Legal Bulletin No. 94

Issued 20 January 2023

Welcome to the ninety-fourth 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

Allianz Australia Insurance Limited v Brown [2022] NSWPIC 747

Settlement approval; 65 year old male; rider of a motorcycle involved in a collision with the insured motor vehicle; sustained broken left collarbone and extensive bruising and abrasions; underwent surgery, being an open reduction internal fixation of the fractured left clavicle; further surgery to have the hardware removed; no allegation of contributory negligence; insurer conceded the claimant is entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 15 December 2022| Member: David Ford

Allianz Australia Insurance Limited v Obeid [2022] NSWPIC 748

Assessment of claim for damages under Motor Accidents Compensation Act 1999; liability wholly admitted; future out-of-pocket expenses; future commercial care; past economic loss; future loss of earning capacity awarded as a buffer; Held - the amount of damages assessed in respect of this claim is $80,750 plus assessed costs and statutory reductions.

Decision date: 21 December 2022| Member: Gary Patterson

Sansour v Allianz Australia Insurance Limited [2023] NSWPIC 13

Application for statutory benefits; more than eighteen months after the motor accident; sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017; whether a full and satisfactory explanation for delay in making the claim; Held – late claim for statutory benefits may be made after the time required; claimant has a full and satisfactory explanation; insurer advised claimant that his claim was late; claimant also had legal advice but delayed making a claim; claimant suffered from a history of mental illness, was severely affected by his mother’s illness and death and also had other difficulties in his personal life such as to flooding events and COVID-19 illness; legal costs awarded to the order of $1660 plus GST.

Decision date: 13 January 2023| Member: Ray Plibersek

Workers Compensation non-Presidential Member Decisions

Aircair Aviation Moree Pty Ltd v Dillon & Ors [2022] NSWPIC 746

Claim in respect of death of worker; both liability and dependency of respondents admitted; the respondents are the parents of the deceased and were dependent upon him for support at the time of his death; the evidence discloses there were no other dependents of the deceased; Held – in the circumstances, an apportionment of 50% of the benefit sum to each of the respondents is appropriate; in circumstances such as this matter where a claim is made and proceedings brought on the basis of dependency, interest on the benefit sum should be payable only from the date where the claim is duly made; Kaur v Thales Underwater Systems followed; letter sent from the respondents’ solicitors to the applicant’s insurer in August 2022 in which a claim was made; the respondents’ capacity as legal personal representative was insufficient to ground a claim for interest in circumstances where the claim is ultimately brought on the basis of dependency; in such circumstances, interest is only payable once the claim is duly made, that is from the time full particulars of dependency are provided; the provision of statements by the respondents on 17 October 2022 setting out their dependency on the deceased constituted a duly made claim, and accordingly interest is payable from that date.

Decision date: 9 December 2022| Member: Cameron Burge

Secretary Department of Planning and Environment v BIH & Ors [2022] NSWPIC 727

Death claim; determination of dependency, apportionment and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.

Decision date: 16 December 2022| Principal Member: Glenn Capel

Jackson v Secretary, Department of Education [2023] NSWPIC 1

Claim for lump sum compensation; accepted injury to left ankle; whether consequential lumbar spine condition; absence of radiological investigation and support for causal relationship in treating medical evidence; regular complaints of lumbar symptoms and altered gait in records of allied health professionals; contribution of subsequent non work-related events; Held – applicant sustained a consequential lumbar spine condition as a result of the accepted left ankle injury; matter remitted for referral to a Medical Assessor.

Decision date: 9 January 2023| Member: Rachel Homan

Djordjevic v Blacktown City Council [2023] NSWPIC 2

Applicant claims awards in respect of lumbar spine injury and separate psychological injury; seeking two weekly payment awards together with claims under sections 60 and 66 of the Workers Compensation Act 1987 (1987 Act); Held – applicant suffered two separate injuries and two separate incapacities entitling the applicant to two separate awards but in the aggregate not exceeding 80% of pre-injury average weekly earnings (PIAWE); award from 15 February 2021 at 80% of agreed PIAWE; general award section 60 of the 1987 Act for both conditions; matter remitted to the President for referral to Medical Assessors to determine whole person impairment.

Decision date: 9 January 2023| Member: Phillip Young

Acin v Lacin Trades Pty Ltd [2023] NSWPIC 3

Claim for weekly benefits compensation; applicant had accepted injury to right shoulder, right wrist/hand and left wrist; whether applicant sustained work injury to neck; whether the applicant has no capacity to work and had no capacity to work since 5 August 2022; Held – applicant sustained personal injury to his neck, right shoulder, right wrist/hand and left wrist with a date of injury of 15 October 2020; the applicant’s employment was the substantial contributing factor to his injury; the applicant has no capacity to work since 5 August 2022; award made in favour of the applicant pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act); the respondent is to pay the applicant $1,480 per week from 5 August 2022 to date and continuing pursuant to section 37 of the 1987 Act.

Decision date: 9 January 2023| Member: Karen Garner

Pearce v Secretary, Department of Communities and Justice [2023] NSWPIC 4

Claim for permanent impairment compensation; accepted primary psychological injury under section 4(a) of the Workers Compensation Act 1987 (1987 Act) as a result of an event on 23 July 2020; disputed further psychological injury under section 4(b)(ii) of the 1987 Act arising out of or in the course of employment in the period following 23 July 2020; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Federal Broom Co Pty Ltd v Semlitch, State Transit Authority v El-Achi, AB v AW and Jones v Dunkel considered and applied; Held – the applicant suffered a primary psychological injury arising out of or in the course of her employment with the respondent on 23 July 2020 within the meaning of sections 4(a) and 9A of the 1987 Act; the applicant did not suffer an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition within the meaning of section 4(b)(ii) of the 1987 Act arising out of or in the course of her employment with the respondent in the period following 23 July 2020; the medical assessment arranged by the Personal Injury Commission with a Medical Assessor is confirmed for the assessment of whole person impairment with a date of injury of 23 July 2020.

Decision date: 10 January 2023| Member: Anthony Scarcella

Gazi v Canterbury Bankstown City Council [2023] NSWPIC 5

Claim for payment of medical expenses for psychological injury; dispute previously the subject of a decision and appeal; Canterbury Bankstown City Council v Gazi [2019] NSWWCCPD 14; remitted to determine if reasonable action taken with respect to transfer was the whole or predominant cause of injury; reference to Many Pacific International Hotel v Doyle and The Greater Southern Area Health Service v Walsh; Held – the psychological injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken by the employer with respect to transfer; order for the payment of medical expenses for treatment as a result of injury.

Decision date: 10 January 2023| Member: John Isaksen

Shepherd v Snowy Valleys Council [2023] NSWPIC 6

Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); whether overtime that was worked by the worker in the 12 month period prior to his work injury and not paid to the worker at the time, but rather accrued for later payment or for leave, can be included in the calculation of PIAWE; reference to decisions of Project Blue Sky v ABA and SAS Trustee Corporation v Miles on principles of statutory construction; Held – the monies from overtime worked by the worker in the 12 month period prior to his work injury is to be included in the calculation of PIAWE.

Decision date: 10 January 2023| Member: John Isaksen

Troja v Waverley Council [2023] NSWPIC 7

Claim for compensation with respect to alleged psychological injury by way of aggravation to pre-existing, underlying condition; the applicant was employed for over two decades by the respondent; she has a traumatic background and there is no issue she suffers from a pre-existing psychological condition; applicant alleges a work-related aggravation to that condition and seeks weekly compensation, permanent impairment compensation and payment of reasonably necessary medical and treatment expenses; the respondent denies injury and, in the alternative, alleges any work-related aggravation was due to its reasonable actions with regards to performance appraisal and/ or discipline pursuant to section 11A(1)of the Workers Compensation Act 1987; Held – Award for the respondent.

Decision date: 10 January 2023| Member: Cameron Burge

Jones v Pine Solutions Pty Limited [2023] NSWPIC 8

Application by respondent pursuant to section 57 of the Personal Injury Commission Act 2020 (2020 Act) to reconsider Certificate of Determination (COD) issued by the Personal Injury Commission (Commission) following the issue of a Medical Assessment Certificate (MAC); application for the matter to be referred for further medical assessment or reconsideration pursuant to section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the respondent submitted that the MAC contained an “obvious error”  in accordance with section 57 of the 2020 Act and that the Commission should reconsider both the COD and MAC; Samuel v Sebel Furniture Pty Ltd and Fairfield City Council v McCall (No 2) referred to; Held – the appropriate remedy for the respondent to address the claimed obvious error in the MAC was to pursue an appeal under section 327(3)(a) or (b) of the 1998 Act; application for reconsideration refused.

Decision date: 10 January 2023| Member: Brett Batchelor

Karki v Woolworths Group Limited [2023] NSWPIC 9

Whether the applicant suffered a consequential condition in the lumbar spine and whether the applicant suffered a psychological injury and if so, was it was primary or secondary in nature; Held – finding for the applicant.

Decision date: 11 January 2023 | Member: Michael Inglis

Osborne v Signature Security Group Pty Limited t/as Security Systems [2023] NSWPIC 10

Whether revisional surgery in the form of an L5/S1 instrumental fusion following earlier spinal surgery was reasonably necessary; Held – that the spinal surgery proposed, namely the L3-S1 instrumented fusion, is reasonably necessary.

Decision date: 11 January 2023 | Member: Michael Inglis

Nzobakenga v Costaexchange Pty Ltd [2023] NSWPIC 11

Claim for weekly compensation pursuant to sections 37 and 38 of the Workers Compensation Act 1987 (1987 Act) and a claim for section 60 expenses, with respondent arguing the applicant had recovered from the injury; the respondent also argued that the Personal Injury Commission (Commission) does not have jurisdiction to make an award pursuant to section 38; Held – the Commission has jurisdiction to determine a dispute involving a claim under section 38; Lee v Bunnings Group Pty Ltd distinguished as it was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018; the applicant has no current work capacity and awards for weekly compensation made pursuant to sections 37 and 38(2); general order made for the payment of section 60 expenses.

Decision date: 11 January 2023 | Principal Member: Josephine Bamber

Farrell v Complete Carpet Cleaning Pty Ltd [2023] NSWPIC 12

Claim for declaration of section 60(5) of the Workers Compensation Act 1987 costs of bilateral hip replacement surgery; applicant had prior accepted bilateral knee replacement surgery; consideration of medical opinion; preference for treating surgeon’s opinion that hip condition was a consequential condition caused or materially contributed to by accepted injury to knees; Held – award by way of declaration in favour of the applicant accordingly.

Decision date: 11 January 2023 | Member: Phillip Young

Motor Accidents Medical Review Panel Decisions

Lim v QBE Insurance (Australia) Limited [2022] NSWPICMP 529

The claimant suffered injury in a motor vehicle accident on 20 December 2018; the dispute related to the assessment of permanent impairment under the Motor Accident Injuries Act 2017; traumatic injury alleged to groin/male reproductive organs; review of Medical Assessment Certificate (MAC); Held –no evidence of traumatic injury to male reproductive/groin caused by the accident; no objective evidence of injury to the bladder and urethra associated with urinary incontinency as per clause 6.252 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition Guides (AMA 4 Guides); no assessable impairment of urinary incontinence; no objective pathology for male sexual dysfunction as per clause 6.251 of AMA 4 Guides; no assessable impairment of male sexual dysfunction; MAC confirmed.

Decision date: 23 December 2022| Panel Members: Member Susan McTegg, Dr John Carter and Dr Michael Couch | Injury module: Urinary and Reproductive

Insurance Australia Limited t/as NRMA Insurance v Trkulja [2022] NSWPICMP 533

Review of Medical Assessment Certificate (MAC) dated 17 March 2022; finding of 17% whole person impairment; 27 July 2022 Panel advises of preliminary view that clinical examination of the claimant by the Panel not required; further submissions by insurer that inconsistencies noted in insurer’s medico legal opinion should be put to claimant by Panel; Sydney Trains v Batshon, Partridge v IAG Ltd T/as NRMA Insurance and clause 4(a)(i)-(ii) of the Review Panel Practice Note 3/2005, considered; insurer’s interpretation definition of “medical records” of clause 1.41 of the Motor Accidents Authority Permanent Impairment Guidelines, 1 October 2017 (Guidelines) rejected as not included in clause 1.18.1; each of the medico-legal reports relied on by insurer found to contravene Guidelines and procedurally unfair  as inconsistencies not put to claimant at time of medico-legal examination; QBE v Shah holding that only inconsistencies which are material need to be put to claimant followed by Panel; no evidence from insurer that alleged inconsistencies are material; application for clinical examination of the claimant rejected; causation; conflicting expert reports whether the force of the collision in which the claimant was involved was sufficient to cause the alleged injuries; Glossary page 316 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, clause 1.9 of Motor Accident Guidelines and Jones v NRMA  followed; Amin v Vidal followed regarding reliance on photographs by accident reconstruction experts; Fox v Percy applied; “apparent logic of events” at odds with accident reconstruction reports relied on by insurer; claimant’s expert opinion not challenged by insurer’s experts; Panel not persuaded that forces involved in the collision were insufficient to cause claimant’s injuries; Held –MAC confirmed.

Decision date: 9 December 2022| Panel Members: Member Robert Foggo, Dr Drew Dixon and Dr Geoffrey Curtin| Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Whitehurst [2023] NSWPICMP 4

The claimant suffered injury in a motor accident on 3 May 2018 when her vehicle was rear-ended by the insured vehicle; the medical disputes concerned the degree of impairment of the injury caused by the motor accident was greater than 10% and the provision of various physiotherapy; the claimant had ongoing dysmetria in the cervical spine assessed at 5%; the claimant had a pre-existing condition in the lumbar spine by reason of the prior L5/S1 fusion which is assessed at 20%; the pre-existing condition is evident from the CT scan dated 29 December 2017 which showed previous L5/S1 laminectomy and fusion; the current symptoms are at the same level of the impairment as the pre-existing impairment and there is no additional impairment; there was no injury to the femoral nerve because this is medically inexplicable from a rear-end collision; the claimant had consistent complaints of femoral nerve discomfort prior to the motor accident; ongoing complaints after the motor accident are explained in their entirety by the pre-existing condition; the report by the claimant was that shoulder loss of movement was due to interscapular pain; clinically, interscapular pain should not cause loss of shoulder movement; the interscapular pain was muscular related and probably due her kyphosis/posture; there was no traumatic injury to either shoulder; the present examination did not establish loss of shoulder movement due to the cervical spine injury; accordingly, there is no shoulder impairment caused by the motor accident; findings made that the physiotherapy under the treatment plan were reasonable and necessary and caused by the accident; Held – claimant assessed at 5% permanent impairment in respect of the cervical spine.

Decision date: 12 January 2023 | Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Bawa v South Eastern Sydney Local Health District [2023] NSWPICMP 1

Whether Medical Assessor (MA) should have made a diagnosis that the appellant had complex region pain syndrome (CRPS) and assessed appellant’s permanent impairment by reference to Table 17-1 of the Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 (Table 17-1) Criteria); MA did not address all criteria in Table 17-1 within the Medical Assessment Certificate (MAC); consequently MAC contained a demonstrable error; appellant re-examined and findings from that re-examination revealed appellant did not have symptoms in each of the four categories of step 2 of Table 17-1 or signs in each of the four categories of step 3 of Table 17-1; accordingly a diagnosis of CRPS could not be made; Held – MAC confirmed.

Decision date: 9 January 2023| Panel Members: Member Marshal Douglas, Dr Roger Pillemer and Dr James Bodel | Body system: Cervical Spine and Left Upper Extremity

Collinson v G M Kane & Sons Pty Ltd [2023] NSWPICMP 2

Whether deduction of 75% under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was correct based on the evidence;; Held – deduction not appropriate; the deduction to be made under s 323(1) is 50%; Medical Assessment Certificate revoked.

Decision date: 9 January 2023 | Panel Members: Member Marshal Douglas, Dr James Bodel and Dr John Brian Stephenson | Body system: Right Lower Extremity

Nguyen v Integricare Pty Ltd [2023] NSWPICMP 3

Medical Assessor (MA) found appellant’s permanent impairment of her thoracic spine correlated with criteria of diagnosis related estimate (DRE) II; whether appellant had compression fracture of thoracic vertebra and met the criteria of DRE IV; the issue of whether appellant had fracture of thoracic vertebra was a medically contestable issue based on evidence available to MA; MA required to discuss all relevant evidence relating to that issue; MA did not and consequently the Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel called for further medical records relating to the issue, specifically the films of all scans done of the appellant’s thoracic spine; those further medical records revealed the appellant did not have a fracture of her thoracic vertebra but rather a congenital vertebral abnormality; Held – MAC confirmed.

Decision date: 9 January 2023 | Panel Members: Member Marshal Douglas, Dr Drew Dixon and Dr David Crocker | Body system: Cervical and Thoracic Spine and Left Lower Extremity

Motor Accidents Merit Review Decisions

BHD v QBE Insurance (Australia) Limited [2022] NSWPICMR 73

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA Act) as applied by section 3.39 of the 2017 Act ; limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA Act; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.

Decision date: 16 December 2022 | Merit Reviewer: Katherine Ruschen

Cortes v QBE Insurance (Australia) Limited [2023] NSWPICMR 1

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 earning capacity under schedule 1, clause 7 ; meaning of post-accident earning capacity under schedule 1, clause 8; qualifications, training, skills and experience; suitable employment; whether insurer has improperly excluded injuries said to be a result of the motor accident; whether insurer is in breach of clause 4.56 of the Motor Accident Guidelines; Held – the reviewable decision is affirmed.

Decision date: 11 January 2023 | Merit Reviewer: Katherine Ruschen

BFH v Allianz Australia Insurance Limited [2023] NSWPICMR 2

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA Act); as applied by section 3.39 of the 2017 Act; limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA Act; meaning of close member of the family of the victim; meaning of being put in peril; meaning of pure mental harm; Held – the reviewable decision is affirmed.

Decision date: 11 January 2023 | Merit Reviewer: Katherine Ruschen

Babaee v QBE Insurance (Australia) Limited [2023] NSWPICMR 3

Merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1); where the claimant received gross earnings as a self-employed cement renderer paid in cash and by way of bank transfer deposits; Held – the reviewable decision is set aside.

Decision date: 12 January 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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