Legal Bulletin No. 120

Issued 21 July 2023

Welcome to the one hundred and twentieth 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.

Supreme Court Decisions

Cottom v Scone Racing Club Ltd [2023] NSWSC 779

Workers compensation; judicial review of decision of Appeal Panel dismissing appeal from Medical Assessment Certificate; appeal panel failed to address application to consider further documents and documents themselves; documents claimed to evidence plaintiff’s further deterioration and development of consequential injury post-assessment; operation of Workplace Injury Management and Workers Compensation Act 1998 (NSW) section 328; Held – decision of appeal panel quashed; application and appeal remitted to a differently constituted appeal panel; application for judicial review brought outside three-month time period; UniformCivil Procedure Rules 2005 (NSW), rule 59.10; interests of justice; leave granted to bring application.

Decision date: 6 July 2023 | Before: Schmidt AJ

Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788

Administrative law; judicial review; error of law on face of record; assessment of culpability for motor accident; cessation of statutory benefits; failure to apply correct legal principles; factual finding without evidence; whether material; whether finding of contributory negligence manifestly unreasonable; torts; contributory negligence; motor vehicle colliding with pedestrian; whether contributory negligence greater than 61%; application of Motor Accident Injuries Act 2017(NSW), section 3.11; Held – decision of the member of the Personal Injury Commission dated 21 December 2022 and certificate set aside; the matter is remitted to the Commission for reconsideration by the Commission constituted by a different member.

Decision date: 7 July 2023 | Before: Basten AJ

Todev v AAI Limited t/as GIO [2023] NSWSC 836

Administrative law; judicial review; Motor Accidents Compensation Act 1999 (NSW); decisions of medical assessor and delegate of President of Personal Injury Commission on review application; conflicting reports of psychiatric experts; whether medical assessor applied correct test for causation, gave adequate reasons and disclosed path of reasoning and complied with applicable guidelines; whether delegate engaged with plaintiff’s arguments and complied with section 63; errors established; Held – medical assessment and review determination set aside; the matter is remitted to the Personal Injury Commission to be determined by a different medical assessor according to law.

Decision date: 17 July 2023 | Before: Schmidt AJ

Luck v Workers Compensation Nominal Insurers & Ors [2023] NSWSC 842

Administrative law; judicial review; appeal from Personal Injury Commission Appeal Panel; deterioration; additional relevant information; “purple passages”; Held – Medical Appeal Panel decision is quashed; Certification of Determination dated 22 December 2022 is set aside; the matter is remitted to the President of the Commission for referral to a differently constituted Appeal Panel for determination according to law.

Decision date: 19 July 2023 | Before: Weinstein J

Presidential Member Decision

JELD-WEN Australia Pty Limited v BLH [2023] NSWPICPD 39

Workers compensation; section 4(b)(ii) of the Workers Compensation Act 1987; main contributing factor; AV v AW applied; Held – the Certificate of Determination dated 2 June 2022 is confirmed.

Decision date: 10 July 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Melleuish v AAI Limited t/as GIO [2023] NSWPIC 323

Motor Accidents Compensation Act 1999; assessment of damages; liability admitted but denial by insurer of any loss or damage; claim was for psychiatric impairment only arising from claimant’s home being rendered uninhabitable after insured’s vehicle collided with her home; claimant and family were homeless for many months; claimant's employment terminated; claimant found further employment and qualifications and is now employed; agreed now suffering modest adjustment disorder after suffering loss of home, employment and disruption of family; issues of causation; Held – no entitlement to non-economic loss conceded; buffer for past loss of income over eight years; modest buffer for future due to vulnerability.

Decision date: 20 June 2023 | Member: Allan Cowley

Murray v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 332

Motor Accident Injuries Act 2017; 74-year-old male, passenger attempting to enter vehicle at a carpark and in doing so the vehicle rolled backwards causing the claimant to fall to the ground sustaining injury to left arm; sustained rotator cuff tear with impingement; subsequent continual pain and restriction of movement and weakness of the left arm; claimant is retired; surgery not recommended; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved; the proposed settlement is approved under section 6.23 (2)(b).

Decision date: 10 July 2023 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Rogers v State of New South Wales (Northern NSW Local Health District) & Ors [2023] NSWPIC 325

Workers Compensation Act 1987; application for lump sum death benefit and funeral expenses; whether deceased worker sustained a psychological injury pursuant to section 4(b)(ii); whether injury wholly or predominantly caused by reasonable action with respect to discipline pursuant to section 11A(1); whether death resulted from injury; Held – first respondent liable to pay compensation in respect of the death; orders for written submissions in respect of discretionary interest, dependants, apportionment and payment of compensation.

Decision date: 6 July 2023 | Member: Rachel Homan

Cheers v Mid Coast Council [2023] NSWPIC 326

Workplace Injury Management and Workers Compensation Act 1998; consideration of whether matter should be referred back to Medical Assessor (MA) where relevant documents were not included in the referral; consideration of the powers in section 329(1)(a) and 329(1A); Massie v Southern NSW Timber and Hardware Pty Limited considered; admission of late documents; Held – matter referred back to same MA for reconsideration pursuant to section 329(1A); late documents admitted pursuant to rule 67(4) of the Personal Injury Commission Rules 2021.

Decision date: 7 July 2023 | Member: Rachel Homan

Michaels v South West Care Services [2023] NSWPIC 327

Workers Compensation Act 1987; claim for future surgery; right shoulder injury accepted and proposed surgery reasonably necessary; left shoulder consequential condition said to be caused by overuse disputed by respondent; Held – the applicant does not need to establish the presence of pathology sufficient to establish a section 4 injury in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd discussed and followed; the evidence establishes the applicant suffered consequential condition to her left shoulder as a result of her right shoulder injury; the respondent’s Independent Medical Examination opinion that the applicant suffered a pre-existing connective tissue disorder is not borne out by the objective evidence and is rejected; the proposed left shoulder surgery is reasonably necessary as a result of the consequential condition; the respondent is to pay the costs of and incidental to the bilateral shoulder surgery proposed by the treating surgeon.

Decision date: 7 July 2023 | Member: Cameron Burge

Jeromin v Drake Australia Pty Ltd [2023] NSWPIC 328

Workers Compensation Act 1987; psychological injury under section 65A; claim for permanent impairment compensation for psychological injury; dispute as to primary or secondary psychological injury; Austin; Thazin-Aye v Workcover Authority (NSW); Stewart v NSW Police Service; State of New South Wales (NSW Department of Education) v Kaur; and Kooragang Cement Pty Ltd v Bates considered and applied; Held – the applicant sustained a primary psychological injury arising out of the motor vehicle accident in the course of her employment with the respondent on 25 January 2021.

Decision date: 7 July 2023 | Member: John Turner

Kim v C M Club Pty Ltd [2023] NSWPIC 330

Workers Compensation Act 1987; frank accident involving multiple body parts informing payment for whole person impairment pursuant to section 66; whether the applicant sustained an injury to his cervical spine in addition to accepted body parts; absence of contemporaneous records evidencing injury to cervical spine; Held –applicant was a witness of truth and absence of complaint could be contributed to language barriers and treatment for more serious, immediate injuries; the applicant could point to demonstrable physical change and injury was consistent with a fall of the type suffered by the applicant; award for applicant; to be remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess whole person impairment by reference to all body parts pleaded in application for review of decision.

Decision date: 7 July 2023 | Member: Christopher Wood

Elliot v DuPont Memcor (Australia) Pty Ltd [2023] NSWPIC 333

Claim for cost of proposed total knee replacement surgery; no issue applicant suffered injury by way of aggravation to underlying arthritic changes; only issue is whether the aggravation has made a material contribution to the accepted medical need for the proposed surgery; Held – the proposed left total knee replacement surgery is reasonably necessary as a result of the applicant’s injury; it has brought forward the need for the surgery; Federal Broom Co Pty Ltd v Semlitch and Murphy v Allity Management Services Pty Ltd applied; respondent to pay the costs of and incidental to the proposed surgery.

Decision date: 10 July 2023 | Member: Cameron Burge

Risteski v MKD Transcorp Pty Ltd [2023] NSWPIC 334

Permanent impairment compensation; accepted right shoulder injury as result of frank incident; accepted left shoulder consequential condition; whether applicant suffered injury or consequential condition to his cervical spine; whether applicant suffered consequential condition to left hip; Held –the applicant has not discharged the onus of proof in establishing he suffered injury to his cervical spine; either in the frank incident which caused his right shoulder injury and left shoulder consequential condition; additionally the applicant has failed to discharge the onus of proof in establishing the nature and conditions of his employment have caused an injury to his cervical spine; the applicant suffered a consequential condition to his cervical spine as a result of the prolonged wearing of a sling on his right shoulder after surgery; the applicant suffered a consequential condition to his left hip as a result of the right shoulder injury; when he was placed on his left side in order for the right shoulder surgery to be carried out; all claimed body systems are to be subject of referral for medical assessment.

Decision date: 11 July 2023 | Member: Cameron Burge

Corliss v State of New South Wales (NSW Police Force) [2023] NSWPIC 336

Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation; certain body systems to be referred for assessment by consent; others the subject of dispute pursuant to section 254 and 261; whether applicant precluded from obtaining compensation by virtue of the operation of the time limitation provisions in the above sections; Held – on 22 January 2018, the applicant lodged a formal P902 Incident Notification form in relation to her right knee injury suffered on 15 December 2017; the fact of the injury is not in issue; such notification satisfies the requirements of section 254(1); namely to give notice of an injury to an employer as soon as possible after the injury happened and before a worker has voluntarily left the employment the worker was in at the time of injury; similarly, the lodging of the P902 form satisfies the requirements of section 261(9); and as such the lodging of such a form suffices as the making of a claim; the application to amend the deemed date of injury with respect to the lumbar spine injury to the date of the letter of claim for permanent impairment compensation, namely 26 October 2021, is consistent with the established authority in Stone v Stannard Brothers Launch Services Pty Ltd; the application is therefore granted and the deemed date of injury brings the applicant’s claim for permanent impairment compensation within the relevant timeframes for making such a claim; both the right knee and lumbar spine claims are referred for medical assessment along with the other accepted body systems.

Decision date: 11 July 2023 | Member: Cameron Burge

Pirrello v F. F. Bowen & J. V. Bowen t/as Bowens Spray Painting Services [2023] NSWPIC 337

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s lumbar spine; whether requested spinal surgery is reasonably necessary to address the applicant’s injury; Held – the requested spinal surgery is reasonably necessary to address the applicant’s injury; respondent to pay the costs of and incidental to the requested surgery pursuant to section 60.

Decision date: 11 July 2023 | Member: Karen Garner

Sanders v Scalabrini Village Ltd [2023] NSWPIC 338

Workers Compensation Act 1987; claim for psychological injuries; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records; claim correspondence, documents lodged in previous proceedings before the Personal Injury Commission (Commission), as well as other factual material; consideration of whether the applicant is estopped by reason of the principle in Port of Melbourne Authority v Anshun Pty Limited from pursuing her claim before the Commission for a lump sum pursuant to section 66 in relation to her psychological injury, as the claim was allegedly not raised in the previous proceedings before the Commission; Geary v UPS Pty Limited, Secretary, Department of Communities and Justice v Miller & Anor (No 5), Woolstar Pty Limited v Wood, Fourmenina pub Pty Limited v Booth, Habib v Radio 2UE Sydney Pty Limited, Johnson v Gore Wood & Co, Thompson v George Weston Foods, Henderson v Henderson and Bruce v Grocon Limited considered; consideration of what is the deemed date of injury for the purpose of the applicant’s lump sum claim pursuant to section 66 if she is not estopped from pursuing that claim,Stone v Stannard Bros Launch Services Pty Limited, GIO Workers Compensation (NSW) Limited v GIO General Limited and Alto Ford Pty Limited v Antaw considered; Held – the applicant is not estopped from pursuing her claim before the Commission for a lump sum pursuant to section 66 in relation to her psychological injury; the deemed date of injury in relation to the applicant’s claim for a lump sum pursuant to section 66 in relation to her psychological injury is 10 June 2021; the determination of the applicant’s whole person impairment as a result of her injury will be remitted to the President of the Commission for referral to a Medical Assessor.

Decision date: 12 July 2023 | Member: Gaius Whiffen

Taylor v M L Ellston & R J Ellston [2023] NSWPIC 339

Workers Compensation Act 1987; section 60 expenses; whether laparoscopic sleeve gastrectomy surgery was reasonably necessary as a consequence of an accepted workplace injury; pre-existing obesity; causation; and whether there were different lower cost treatments available to the accident; absence of detail concerning alternative treatments and cost of same; applicant had battled to maintain weight loss before and after accepted workplace accident; consideration of common sense causation principles; Kooragang Cement Pty Limited v Bates considered Held – applying common sense causation principles and accepting as a witness of credit; the cost of surgery was reasonably necessary as a consequence of the accepted workplace accident; award for the applicant; the respondent is ordered to pay for the costs of surgery pursuant to section 60; Kooragang Cement Pty Limited v Bates, Casey v New South Wales Police Department; Briginshaw v Briginshaw [1938] HCA 34, Rose v Health Commission and Diab v NRMA Limited mentioned.

Decision date: 12 July 2023 | Member: Christopher Wood

Chrystal v State of New South Wales (NSW Police Force) [2023] NSWPIC 341

Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation;consideration of applicant’s and respondent’s witness statements, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the respondent can establish (pursuant to section 11A) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline or the provision of employment benefits; Department of Education and Training v Sinclair, Northern New South Wales Local Health Network v Heggie, Van Vliet v Landscape Enterprises Pty Ltd, Irwin v Director General of School Education, Federal Broom Co Pty Ltd v Semlitch, NSW Police Force v Gurnhill, Baker v Southern Metropolitan Cemeteries Trust, Patrech v State of New South Wales, Mitchell v Central West Health Service and Aitkin v Goodyear Tyre Company considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury pursuant to section 36, 37 and 40 prior to the Workers Compensation Amendment Act 2012 for an exempt worker; Held – the applicant contracted a ‘disease’ injury pursuant to section 4(b)(i) meeting the criteria for post-traumatic stress disorder and major depressive disorder as a result of cumulative exposure to traumatic incidents during the course of employment over 30 years in relation to which  employment with the respondent was a substantial contributing factor (section 9A); the injury deemed to have occurred on 10 October 2021; the respondent has failed to establish  that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; award for the applicant pursuant to sections 36, 37 and 40 from 11 February 2022 to date and continuing.

Decision date: 12 July 2023 | Member: Anne Gracie

Motor Accidents Medical Review Panel Decisions

QBE Insurance (Australia) Limited v Hoblos [2023] NSWPICMP 209

Motor Accident Injuries Act 2017; threshold injury dispute for psychological injury; claimant involved in four separate motor accidents over short period; prior psychological history; subject motor accident was a T-Bone collision at speed; held to be sufficiently serious to have threatened death or threatened serious injury to the claimant; discussion of common law and statutory principles of test of causation for psychological injury; rejection that principles in State Government Insurance Office v Oakley applied; Slade v Insurance Australia Ltd applied; reference to Motor Accidents Guidelines (Version 9.1, commenced on 1 April 2023) as to test for injury; Briggs v IAG Ltd (No 2) applied; observations by Windeyer J in Federal Broom Co Pty Ltd v Semlitch referred to; discussion of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for determining post-traumatic stress disorder; each criterion under DSM-5 must be caused by the motor accident; Held –claimant suffered post-traumatic stress disorder caused by motor accident; original assessment confirmed.

Decision date: 7 June 2023| Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Atsumi Fukui | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Vekic [2023] NSWPICMP 296

Motor Accident Injuries Act 2017; medical assessment of whole person impairment by Medical Assessor (MA) Berry and insurer’s review under section 7.26; claimant alleged injuries to cervical, thoracic and lumbar spine, right and left shoulder, right and left wrist, right and left knee; accident occurred on 20 January 2018, head-on collision with turning vehicle and airbags deployed; Held – Panel satisfied that the claimant sustained an injury to her neck and that impairment was 0%; Panel not satisfied the claimant had any existing impairment to her thoracic spine; Panel satisfied claimant injured her lower back and impairment assessed at 0%; both shoulders examined and claimant’s range of motion was inconsistent, therefore Panel did not accept range of motion method was appropriate; shoulders assessed at 3% upper extremity impairment (UEI) each; wrists examined and showed minor impairment assessed at 2% whole person impairment (WPI) each; total UEI of 5% for each limb converting to 3% WPI each; WPI not greater than 10% and certificate of MA revoked; no issue of principle.

Decision date: 23 June 2023| Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb

AAI Limited t/as GIO v Stojanov (No 1 and No 2) [2023] NSWPICMP 307

Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury (1) and treatment (2); insurer’s review of Medical Assessor (MA) Bodel’s decision under section 7.26; claimant injured as the driver of a car which collided with the opened or opening door of a parked car; claimant alleged physical injuries to knee, lower back and neck; claimant had radiology a year after the accident which revealed left knee medial meniscus tear; issue of causation; claimant had seen GP and been referred for physiotherapy three days before the car accident for knee and delayed report to pre-accident GP of accident and injury; Held – claimant’s evidence unreliable; claimant’s treating specialist and current GP had no history of previous symptoms therefore their evidence of little weight; Panel found no evidence of radiculopathy at any time since the accident in neck or back and no sign of any complete or partial rupture of tendons, ligaments, menisci etc in the neck or back; Panel not satisfied left knee medical meniscus tear was caused by the accident; all injuries threshold injuries; in (1) Medical Assessment Certificate (MAC) of MA revoked; in (2) MAC in relation to arthroscopic left knee surgery revoked; Panel noted that while section 3.28(3) had been revoked with saving provisions for accidents occurring before 1 April 2023, Schedule 2(2)(c) had been repealed with no saving provisions; Panel had no power to consider that certificate.

Decision date: 30 June 2023 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon and Dr Margaret Gibson | Injury module: Spine and Lower Limb; Treatment Type: Surgery

Adams v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 309

Motor Accident Injuries Act 2017; medical dispute about permanent impairment; assessment review under section 7.26; original Medical Assessor Rosenthal assessed 10% permanent impairment; no pre-existing injuries; re-examined; Held – claimant sustained soft tissue injuries to right elbow, lumbar spine, left wrist; whole person impairment (WPI) greater than 10%; previous impairment certificate revoked.

Decision date: 30 June 2023 | Panel Members: Member Terence O'Riain, Dr Drew Dixon and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Kotb v AAI Limited t/as GIO [2023] NSWPICMP 310

Motor Accident Injuries Act 2017; the claimant suffered injury on 10 October 2020 in a rear-end collision; the dispute related to the assessment of threshold injury and treatment and care; claimant re-examined; original review submissions limited to threshold dispute; claimant argued that all matters reviewed; no contrary response from insurer; review is of medical assessment (section 7.26(1)) and a new assessment of all matters (section 7.26(6)); Meeuwissen v Boden referred to; Panel reviewed all medical assessment disputes; significant pre-existing history of right knee, right shoulder and lumbar spine pain; no plausible medical explanation why motor accident caused or aggravated right knee condition; subsequent falls causing further injuries to arms due to right knee instability not caused by motor accident; deterioration of shoulder pathology from 2012 to 2021 explicable by normal ageing process associated with significant pathology and inflammatory arthritis; findings made that claimant suffered threshold injuries; findings made on treatment disputes noting distinction between “reasonable and necessary” and causation; Held – assessment of threshold injury confirmed; treatment and care certificates revoked.

Decision date: 30 June 2023 | Panel Members: Principal Member John Harris, Dr Michael Couch and Dr Neil Berry | Injury module: Spine, Upper and Lower Limb; Treatment Type: Radiological Investigations, Domestic Assistance, Equipment and Medical Specialist Consultation

Insurance Australia Limited t/as NRMA Insurance v Sayef [2023] NSWPICMP 311

Motor Accidents Injuries Act 2017; Personal Injury Commission Act 2020 and Personal Injury Commission Rules 2021; permanent impairment dispute in a motor accident on 10 April 2019; the insurer applied for a review of Medical Assessor (MA) Herald’s certificate dated 2 December 2021 finding the claimant’s permanent impairment was 13%; the claimant complained that the accident caused right and left shoulder, hip and spinal injuries; Panel re-examined claimant; Held – the Panel was satisfied that the accident caused all the referred injuries; using the Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd principle, the Panel assessed the claimant’s permanent impairment at 4% being for bilateral shoulder impairment referred from the cervical spine; all other referred injuries were assessed as 0%; MA certificate revoked.

Decision date: 3 July 2023 | Panel Members: Member Terence O'Riain, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Kotb v AAI Limited t/as GIO [2023] NSWPICMP 312

Motor Accident Injuries Act 2017; the claimant suffered injury on 10 October 2020 in a rear-end collision; the dispute related to the assessment of threshold injury and treatment and care; claimant re-examined; significant pre-existing history of cervical lumbar spine pain; findings made that claimant suffered threshold injuries; findings made on treatment disputes on “reasonable and necessary”; discussion of the Motor Accident Injuries Amendment Act 2022; repeal of clause 2(c) of Schedule 2 without associated saving provision; no power of review panel to determine dispute pertaining to “recovery”; Held –assessment of threshold injury confirmed; treatment and care certificate revoked.

Decision date: 4 July 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry and Dr Michael Couch | Injury module: Spine and Lower Limb; Treatment Type: Radiological Investigations, Physiotherapy Treatment, Equipment and Medical Specialist Consultation

Mansour v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 313

Motor Accident Injuries Act 2017; the claimant suffered injury on 7 May 2019 in a T-Bone collision; the dispute related to the assessment of permanent impairment; claimant re-examined; pre-existing history of right shoulder, cervical and lumbar spine pain; contemporaneous complaints of pain in same body parts following motor accident; claimant’s restriction of right shoulder movement was inconsistent during examination and unreliable; assessment made by analogy at 2%; examination of cervical spine did not show radiculopathy as they were not in a dermatomal distribution; cervical and lumbar spine showed no signs consistent with an assessment of diagnosis related estimates (DRE) Category II; Held – original assessment confirmed.

Decision date: 5 July 2023 | Panel Members: Principal Member John Harris, Dr John O’Neill and Dr Margaret Gibson | Injury module: Upper Limb, Nervous System (Neurological) and Spine; Treatment Type: Medical Specialist Consultation

Huo v QBE Insurance (Australia) Limited [2023] NSWPICMP 314

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 22 November 2021; assessment of threshold injury; dispute as to causation of compression fracture of lumbar spine; Medical Assessor Truskett found the L4 superior endplate compression fracture was pre-existing; certified all injuries as threshold injuries; Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities, Panel satisfied accident caused L4 superior endplate compression fracture; injury to cervical spine, right shoulder, right arm and hand, right leg, right hip, right knee and right foot all threshold injuries; L4 superior endplate compression fracture is a non-threshold injury.

Decision date: 5 July 2023 | Panel Members: Member Susan McTegg, Dr Ian Cameron and Dr Peter Yu | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Samaan v Blacktown City Council [2023] NSWPICMP 315

Workplace Injury Management and Workers Compensation Act 1998; claim for hearing loss; whether subsequent hearing deterioration either subject to section 323 deduction or causally connected to subject injury; Held – section 323 does not apply to subsequent injuries; relevantly the further loss of hearing; and error therefore established; however, applying Secretary NSW Department of Education v Johnson, the subject noisy employment of 1996 was unrelated to the subsequent near total loss of hearing over the following years; Medical Assessment Certificate confirmed.

Decision date: 7 July 2023 | Panel Members: Member John Wynyard, Dr Brian Williams and Dr Joseph Scoppa | Body system: Hearing

Priest v Secretary, Department of Communities and Justice [2023] NSWPICMP 317

The appellant suffered an accepted right knee injury on 19 March 2019 and an accepted consequential left knee condition; total knee replacements undertaken to both knees; Medical Assessor (MA) assessed right knee as a poor result and left knee as a fair result; impairment assessed under Table 3.3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (Guidelines) and 1/10^th deducted for pre-existing condition; ground of appeal limited to whether impairment of total knee replacement should be based on impairments set out in Table 17.33 of American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5); delegated legislation; principles of statutory interpretation apply; King Gee Clothing Co Pty Ltd v The Commonwealth; question of construction determined by text, context and purpose; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue applied; table 3.3 of Guidelines applied only to total ankle replacements; contextual references in surrounding provisions of Guidelines refer to ongoing application of Table 17-33 of AMA5; purpose of Table 3.3 was to provide for an assessment of total ankle replacement which was not provided by Table 17-33; MA should have assessed under Table 17-33 of AMA5; Held –Assessment revoked; total knee replacements re-assessed under Table 17-33.

Decision date: 10 July 2023 | Panel Members: Principal Member John Harris, Dr Roger Pillemer and Dr David Crocker | Body system: Right and Left Lower Extremity

Sayer v MJ Protective Services Group Pty Ltd [2023] NSWPICMP 318

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s (MA) ratings of appellant worker’s impairment in several of the psychiatric impairment rating scale (PIRS) categories were wrong; whether MA erred by making a deduction under section 323(1); Held – MA’s ratings accorded with the evidence before him and were open to him to make; Appeal Panel found MA was correct to make deduction under section 323(1) for the proportion of the appellant’s impairment that was due to a pre-existing condition; Medical Assessment Certificate confirmed.

Decision date: 12 July 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

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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