Legal Bulletin No. 95

Issued 27 January 2023

Welcome to the ninety-fifth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Member Decision

State of New South Wales v Kanajenahalli [2023] NSWPICPD 1

Applications involving federal jurisdiction; Division 3.2 of the Personal Injury Commission Act 2020; Citta Hobart Pty Ltd v Cawthorn, Love v Attorney General (NSW), R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd and Brandy v Human Rights & Equal Opportunity Commission considered and applied.

Decision date: 18 January 2023 | Before: Acting Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Al-Khameesi v Allianz Australia Insurance Limited [2023] NSWPIC 23

Motor Accident Injuries Act 2017; whether exceptional circumstances exist such that the Personal Injury Commission can permit legal costs incurred by the claimant for the purposes of section 8.10(4)(b); claimant sought payment of legal costs (counsel’s fees) in connection with miscellaneous claims matter; San v Rumble (No 2), Ho v Professional Services Review Committee No 295 and AAI Ltd trading as GIO v Moon applied; Held – when taken together, the factual disputes in relation to the circumstances in which the accident occurred, the legal issues in dispute, the medical issues relevant to the dispute, the claimant’s limited English language skills and the work associated with preparing statements and submissions supported a finding that exceptional circumstances existed.

Decision date: 20 January 2023 | Senior Member: Brett Williams

QBE Insurance (Australia) Limited v Silcocks [2023] NSWPIC 24

Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for non-economic loss; claimant now 88 years of age; injured as passenger; degloving injury requiring debridement (x4) and skin graft to left lower leg; Weber A fracture of left ankle; scarring left lower leg and thigh; assessments of whole person impairment 9%; notwithstanding, no entitlement non-economic loss offer of settlement by insurer; Held – claimant sustained serious injury; accident has adversely impacted the claimant’s quality of life with no likelihood of improvement; appropriate compromise having regard to serious injury sustained and where no legal obligation on insurer to make any allowance for non-economic loss; settlement approved.

Decision date: 20 January 2023 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

BFI v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724

Claim for lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 and interest pursuant to section 109(1) of the Workplace Injury Management and Workers Compensation Act 1998; liability for payment of lump sum accepted; disputed claim for interest; consideration of Aafjes v Kearney, TNT Group 4 Pty Ltd v Halioris, Wratten v Kirkpatrick, Holdlen Pty Ltd v Walsh, McCafferty’s Management Pty Ltd v Pimlott, So v So, Youseph v Homebush Unit Trust t/as Primo Smallgoods, Kaur v Thales Underwater Systems Pty Limited, Haidary v Wandella Pet Foods Pty Ltd, Pheeney v Doolan, Bennet v Jones & Anor, Zona Coatings Pty Ltd v Zrinski and Beves v Patrick Stevedores No 2 Pty Ltd & Anor; Held – apportionment of the death benefit between claimants and awards of interest.

Decision date: 15 December 2022 | Senior Member: Kerry Haddock

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

Gleeson v Health Services Union NSW [2023] NSWPIC 15

Claim for weekly payments of compensation and permanent impairment for psychological injury; respondent disputes claim due to failure by the worker to give notice of injury and make a claim for compensation within the time required, that the worker did not sustain injury in the course of her employment with the respondent, and the extent of any incapacity which results from any psychological injury; worker alleges ignorance of the six month period required to make a claim for compensation and another reasonable cause for failure to make a claim within the required time; reference to Albury Real Estate P/L v Rouse on both excuses for delay given by the worker; reference to Garratt v Tooheys Ltd on ‘other reasonable cause’ for failure to make a claim in time required; Held – respondent not prejudiced by failure by worker to give notice of injury as soon as possible; worker does not satisfy the excuses of ignorance or other reasonable cause to allow her to receive compensation benefits.

Decision date: 13 January 2023 | Member: John Isaksen

Cashion v Energy and Water Ombudsman [2023] NSWPIC 16

Undisputed left shoulder injury as result of a fall on 24 October 2014; dispute as whether applicant sustained injury to the head in the same fall and as to causation of following Meniere’s Disease; consideration of lack of contemporaneous medical records of head injury; Mason v Demassi and Davis v Council of the City of Wagga Wagga considered and applied; consideration of causation and common sense evaluation of the chain of causation; Kooragang Cement Ltd v Bates applied; Held – applicant sustained head injury pursuant to section 4(a) of the Workers Compensation Act 1987; injury simpliciter, as a result of fall on 24 October 2014, resulting in Meniere’s Disease; matter referred to a Medical Assessor (MA) without determining claim for weekly compensation pending outcome of assessment of permanent impairment by the MA.

Decision date: 16 January 2023 | Member: Michael Wright

Clews v Tritton Resources Pty Limited [2023] NSWPIC 17

Claim for psychological injury; claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) as well as claim for weekly payments compensation;claim for lump sum disputed by respondent and medical assessment required pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); terms of medical assessment referral to be determined; consideration of applicant’s statement, medical reports and other treatment records, factual evidence, and claim correspondence; consideration of whether any of the documents attached to the respondent’s reply should be excluded from the medical assessment referral (as well as excluded from evidence in the proceedings); section 73 of the 1998 Act due to failure to attach those documents to the respondent’s liability notices; in accordance with clause 41 of the Workers Compensation Regulation 2016 (the Regulation); Chown v Tony Madden Refrigeration Transport Limited considered; Held – both of the respondent’s liability notices were decisions within clause 41(2) of the Regulation; as a result, pursuant to clause 41(3) of the Regulation, the respondent was required to include with the notices any reports in its possession, as described in clause 41(1) of the Regulation; it did not do; the consequence of the respondent’s failure in this regard, pursuant to sections 73(3)(b) and 73(3)(c) of the 1998 Act, is that the reports that it did not include are not admissible in proceedings before the Personal Injury Commission and are unable to be disclosed to a Medical Assessor (MA); there is no discretion to determine otherwise; the pages that are to be withdrawn from the respondent’s Reply in this regard are pages 9-207 inclusive, 283-325 inclusive, 572, 575-576 inclusive, 579, 581, 583, 592, 594-623 inclusive, and 644-788 inclusive; the dispute is to now proceed to medical assessment and the terms of the referral made on 10 November 2022 are amended so that the pages withdrawn from the respondent’s reply are not to be reviewed by the MA.

Decision date: 17 January 2023 | Member: Gaius Whiffin

Harris v Jalco Automotive Pty Ltd [2023] NSWPIC 18

Workers Compensation Act 1987; claim for psychological injury; claim for entitlement pursuant to section 66;consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of the reliability of evidence; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b); in relation to which her employment with the respondent was the main contributing factor; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K and AV v AW considered; Held – the applicant sustained a ‘disease’ injury (being the aggravation, acceleration, exacerbation or deterioration in the course of her employment of her major depressive disorder); section 4(b)(ii); in relation to which her employment with the respondent was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; dispute remitted to the President of the Personal Injury Commission for medical assessment referral in relation to the degree of the applicant’s whole person impairment.

Decision date: 17 January 2023 | Member: Gaius Whiffin

Du v Tian Tong Group Pty Ltd [2023] NSWPIC 19

Lump sum claim for injury to the cervical spine and cervical spinal cord; whether injury to spinal cord occurred; Held – every medical practitioner in the matter, including the respondent’s neurosurgeon, accepted that injury in serious motor vehicle accident involved both the cervical spine, and the cervical spinal cord;  the respondent’s neurosurgeon then contradicted his earlier advice and stated that the applicant did not suffer a spinal cord injury, but the respondent’s neurosurgeon applied the wrong criteria to the definition of a spinal cord impairment; matter remitted for whole person impairment assessment for both the cervical spine and the cervical spinal cord.

Decision date: 18 January 2023 | Member: John Wynyard

Jarvis v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 20

Claim for weekly benefits and medical expenses for psychological disease injury, pursuant to sections 4(b(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); applicant unreliable historian regarding previous psychological conditions and alcohol abuse; first respondent disputed that the applicant had given notice of injury and made a claim in accordance with sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); both respondents disputed injury; substantial contributing factor; main contributing factor; incapacity and necessity for medical treatment; Held –the applicant failed to give notice of injury to the first respondent in accordance with section 254 of the 1998 Act and did not establish that special circumstances applied; award for the first respondent; the applicant sustained the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to section 4(b)(ii) of the 1987 Act, in the employ of the second respondent; the applicant has at all material times had no work capacity; award for the applicant against the second respondent for weekly benefits and medical expenses.

Decision date: 18 January 2023 | Senior Member: Kerry Haddock

McSharry v Crown Equipment Pty Ltd [2023] NSWPIC 21

Claim by worker for cost of surgery to the ulnar nerve at the elbow; employer disputed that the need for surgery resulted from employment injury; while the worker displayed clear-cut signs of median nerve compression at the wrist following the injury, he did not develop symptoms of ulnar nerve compression until several months after the cessation of the work which allegedly caused the condition; discussion of importance of temporal gap between injury and the onset of symptoms; despite the interval between cessation of work and manifestations of ulnar nerve symptoms opinion of applicants treating hand surgeon that there was a causal nexus between work and ulnar nerve compression accepted in preference to respondents qualified neurologist; Held –respondent ordered to pay the costs of and incidental to the ulnar nerve surgery.

Decision date: 18 January 2023 | Member: Paul Sweeney

Riddett v Manpower Services (Australia) Pty Ltd [2023] NSWPIC 22

Claim for lump sum compensation for onset of gallstones; whether expert opinion based on correct assumptions; Held – applicant’s expert relied on statements by applicant as to relevant matters occurring since 2005 which were largely unsupported, vague and inconsistent both internally and with contemporaneous evidence; Cruceanu v Vix Technology (Australia) Limited and ACW v ACX considered; award for the respondent.

Decision date: 18 January 2023 | Member: John Wynyard

Workers Compensation President’s Delegate Decision

Daher v Klassic Kleen Pty Ltd [2023] NSWPIC 14

Workers Compensation Act 1987; applicant suffered accepted injury to his abdomen lower back, both upper limbs, neck and knees; applicant received 130 weeks of weekly benefits pursuant to sections 36 and 37; applicant was recently diagnosed with cancer rending him unfit for work; whether the applicant has “no current work capacity” and is entitled to weekly benefits under section 38; Held – applicant has not established on the balance of probabilities that he has no current work capacity as a result of a compensable injury; no evidence to support that the applicant is likely to continue indefinitely to have no current work capacity; application dismissed.

Decision date: 11 January 2023 | President’s Delegate: Belinda Gamble

Motor Accidents Medical Review Panel Decisions

Bajada v QBE Insurance (Australia) Limited [2023] NSWPICMP 5

Motor Accident Injuries Act 2017;claimant was a passenger in a bus; she was trapped and crushed by the rear bus door when exiting; injuries to arms and shoulders, abrasions on right ankle and shock; Held – original medical certificate found that all injuries sustained by claimant were a minor injury; original medical certificate set aside; claimant not re-examined; claimant gave some inconsistent history not put to claimant; Panel gave no weight to any inconsistency and made no adverse findings; Panel reviewed medical records, x-rays, ultrasounds and magnetic resonance imaging (MRI) scans which showed long standing pre-existing rotator cuff tears to both shoulders, chronic degenerative age-related changes; injuries were a minor injury and not attributable to motor accident.

Decision date: 9 January 2023 | Panel Members: Member Ray Plibersek, Dr Shane Moloney and Dr Geoffrey Stubbs| Injury module: Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Stanoevski [2023] NSWPICMP 6

The claimant suffered injury in a motor accident on 17 April 2017 when standing on the roadway next to her car; this was a medical dispute about whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the insurer disputed that the claimant had been hit by a motor vehicle and contended, through its expert report, that the injuries were most likely caused by falling down steps at her premises; this submission was based on the absence of extensive injury in the hospital notes and the opinion provided by its expert; the doctors on the Panel have the expertise to comment on injuries caused by motor vehicle accidents, likely more so than the respective experts qualified by the parties; the claimant otherwise presented in a credible fashion during the medical examination; contrary to the insurer’s submission, the various accounts were not inconsistent; the symptoms presented at hospital were consistent with the claimant being struck by the side mirror of a car travelling at a much lesser speed than 50 kmph and falling to the ground; the presence of the haematuria at hospital tends to support the claimant’s contention of being struck; the claimant also presented with pain but no bruising to the back; the experts qualified by the parties accepted that impact at a speed near 20 kmph would not necessarily cause bruising; findings made that cervical and lumbar spine soft tissue injuries had resolved; the impact and/or fall from the motor accident unmasked the previously asymptomatic calcific Achilles tendinopathy, either by forceful contraction of the calf muscles to resist the fall or by forced movement of the right ankle beyond its normal range; the right knee condition and subsequent knee replacement was not causally related to the motor vehicle accident; the limping did not aggravate any degenerative changes in the right knee or rendered it symptomatic; the claimant was symptomatic in the right knee for a significant period in 2016 prior to the motor accident; given the extensive degenerative changes in the right knee shown in the 2016 scans, the osteoarthritis would progress of its own accord over time; Held – claimant assessed at 5% permanent impairment in respect of the right ankle.

Decision date: 10 January 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Curtin and Dr Geoffrey Stubbs | Injury module: Spine and Lower Limb

Usher v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 7

The claimant suffered injury in a motor accident on 3 November 2018; the insured vehicle was travelling at speed and collided with the claimant; this was a medical dispute about whether the degree of impairment of injury caused by the motor accident was greater than 10%; the right knee tibial plateau fracture was assessed at 8% based on loss of flexion contracture; the condition had deteriorated over time because of the seriousness of the injury and the presence of traumatic osteoarthritis; this explained the Panel’s assessment was greater than previous assessments undertaken by some doctors in this matter; the serious right leg injury resulted in altered gait and ongoing effects to the lumbar spine; this consequential effect is ongoing and explains why the current assessment (diagnosis related estimate (DRE) Category II) was worse than previously assessed by other doctors; the impaired gait from the injury to the right knee placed stress on the left knee but caused no assessable impairment in that part; Held – claimant assessed at 14% permanent impairment in respect of the right knee, scarring and lumbar spine.

Decision date: 10 January 2023 | Panel Members: Principal Member John Harris, Dr Alan Home and Dr Lesley Barnsley | Injury module: Spine, Upper and Lower Limb

AAI Limited t/as AAMI v Sefian [2023] NSWPICMP 8

Motor Accidents Injuries Act 2017; medical dispute about minor injury under section 1.6 and review of Medical Assessor’s assessment under section 7.26; claimant involved in rear-end collision on M1 motorway and claimed injury to lumbar and cervical spine, both knees, right hip and right wrist; claimant was a builder who had anterior cruciate ligament (ACL) repair in right knee in 2010; claimant concedes only injury in dispute was right knee; right knee magnetic resonance imaging (MRI) revealed medical meniscus tear; insurer argued not caused by the accident due to mechanism of injury and first mention of knee injury six weeks after the accident; Held– no evidence of knee symptoms between 2010 and accident; mechanism involved claimant firmly braking with his right leg and knee hyper-extended and first complaint of knee pain was in claim form and certificate of capacity dated less than three weeks after accident; Panel accepts tear caused by accident and therefore injury to right knee is not a minor injury; no matter of principle.

Decision date: 10 January 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron and Dr Geoffrey Curtin | Injury module: Spine, Upper and Lower Limb

McShane v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 9

Motor Accidents Injuries Act 2017; the claimant suffered injury in a motor accident on 15 January 2019; medical dispute under section 7.26 about whether the motor accident caused permanent impairment greater than 10%; one Medical Assessor examined and assessed the claimant; applied TEMSKI scale to assess minor scarring; assessed left wrist with 5% permanent impairment; Held – claimant reassessed at 10% permanent impairment; same rating but different outcome for body parts; previous Medical Assessment Certificate revoked.

Decision date: 10 January 2023 | Panel Members: Member Terence O’Riain, Dr Clive Kenna and Dr Margaret Gibson| Injury module: Spine, Upper Limb and Minor Skin

Momand v Allianz Australia Insurance Limited [2023] NSWPICMP 10

Motor Accidents Injuries Act 2017; medical dispute about minor injury and whole person impairment (WPI); review of Medical Assessor’s (MA) assessment of temporomandibular joint (TMJ) and dental injuries under section 7.26; claimant injured in t-bone collision; as he got out of his car claimant said that the door sprang back and hit him in the face causing TMJ pain and fracture to tooth or bridge over tooth; first attendance on doctor 11 days after accident with complaints of TMJ symptoms; first mention of tooth pain five months later; Held–TMJ dysfunction caused by accident and a minor injury resulting in 2% WPI; fracture of tooth or bridge not a minor injury but not caused by accident and no additional impairment; discussion of whether tooth enamel is a hard or soft tissue and whether an injury to a tooth or bridge would be a minor or non-minor injury.

Decision date: 12 January 2023 | Panel Members: Member Belinda Cassidy, Dr David Sykes and Dr Geoffrey Curtin | Injury module: Minor Dental

Diep v AAI Limited t/as AAMI [2023] NSWPICMP 11

Motor Accidents Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of Medical Assessor’s (MA) assessment under section 7.26; claimant alleged injury to neck, both shoulders and both knees in significant roundabout collision; claimant admitted to hospital with chip fracture to left lateral femoral condyle and suspected fracture of patella; claimant’s medico-legal specialist assessed WPI at 18% in March 2021; MA assessed WPI at 0%; issue as to neck diagnosis related estimate (DRE) I vs DRE II; shoulder impairment and whether right knee injury caused; Held – claimant did not satisfy criteria for DRE II; shoulders had full range of motion and therefore no impairment; right knee not injured in accident based on no record in hospital or GP notes and claimant’s admission that right knee pain commenced months after the accident; three methods of assessment for knee injury discussed; WPI 3%.

Decision date: 13 January 2023 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney and Dr Geoffrey Curtin | Injury module: Spine, Upper and Lower Limb

AAI Limited t/as AAMI v BCT [2023] NSWPICMP 12

Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and review under section 63 of the Medical Assessor’s decisions; claimant had a WPI greater than 10%; claimant child injured at age seven when a passenger in a vehicle driven by her father which collided with another vehicle entering a roundabout; significant collision; claimant was asleep and hit her head and nose on the window; developed symptoms of post-traumatic stress disorder and had limited treatment; Held – claimant’s condition had improved and impairment no longer greater than 10%; no issue of principle.

Decision date: 17 January 2023 | Panel Members: Member Belinda Cassidy, Dr Chris Rickard-Bell and Dr Gerard Chew | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decision

Spence v All Pavement Solutions Pty Ltd [2023] NSWPICMP 13

Workplace Injury Management and Workers Compensation Act 1998;left lower extremity injury; total knee replacement after injury; appeal by worker concerned the section 323 deduction of one-half made by the Medical Assessor (MA); account must be taken of the contribution of the pre-existing condition and abnormality of the left knee demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury; the available evidence at odds with a deduction of one-tenth and supported a deduction of one-half as assessed by the MA; Held – Medical Assessment Certificate confirmed.

Decision date: 17 January 2023 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson and Dr Gregory McGroder | Body system: Lumbar Spine, Left Lower Extremity and Scarring

Motor Accidents Merit Review Decision

Akkaoui v Allianz Australia Insurance Limited [2023] NSWPICMR 4

Merit review; Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident earning capacity; schedule 1, clause 7; meaning of post-accident earning capacity; schedule 1, clause 8; employment reasonably available in view of the claimant’s training, skills and experience; weekly benefits under section 3.8; Held – the reviewable decision is set aside.

Decision date: 19 January 2023 | Merit Reviewer: Katherine Ruschen

Motor Accidents Merit Review Panel Decision

Luo v QBE Insurance (Australia) Limited [2022] NSWPICMRP 9

Merit Review; Motor Accidents Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits that are payable under Division 3.3; Schedule 2(1)(a); pre-accident weekly earnings (PAWE); regulated costs; panel review; PAWE calculation; earnings as an earner; COVID-19; jobkeeper payments as business subsidy; jobkeeper payments in PAWE calculation; jobkeeper payments not earnings as an earner; Allianz Insurance Australia Limited v Shahmiri discussed and applied; costs; Held – Merit Reviewer decision affirmed.

Decision date: 22 December 2022 | Merit Review Panel Members: Terence O’Riain, Katherine Ruschen and Elizabeth Medland

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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