Legal Bulletin No. 104

Issued 31 March 2023

Welcome to the hundred and 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.

Supreme Court Decision

Mills v Martin-Brower Australia Pty Ltd [2023] NSWSC 253

Administrative law; bias rule; alleged apprehended bias; whether member who sat on Workers Compensation Commission could also be member of Appeal Panel to assess degree of permanent impairment; Workers compensation; medical assessment; application of Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; whether error shown in application of Guidelines; Held –dismiss the amended summons filed on 1 November 2022; order the plaintiff to pay the first defendant’s costs of the proceedings.

Decision date: 23 March 2023 | Before: Adamson JA

Presidential Member Decisions

Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 (Clifford No 4)

Workers compensation; heart attack injury; whether injury sustained in accordance with section 4 of the Workers Compensation Act 1987 (1987 Act); whether employment is a substantial contributing factor to the injury; section 9A of the 1987 Act; consideration of the test in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd; decision makers not confined to the statutory matters at section 9A(2) of the 1987 Act; epidemiological studies; Seltsam Pty Ltd v McGuiness referred to; approach to expert evidence; Hancock v East Coast Timber Products Pty Limited applied and considered; alleged error in failure to reply to a clearly articulated argument not established; Dranichnikov v Minister for Immigration and Multicultural Affairs; Wang v State of NSW applied and considered; Held – the third appellant’s time to appeal the Member’s decision of 6 May 2022 is extended to 8 June 2022; the Member’s Certificate of Determination dated 6 May 2022 is confirmed.

Decision date: 22 March 2023 | Before: President Judge Phillips

Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services [2023] NSWPICPD 13

Workers compensation; whether the appellant was a “worker” within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (Number 3) discussed; application of the relevant principles where the contract is oral; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; ZG Operations Australia Pty Ltd v Jamsek discussed; JMC Pty Limited v Commissioner of Taxation, Secretary and Attorney General’s Department v O’Dwyer applied; section 352(5) of the 1998 Act; requirement to show error; Workers Compensation Nominal Insurer v Al Othmani applied; drawing of inferences; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher applied; Held – the Member’s Certificate of Determination dated 6 May 2022 is confirmed.

Decision date: 22 March 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Aranui v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 105

Motor Accident Injuries Act 2017; claim for damages; the claimant was riding a motor bike when he alleged the insured vehicle suddenly and without warning changed lanes into the lane in which the claimant was travelling and stopped, resulting in the claimant colliding with the left hand corner of the insured vehicle; insurer alleged contributory negligence of 25% on the basis the insured vehicle had moved into lane 2 and was stationary when the claimant failed to stop and collided with her car; the claimant sustained a compound fracture/dislocation of the right foot; no dispute as to injury; medical experts agreed claimant unfit for pre-injury employment as a scaffolder or any work requiring prolonged walking or standing, climbing ladders, negotiating stairs or negotiating slopes or uneven surfaces; Held – claimant honest witness; the insured driver suddenly swerved into the middle lane without keeping a proper lookout for vehicle travelling in that lane, in this case the claimant’s bike; no departure from the standard of care of the reasonable person; no finding of contributory negligence;  past economic loss assessed on basis all absences from work causally related to the accident; future loss of earnings assessed on basis of $125 per week for one year, with no discounts for vicissitudes, on basis claimant unlikely to maintain current employment as a scaffolder and thereafter at $750 net per week until age 67 years; total damages assessed in sum of $834,501; costs assessed in favour of the claimant.

Decision date: 14 March 2023 | Member: Susan McTegg

Graydon v AAI Limited t/as GIO [2023] NSWPIC 110

Motor Accident Injuries Act 2017; assessment of damages; contributory negligence in issue; non-economic loss of $400,000 agreed; past economic losses agreed; future economic loss; most likely future circumstances but for the accident; catastrophic injuries; amputation of right leg above knee; Held – no contributory negligence; damages assessed according to sub-sections 7.36(3)-(4).

Decision date: 16 March 2023 | Member: Shana Radnan

Bridgefoot v Allianz Australia Insurance Limited (Nos 1 and 2) [2023] NSWPIC 111

Motor Accident Injuries Act 2017; insurer’s application for damages assessment proceedings to be dismissed on the grounds that the claimant had not used her best endeavours to settle the claims before referring them to the Personal Injury Commission (Commission) for assessment, as required by section 7.32(3); where insurer denied both claims on the basis that the claimant’s only injuries resulting from each accident were minor injuries; where the claimant had lodged applications for assessment of minor injury disputes, served evidence in support of her claims and provided particulars; Mammone v Insurance Australia Limited t/as NRMA and Golding v NRMA applied; Held – prior to referring her damages claims to the Commission for assessment, the claimant had taken steps that a prudent, determined and reasonable person acting in her own interests and desiring to achieve a settlement of each claim would take; the steps she had taken were endeavours undertaken by the claimant to resolve her claims; because she had undertaken those endeavours, the claimant had used her best endeavours to settle each claim before referring it to the Commission for assessment, as required by section 7.32(3).

Decision date: 17 March 2023 | Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Klement v Bull "N" Bush Nurseries Pty Ltd [2023] NSWPIC 101

Workplace Injury Management and Workers Compensation Act 1998; application to appeal from decision of Medical Assessor (MA); whether a Medical Assessment Certificate could include an assessment of a body system which no Independent Medical Examiner (IME) assessed as having a rateable impairment in circumstances where the referral was for “left upper extremity” as a whole notwithstanding respondent placing left shoulder injury in issue; the applicant’s IME did not assess any impairment for the shoulder, nor did the respondent’s; the matter was referred to a MA who, as part of assessing the left upper extremity as a whole, assessed a rateable impairment to the left shoulder; Held – where a body system has been assessed by the applicant’s own IME as having a 0% impairment, that body system is not the subject of a “medical dispute” as that term is defined in sections 321 and 322(2); Skates v Hills Industries Limited followed; matter remitted to the President of the Personal Injury Commission for referral back to the MA to carry out an assessment without including any assessment of the left shoulder.

Decision date: 13 March 2023 | Member: Cameron Burge

Singh v ADFA Jamison Pty Ltd [2023] NSWPIC 102

Claim for permanent impairment compensation; injuries to left upper extremity and scarring not in issue; applicant claims consequential condition to cervical spine; respondent alleges neck symptoms caused by degenerative changes or pain syndrome; Held – on a common-sense evaluation of the lay and expert evidence, the applicant’s cervical spine condition was as a result of the accepted left upper extremity injury; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor to determine permanent impairment arising from the injuries and consequential conditions to the left upper extremity (elbow and shoulder) and cervical spine, together with scarring (TEMSKI).

Decision date: 13 March 2023 | Member: Cameron Burge

Vae v Blue Star Painting [2023] NSWPIC 103

Claim for permanent impairment compensation; injuries to right elbow and left shoulder admitted; injury to left elbow in dispute; Held – the applicant has the onus of proving he suffered injury as alleged; in this matter, despite being taken to hospital following the injury at issue, there is no record of any complaint of left elbow symptoms or injury to either the hospital, the applicant’s general practitioner or any treating medical expert; the only evidence of left elbow injury is the applicant’s statement and the report of his Independent Medical Examiner (IME) Dr Bodel; the respondent’s IME Dr Muratore took an unchallenged history from the applicant that he did not suffer left elbow symptoms form the fall at issue, and instead attributed his problems to that body system to the ageing process; notwithstanding the usual caution to be taken regarding histories to treating practitioners, the preponderance of the medical evidence in this matter does not support a finding of injury to the left elbow; award for the respondent on the claim for left elbow injury; balance of the matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the applicant’s permanent impairment to the left shoulder and right elbow.

Decision date: 14 March 2023 | Member: Cameron Burge

Spiteri v State Transit Authority [2023] NSWPIC 104

Workers Compensation Act 1987; section 4(b)(i)-(ii); injury to the right thumb disputed; proposed surgery to the right thumb disputed; Kooragang Cement Pty Ltd v Bates, Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, AV v AW,  Ariton Mitic v Rail Corporation of NSW, Perry v Tanine Pty Ltd t/as Ermington Hotel and Federal Broom Co Pty Ltd v Semlitch considered and applied; Held –the applicant contracted or in the alternative suffered aggravation, acceleration, exacerbation or deterioration of a disease process in the right thumb within the meaning of section 4(b)(i) or 4(b)(ii)arising out of or in the course of his employment with the respondent, deemed to have occurred on 20 June 2020; the right thumb trigger release surgery proposed by Dr David Bradshaw reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 20 June 2020 within the meaning of section 60.

Decision date: 14 March 2023 | Member: John Turner

Pallone v Woolworths Group Limited [2023] NSWPIC 107

Claim for lump sum compensation for accepted injuries to the lumbar spine and scarring; claim for injury or consequential condition to the cervical spine denied; whether applicant claimed  that she injured her neck in the subject incident; whether medico-legal advice confused; whether lack of corroboration by treating surgeon as to applicant’s complaints of neck pain on awakening from surgery relevant; whether there was a lack of corroboration by hospital nursing staff in the clinical notes for that claim; whether clinical notes of the relevant medical centre relevant in causation argument; Held – applicant’s statement to medico-legal specialist without contemporaneous support and initially speculative and in second statement reconstructed and unreliable as to whether she injured her cervical spine in the subject injury of 10 March 2018, both statements having been made in 2022; observations about effect of legal assistance in preparation of statements; medico-legal opinion accepted that no injury as the evidence did not support question of contributing factor; also accepted as to cause of cervical symptoms being applicant’s positioning during back surgery; claim that applicant’s statement regarding her complaints to hospital staff and the treating surgeon not reliable rejected; Qannadian v Bartter Enterprises considered and applied on analysis of evidence; claim that subsequent complaints not contemporaneous rejected; award for the applicant in respect of cervical spine consequential condition.

Decision date: 15 March 2023 | Member: John Wynyard

Prasad v Compass Group B & I Hospitality Services Pty Ltd [2023] NSWPIC 108

Claim for medical expenses; whether applicant suffered a consequential condition by way of excessive weight gain as a result of, and if so, whether gastric sleeve surgery is reasonably necessary as a result of that consequential condition; injuries to neck and shoulder accepted; applicant previously very active and health conscious; applicant’s preinjury weight of 94 kg grew to 116 kg; Held – the applicant suffered a consequential condition by way of weight gain as a result of the accepted injuries; Sidiropoulos v Able Placements Pty Ltd and Kooragang Cement Pty Ltd v Bates followed; the gastric sleeve surgery the subject of the proceedings was reasonably necessary as a result of the consequential condition; Diab v NRMA Limited followed; respondent to pay the costs of and incidental to the gastric sleeve surgery; by consent, the respondent is to pay the applicant’s unpaid physiotherapy as pleaded in the sum of $510.

Decision date: 16 March 2023 | Member: Cameron Burge

Bullen v Secretary Department of Planning and Environment [2023] NSWPIC 109

Claim for lump sum compensation; worker suffered an initial injury to the right knee, a consequential condition involving the left knee had been accepted by the respondent; the only remaining issue was whether an incident involving an injury to the left elbow following a fall was also a consequential condition; Held –that a full review of the contemporaneous records and doctors reports established on the balance of probabilities that the injury to the left elbow was a consequential condition of the right knee injury; Makita (Australia) Pty Ltd v Sprowles applied in rejecting the opinion of qualified doctor.

Decision date: 16 March 2023 | Member: Michael Moore

Lashbrook v Corestaff NSW Pty Ltd [2023] NSWPIC 112

Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted injury to his eyes, right hip and post-traumatic stress disorder; whether the applicant sustained injury to his cervical spine, lumbar spine and right shoulder pursuant to sections 4(a) and 9A; Held – applicant sustained injury to his cervical spine, lumbar spine and right shoulder arising out of his employment pursuant to sections 4(a) and 9A; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of permanent impairment.

Decision date: 17 March 2023 | Member: Karen Garner

White v Secretary, Department of Education [2023] NSWPIC 113

Workers Compensation Act 1987; the applicant claims weekly compensation and medical treatment expenses payable the for primary psychological injury sustained arising out of or in the course of her employment with the respondent; the respondent disputes the applicant’s claim; the respondent disputes the applicant has sustained primary psychological injury arising out of or in the course of her employment with the respondent and also disputes the applicant has suffered an incapacity for work resulting from injury as alleged; in the alternative, the respondent essentially disputes the applicant has an entitlement to compensation payable as her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal; Held – the applicant sustained primary psychological injury arising out of or in the course of her employment with the respondent, with her employment with the respondent being the main contributing factor to injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal; the applicant has entitlement to weekly compensation payable under section 36(1) and the applicant has an entitlement to medical and related treatment payable under section 60.

Decision date: 17 March 2023 | Member: Jacqueline Snell

FIS Systems Pty Ltd v Fieldmartin & Ors [2023] NSWPIC 114

Death claim issue as to whether any of the persons making a claim are dependants; Held – the deceased worker died from injuries sustained in the course of his employment with the applicant; the compensation payable by the applicant in accordance with section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) on the death of the deceased worker is $834,200; pursuant to section 25 of the 1987 Act and section 4 of the Workplace Injury Management and Workers Compensation Act 1998 the third to tenth respondents are not entitled to compensation as they are not dependants of the deceased worker; pursuant to sections 25(1)(a) and 32 of the 1987 Act the deceased worker has left no dependants, accordingly the compensation payable of $834,200 is to be paid by the applicant to the legal personal representatives of deceased.

Decision date: 20 March 2023 | Principal Member: Josephine Bamber

Pena v Almec Pty Ltd [2023] NSWPIC 115

Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted head injury; whether the applicant sustained injury to his neck pursuant to sections 4(a), 9A and 4(b)(ii); Held – applicant did not sustain injury to his cervical spine arising out of his employment pursuant to section 4(a) and 9A; applicant sustained injury to his cervical spine arising out of his employment pursuant to section 4(b)(ii); matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine.

Decision date: 20 March 2023 | Member: Karen Garner

Habra v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 116

Alleged back injury as a result of work on a fruit farm; dispute as to the nature of the work; credit; New South Wales Police Force v Winter and Donovan v Secretary, Department of Education and Communities referred to; main contributing factor; AV v AW discussed; assessment of medical evidence; Paric v John Holland (Constructions) Pty Ltd considered; Held – award for the respondents.

Decision date: 20 March 2023 | Member: Catherine McDonald

Sek v Bell River Homes Pty Ltd [2023] NSWPIC 117

Injury to right shoulder; no dispute as to injury; applicant was sub-contractor; whether applicant was deemed worker at the time of injury; applicant and respondent had written agreement; no dispute that applicant was party to a contract with the respondent to perform work; no dispute that the work exceeded $10 in value; no dispute that the applicant neither sublet the contract nor employed others; issue whether the work the applicant carried on for the respondent was incidental to a trade or business regularly carried on by him under his own name or the name of his business; Held –the work the applicant carried on for the respondent was not incidental to a trade or business regularly carried on by him under his own name or the name of his business; finding that the applicant was a deemed worker; respondent to pay the applicant weekly payments at the agreed rate; applicant entitled to reasonably necessary medical expenses as a result of his injury.

Decision date: 21 March 2023 | Member: Jill Toohey

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited v Maggiotto [2023] NSWPICMP 84

Motor Accident Injuries Act 2017 ; review of decision of Medical Assessor Harrington dated 11 April 2022; claimant involved in car versus motorbike accident on 19 April 2018; claimant suffered compound fracture of the right forearm, fractured jaw and four broken teeth, deep laceration to chin requiring stitches, laceration and bruising to left testicle, reasoning and abrasions to left inner thigh and testicles, bruising to rib cage around chest, clicking pelvis area, injury to his lumbar spine; claimant nearly 20 years old at time of accident; seven months post-accident, claimant developed deep vein thrombosis of left leg and urinary incontinence; Review Panel satisfied that as a result of the collision due to the claimant riding a motorbike that he could have suffered the injuries claimed; the Review Panel was not satisfied that the deep vein thrombosis and urinary incontinence diagnosed seven months post-accident was causally related to the accident as there was no evidence to this effect; Held – whole person impairment assessed at 13% with diagnosis related estimate (DRE) Category II assessment of lumbar spine at 5% and 4% for the wrist and 4% for facial and wrist scarring.

Decision date: 7 March 2023 | Panel Members: Member Alexander Bolton, Dr Drew Dixon and Dr Shane Moloney | Injury module: Spine and Upper Limb

El Mohamed v AAI Limited t/as GIO [2023] NSWPICMP 85

Motor Accident Injuries Act 2017; assessment of minor injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 14 September 2019; Medical Assessor certified acute stress disorder; a minor injury; Held – diagnostic criteria for post-traumatic stress disorder met; claimant suffered non minor injury.

Decision date: 7 March 2023 | Panel Members: Member Susan McTegg, Dr Atsumi Fukui and Dr Michael Li Ying Hong | Injury module: Mental and Behavioural

Gad v Allianz Australia Insurance Limited [2023] NSWPICMP 86

Motor Accident Injuries Act 2017; claimant was a driver in a head-on collision 40 km/h; injuries reported to head, knee, right shoulder, cervical and lumbar spine; Held – original Medical Assessment Certificate set aside; Review Panel issued a new Certificate; claimant’s  injuries caused by the motor accident and gave rise to a permanent impairment which is not greater than 10%; soft tissue injury to the knee, cervical and spine; injury to the head and right shoulder not caused or aggravated by the motor accident and did not give rise to a permanent impairment.

Decision date: 9 March 2023 | Panel Members: Member Ray Plibersek, Dr Tai-Tak Wan and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb and Brain Injury

Allianz Australia Insurance Limited v Turner [2023] NSWPICMP 92

Motor Accidents Injuries Act 2017; medical disputes about minor injury and review of the Medical Assessor’s assessment under section 7.26 (psychological injury); claimant was run off the road on Sturt Highway near Hay in Outback NSW; suffered soft tissue injuries which he sought treatment for; claimant developed post-traumatic stress disorder (PTSD) symptoms but did not request treatment as he was unaware that he could receive treatment via Zoom; focussed on recovering from physical injuries; dispute about claimant’s descriptions of the accident, whether claimant satisfied the criteria for PTSD and whether injuries were minor or non-minor; insurer’s submissions about inconsistency including absence of reference to mental health symptoms in the General Practitioner’s (GP) file; claimant swerved to avoid head on collision; accident described was objectively sufficient to be classed as a Criterion A stressor; claimant stoic with respect to mental health symptoms because the physical symptoms directly impacted his work; lack of reference to psychiatric symptoms to GP was not considered to represent a sufficient factor to influence the Panel’s conclusions; Held – claimant satisfied criteria for PTSD, injuries non-minor; no matter of principle.

Decision date: 15 March 2023 | Panel Members: Member Terence O’Riain, Dr Samson Roberts and Dr Michael Li Ying Hong | Injury module: Mental and Behavioural

Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93

Motor Accident Injuries Act 2017; assessment of minor injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 25 February 2021; Medical Assessor Gorman found the following injuries were minor injuries: cervical spine, soft tissue injury to the neck; lumbar spine, soft tissue injury to the lower back; left shoulder, soft tissue injury; right elbow, soft tissue injury; right arm, scarring; left knee, soft tissue injury; left leg, soft tissue injury; face, soft tissue injury to the chin; right shoulder, soft tissue injury; right leg, soft tissue injury, and right arm, soft tissue injury; Held –Medical Assessment Certificate affirmed; scarring to the right wrist and right elbow minor injuries; simplistic to say skin is an organ and any injury to the skin, no matter how minor would be excluded from definition of minor injury; skin is made up of three layers of tissue which connects, supports or surrounds other structures or organs of the body; injury to the skin is an injury to connective tissue which connects, supports and surrounds other structures; injury to the skin is a minor injury unless the injury to the skin also involves an injury to nerves (which would be evidenced by sensory loss), or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

Decision date: 16 March 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb and Minor Skin

Insurance Australia Limited t/as NRMA Insurance v Jamhour [2023] NSWPICMP 94

Motor Accident Injuries Act 2017; the claimant suffered injury on 1 July 2019 when she was struck by the insured whilst crossing a road; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel satisfied that claimant suffered from moderate collateral laxity; other body parts rated no assessable impairment; Panel found that left shoulder condition not caused by accident due to accepted delay in onset of symptoms and adhesive capsulitis likely due to diabetes; Held – claimant assessed at 7% permanent impairment; original Medical Assessment Certificate revoked.

Decision date: 16 March 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99

Motor Accident Injuries Act 2017; the claimant suffered injury whilst riding a scooter whit hit by the insured; the claimant suffered soft tissue injuries and multiple abrasions with residual scarring; the dispute related to whether the injury was a minor injury; claimant re-examined; discussion of interpretation of minor injury with reference to skin injury; Nazari v AAI Ltd not followed as the words of the section cannot be construed solely by reference to purpose; The Queen v A2 applied; Al- Khafaji v Insurance Australia Ltd not followed as the fact that skin is an organ does not answer that part of the definition concerning whether the soft tissue injury surrounds structures; discussion of structures; a skin injury satisfies the definition of a soft tissue injury and is encompassed within the concept of a minor injury subject to whether there is an injury to a nerve which would then take the injury outside the definition; Held – claimant did not suffer an injury to a nerve from the various skin injuries; original Medical Assessment Certificate confirmed.

Decision date: 20 March 2023 | Panel Members: Principal Member John Harris, Dr Ian Cameron and Dr Geoffrey Curtin | Injury module: Spine, Upper and Lower Limb and Minor Skin

Workers Compensation Medical Appeal Panel Decisions

Wilson v Woolworths Limited [2023] NSWPICMP 87

Appeal from assessment of 9% whole person impairment (psychological); whether Medical Assessor (MA) erred in assessing a class 2 impairment in respect of social and recreational activities; whether MA erred in assessing a class 2 impairment in respect of concentration, persistence and pace; whether MA erred in assessing a class 3 impairment in respect of employability; Held – Medical Assessment Certificate revoked; new Certificate issued.

Decision date: 13 March 2023 | Panel Members: Richard Perrignon, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Mitchell v IOOF Service Co Pty Ltd [2023] NSWPICMP 88

Psychological injury; assessment under Psychiatric Injury Rating Scale (PIRS); worker alleged that the Medical Assessor made incorrect assessments of social and recreational activities and social functioning, relying on the same examples under both tables and aspect of self-care and personal hygiene; Ballas v Department of Education, Jenkins v Ambulance Service of NSW and Ferguson v State of New South Wales discussed; assessment of concentration, persistence and pace based on observations during examination and history provided; Held – Medical Assessment Certificate confirmed.

Decision date: 13 March 2023 | Panel Members: Catherine McDonald, Dr Graham Blom and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Al Inezi v Formtrade Pty Ltd [2023] NSWPICMP 89

Assessment of cervical spine, left upper extremity, left lower extremity and lumbar spine; Medical Assessor erred in that he did not explain the rationale for deduction for left shoulder impairment by virtue of range of movement in right shoulder; re-examination; Held – Medical Assessment Certificate revoked.

Decision date: 13 March 2023 | Panel Members: Carolyn Rimmer, Dr Gregory McGroder and Dr John Brian Stephenson | Body system: Cervical and Lumbar Spine, Left Upper and Lower Extremity

Secretary, Department of Education v Pillay [2023] NSWPICMP 90

Impairment resulting from psychiatric injury; fresh evidence admitted as not available before assessment and because it had such probative value it was reasonably clear it would change the outcome of the case; appellant alleged error in the assessment in two of the categories under the psychiatric impairment rating scale (PIRS), concentration, persistence and pace and employability; Held –Medical Assessment Certificate revoked.

Decision date: 15 March 2023 | Panel Members: Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

V.L. Boardman Pty Limited t/as Eyecare Plus v Anderson [2023] NSWPICMP 91

Both parties appealed; the appellant employer submitted that the Medical Assessor (MA) erred in the deduction he made with respect to the right knee, and erred in the manner of his assessment of the lumbar spine; the worker submitted that no errors were made with respect to the right knee or lumbar spine, but that the MA erred with respect to his assessment of the right upper extremity (thumb); Panel found some errors with respect to the manner in which the MA made his assessments, but those errors were corrected and there was no change to the MA’s assessments appealed by the employer; Held – the Panel found the MA erred with respect to his assessment of the right thumb; Medical Assessment Certificate revoked.

Decision date: 15 March 2023 | Panel Members: Deborah Moore, Dr James Bodel and Dr Mark Burns | Body system: Lumbar Spine, Right Upper and Lower Extremity

Qantas Airways Limited v Southwell [2023] NSWPICMP 95

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding respondent had persisting symptoms and radiculopathy; whether MA erred by not making section 323 deduction for previous injury or pre-existing condition or abnormality; whether MA required to explain why his opinion differs from other Independent Medical Examiners’ opinions; Appeal Panel found MA erred by not making section 323 deduction; Medical Assessment Certificate revoked.

Decision date: 16 March 2023 | Panel Members: Marshal Douglas, Dr Tommasino Mastroianni and Dr John Brian Stephenson | Body system: Lumbar Spine and Scarring

Veolia Environmental Services (Australia) Pty Ltd v Ellul [2023] NSWPICMP 96

Whether Medical Assessor (MA) failed to consider all relevant material; whether MA failed to obtain correct history; whether MA sufficiently explained his reasons; Held – Medical Assessment Certificate confirmed.

Decision date: 16 March 2023 | Panel Members: Marshal Douglas, Dr Neil Berry and Dr Margaret Gibson | Body system: Right and Left Upper Extremity

Jara v Supported Accommodation & Homelessness Services Shoalhaven Illawarra [2023] NSWPICMP 97

Psychological Injury; appellant alleged error in the assessment by the Medical Assessor (MA) that Maximum Medical Improvement (MMI) had not been reached; Appeal Panel did not find error; the assessment that MMI had not been reached was open to the MA and was adequately reasoned; Held – Medical Assessment Certificate confirmed.

Decision date: 16 March 2023 | Panel Members: Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Coca-Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd) v Pombinho [2023] NSWPICMP 98

Impairment resulting from psychiatric injury; appellant alleged error as Medical Assessor (MA) failed to consider any secondary psychiatric injury from concurrent physical injuries; MA failed to consider the General Practitioner’s clinical notes; MA failed to consider impact of physical injuries and covid pandemic on assessment of Psychiatric Impairment Rating Scale (PIRS) categories; MA failed to make a deduction for a pre-existing injury; Panel satisfied that MA did not consider whether worker had a secondary psychiatric injury; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 20 March 2023 | Panel Members: Carolyn Rimmer, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Secretary Department of Communities and Justice v Taane (nee Ashton) [2023] NSWPICMP 100

Workplace Injury Management and Workers Compensation Act 1998; appeal by employer pursuant to section 323(3)(c)-(d); the appellant claimed that the Medical Assessor (MA) had made an assessment on the basis of incorrect criteria and/or made a demonstrable error in applying a 10% deduction pursuant to section 323 rather than providing a pre-injury assessment of impairment, applying a 10% deduction pursuant to section 323 when such a deduction is ‘at odds with the available evidence’, and failing to consider impairment that was not as a result of the injury but due to concurrent and subsequent personal stressors; detailed examination of the applicant’s evidence and medical evidence, summarised comprehensively and in detail by the MA, and the Independent Medical Examiner reports of the parties; finding that that because of the respondent worker’s long-term memory impairment, the MA was correct in his clinical opinion that it was not possible to accurately assess her whole person impairment (WPI) at the time she commences work with the appellant, or prior to the reported development of psychiatric symptoms in the course of that employment; finding that the extent of the deduction for pre-existing injury condition or abnormality was difficult or costly to determine, and that the MA had not failed to consider that impairment was not as a result of the workplace injury but due to concurrent and subsequent personal stressors; finding that the 1/10^th deduction from the 19% WPI assessed by the MA was correct; Held –Medical Assessment Certificate affirmed.

Decision date: 21 March 2023 | Panel Members: Brett Batchelor, Dr Graham Blom and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

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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