injury; assessment of the evidence; Watson v Foxman and Fox v Percy referred to; Held – the applicant has not suffered injury to the cervical spine with the respondent; award for respondent; section 60 expenses.
Decision date: 18 August 2023 | Member: Diana Benk
Staples v Campbelltown City Council [2023] NSWPIC 423
Workers Compensation Act 1987; claim for right knee injuries; claim for costs involved in right total knee replacement recommended by Dr Nouh, in accordance with section 60; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to section 4(b)(ii) due to the nature of his employment duties with the respondent; Kelly v Western Institute NSW TAFE Commission, Federal Broom Co Pty Limited v Semlitch, AV v AW, Tizzone v F & K Electrics Pty Limited, Volkswagen Financial Services Australia Pty Limited v Mokohar, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond and, Rural Press Limited v Hancock considered; consideration as to what is the deemed date of any injury found in accordance with section 16; consideration of whether the right total knee replacement recommended by Dr Nouh is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 23 August 2019 and 1 November 2019, as well as any injury found due to the nature of the applicant’s employment duties with the respondent; Murphy v Allity Management Services Pty Limited, Rose v Health Commission (NSW), Diab v NRMA Limited considered; Held – the applicant sustained an injury to his right knee in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with section 4(b)(ii) due to the nature of his employment duties with the respondent; the deemed date of that injury is 14 May 2021 in accordance with section 16 of the Act; the right total knee replacement surgery proposed for the applicant by Dr Nouh is reasonably necessary medical treatment for him, as a result of his injuries on 23 August 2019, 1 November 2019, and 14 May 2021; award in favour of the applicant; the respondent is to pay for the costs of and incidental to the right total knee replacement surgery proposed for the applicant by Dr Nouh pursuant to section 60.
Decision date: 21 August 2023 | Member: Gaius Whiffin
Burton v Leeton Shire Council [2023] NSWPIC 424
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 as a result of injury to the left knee on three separate dates resulting in the same pathology in the knee; the respondent claimed that the quantum of the compensation should be determined having regard to the first date of injury; the applicant claimed it should be determined having regard to the last date of injury; consideration of Presidential decisions in Department of Juvenile Justice v Edmed, Trustees of The Roman Catholic Church for the Diocese of Parramatta v Barnes, the Court of Appeal decision in Ozcan v MacArthur Disability Services Ltd, and other decisions of members of the Commission; the applicant presented his case on the basis of the one injury occurring on three separate dates causing the one level of whole person impairment assessed by the Medical Assessor; Held – finding that the applicant was entitled to section 66 compensation calculated with reference to the last date of injury pleaded.
Decision date: 21 August 2023 | Member: Brett Batchelor
Cherry v Murrays Australia Pty Ltd [2023] NSWPIC 425
Claim for permanent impairment for psychological injury; worker claims that she was the victim of an assault by a work colleague after a Christmas party; whether worker sustained a psychological injury as a result of that assault; reference to Nguyen v Cosmopolitan Homes in determining if assault occurred; Held – satisfied on the balance of probabilities that assault occurred as described by worker; not satisfied from a review of the evidence that the worker sustained a psychological injury as a result of the assault; award for the respondent.
Decision date: 22 August 2023 | Member: John Isaksen
Myrvang v Australian Turf Club Limited [2023] NSWPIC 426
Workers Compensation Act 1987; claim for weekly payments; whether the effects of the work injury to the lower back had ceased; the extent of incapacity for work; whether the applicant is entitled to receive weekly payments of compensation having ceased to live in Australia (section 53); Held – the worker continues to suffer the effects of the work injury; awards of weekly payments of compensation for various periods of total and partial incapacity; section 53 has no effect upon the awards of weekly payments of compensation to be made to the worker because the worker has had no incapacity for work which allows for such payments to be made since she ceased to live in Australia.
Decision date: 22 August 2023 | Member: John Isaksen
Myers v Andrew Miedecke Motors Pty Ltd [2023] NSWPIC 427
Existing Certificate of Determination (COD) for whole person impairment (WPI) following medical assessment and subsequent appeal upholding medical assessment; applicant had undergone two surgical procedures at time of medical assessment but underwent further surgery following it; application under section 57 of Personal Injury Commission Act 2020 for reconsideration to revoke COD regarding original WPI; respondent had the applicant examined for purposes of section 39 of Workers Compensation Act 1987 producing increased WPI; foreshadowed work injury damages claim; worker claims a deterioration of his condition and/or additional relevant information that was not previously available; whether Medical Assessor had regard to alleged risk of future surgery; Held – COD revoked and matter remitted to the President for referral for further medical assessment.
Decision date: 23 August 2023 | Member: Christopher Wood
Bakiir v Serco Australia Pty Ltd [2023] NSWPIC 428
Cervical spine injury; injury disputed; factual dispute as to whether injurious event took place at all; evidence weighed in the balance; Held – satisfied, on the balance of probabilities, that the cervical spine injured as alleged; lump sum claim and accordingly matter remitted to the President for referral to a Medical Assessor; award for the applicant.
Decision date: 23 August 2023 | Member: Jane Peacock
Motor Accidents Medical Review Panel Decisions
Allianz Australia Insurance Limited v Chen [2023] NSWPICMP 392
The claimant suffered injury in a motor vehicle accident on 3 December 2020; assessment of threshold injury; Medical Assessor (MA) McGrath certified the lumbar spine (back) radiculopathy was a non-threshold injury; pre-accident history of back pain; Held – claimant had pre-accident back pain but no evidence of radicular pain; at time of examination Panel found no evidence of radiculopathy; as per David v Allianz Australia Ltd the definition of threshold injury can be satisfied at any point following the accident; Panel satisfied MA had objective clinical evidence of L5/S1 radiculopathy at the time of his assessment; certificate of MA confirmed.
Decision date: 15 August 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem, and Dr Tania Rogers | Injury module: Spine
Insurance Australia Limited t/as NRMA Insurance v Caillon [2023] NSWPICMP 393
Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 10 September 2019: the dispute related to the assessment of whole person impairment (WPI); crush injury to right ring finger with fracture to base of proximal phalanx; comminuted fracture DIP joint of right little finger leading to arthrodesis; right knee injury; tear of the right posterior cruciate ligament; tear of the medical meniscus and stress fracture medial tibial plateau; review of certificate of Medical Assessor (MA) Menogue; error where assessment of little finger exceeded the level of impairment for amputation of the finger; MA assessed 5% WPI for right knee injury; 5% WPI for right ring finger, 9% WPI for injury to right little finger and 1% for scarring; total combined assessment of 19% WPI; Held – certificate of MA revoked; Panel assessed 12% WPI for injury to right lower extremity finding severe cruciate ligament laxity; 5% WPI for injury to right upper extremity; 1% WPI for scarring; applying Combined Values Chart total WPI of 17%.
Decision date: 15 August 2023 | Panel Members: Member Susan McTegg, Dr Neil Berry, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb
Khudhair v QBE Insurance (Australia) Limited [2023] NSWPICMP 394
Motor Accident Injuries Act 2017; injury on 3 February 2019; front seat passenger injured by rear end collision; assessment of permanent impairment of various body parts; claimant re-examined; absence of early complaint of right-side symptoms in notes and claim form; AAI Ltd v McGiffen and Bugat v Fox referred to; right leg injury caused by motor accident not medically plausible; inconsistency in right shoulder movement; assessed by analogy and with reference to principles in Nguyen v Motor Accidents Authority; Held – original assessment confirmed.
Decision date: 16 August 2023 | Panel Members: Principal Member John Harris, Dr Shane Moloney, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Foti [2023] NSWPICMP 395
Motor Accident Injuries Act 2017; medical assessment of treatment provided and to be provided by Medical Assessor (MA) Wijetunga and insurer’s review under section 7.26; claimant seriously injured in collision with a tree in September 2018; claimant sustained multiple orthopaedic injuries and severe internal injuries; claimant commenced twice weekly physiotherapy in May 2019; two years later a request for further physiotherapy was rejected by the insurer; at time of assessment claimant had paid for his own physiotherapy treatment in the sum of nearly $6,500; claimant sought a determination that the treatment provided was related to the injuries and reasonable and necessary to help control his pain and that weekly physiotherapy indefinitely was also reasonable and necessary; insurer disputed all treatment as not related and not reasonable and necessary; Held – physiotherapy provided or to be provided is related to the lower limbs and lower back injured in the accident; discussion about principles of physiotherapy treatment which is to improve strength and functionality; physiotherapy is not recommended for pain management beyond the acute phase of injury; some physiotherapy provided to the date of the review is reasonable and necessary; some treatment for a further year reasonable and necessary; weekly physiotherapy treatment indefinitely is not reasonable and necessary; certificate of MA Wijetunga revoked.
Decision date: 16 August 2023 | Panel Members: Member Belinda Cassidy, Dr Trudy Rebbeck, and Dr Margaret Gibson | Injury module: Treatment type: Physiotherapy treatment
Kacarova v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 397
Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Cameron and claimant’s review under section 7.26; claimant injured in intersection collision in November 2018; claimant alleged injuries to her head (brain) neck, chest, arms and left shoulder and conceded no impairment to arms or chest; main issue was cause of vertebral artery dissection (at C3 level) and whether ongoing “dizziness” related to that injury and caused by the accident; Held – Panel not satisfied claimant sustained a brain injury; Panel satisfied claimant injured her neck and that vertebral dissection was caused by the accident; neck injury assessed under chapter 3 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) as Diagnosis Related Estimate (DRE) II at 5%; vertebral dissection caused impairment to central nervous system causing either impaired gait or altered consciousness and assessed under chapter 4 of AMA 4 at 6%; Panel satisfied left shoulder injury caused by accident resulting in impaired range of motion; right (uninjured) shoulder used as a baseline; left shoulder impairment 3%; total impairment 14% and certificate of MA Cameron revoked.
Decision date: 17 August 2023 | Panel Members: Member Belinda Cassidy, Dr Robin Fitzsimons, and Dr Margaret Gibson | Injury module: Spine, Upper Limb and Nervous System (Neurological)
Workers Compensation Medical Appeal Panel Decisions
State of New South Wales (Northern NSW Local Health District) v Cox [2023] NSWPICMP 398
Psychological injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, employability; Held – the ratings in this class was open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed.
Decision date: 18 August 2023 | Panel Members: Member Jane Peacock, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological
Appeal from assessment of whole person impairment (WPI); whether Medical Assessor erred in assessing social and recreational activities; whether he erred in assessing concentration persistence and pace; whether he erred in assessing employability; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 18 August 2023 | Panel Members: Member Richard Perrignon, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological
Motor Accidents Merit Review Decisions
Mitwari v Allianz Australia Insurance Limited [2023] NSWPICMR 43
Motor Accident Injuries Act 2017; dispute about whether the insurer is entitled to refuse payment of statutory benefits where workers compensation may be payable under section 3.35; whether reasonable grounds to consider workers compensation is or may be payable; failure to comply with insurer’s request to make a workers compensation claim; whether it is necessary for it to be reasonable in the circumstances to require the claimant to make a workers compensation claim; employer not insured for workers compensation; where claim would be against the Nominal Insurer; where claimant or their company may be exposed to liabilities under the Workers Compensation Act 1987, sections 140, 145 and 155; Held – the reviewable decision is affirmed.
Decision date: 15 August 2023 | Merit Reviewer: Katherine Ruschen
Schmahl v AAI Limited t/as GIO [2023] NSWPICMR 44
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings; meaning of earnings; schedule 1, clause 4; self-employment; ongoing business expenses; COVID-19; Allianz Insurance Australia Limited v Shahmiri referred to; whether earnings as an earner are the gross profit or net income of the business; whether statutory benefits available for property damage to vehicle; Held – the reviewable decision is affirmed.
Decision date: 24 August 2023 | 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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