Legal Bulletin No. 108
This bulletin was issued on 28 April 2023
Issued 28 April 2023
Welcome to the hundred and eighth 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 Decisions
McMinimee v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 18
Workplace Injury Management and Workers Compensation Act 1998; consequential injury; causation; Kumar v Royal Comfort Bedding Pty Ltd and State Government Insurance Commission (Western Australia) v Oakley considered; aggregation of injuries for the purpose of whole person impairment; section 322; Ozcan v Macarthur Disability Services Ltd considered; Held – the Certificate of Determination dated 12 April 2022 is confirmed; the matter is remitted to the same Member to settle the terms of referral to a Medical Assessor.
Decision date: 14 April 2023 | Before: President Judge Phillips
Rutter v Break Thru People Solutions [2023] NSWPICPD 17
Section 60 of the Workers Compensation Act 1987; proposed surgery; period between injury and reporting of lumbar spine symptoms; caution to use of clinical notes; adequacy of reasons; section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 78 of the Personal Injury Commission Rules 2021; Held – the Certificate of Determination dated 13 May 2022 is confirmed.
Decision date: 14 April 2023 | Before: Acting Deputy President Geoffrey Parker SC
Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19
Workers Compensation Act 1987; clause 2 of Schedule 3; calculation of pre-injury average weekly earnings; whether regulation 8C of the Workers Compensation Regulation 2016 applies to exclude from the calculation a period when workers compensation payments were received in respect of an earlier injury; Sidhu v Secretary, Department of Communities and Justice considered; Held – the Member’s Certificate of Determination dated 13 May 2022 is confirmed.
Decision date: 19 April 2023 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Insurance Australia Limited t/as NRMA Insurance v Hill [2023] NSWPIC 59
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; non-economic loss; financial records; economic loss; claimant is a 62-year-old butcher who was injured in an accident which was caused by the negligence of the insured; underwent a microdiscectomy and spinal fusion; assessed having a whole person impairment of 14%; Held – the amount of the claim for damages is approved in the total amount of $270,000.
Decision date: 15 February 2023 | Member: Hugh Macken
BSA v QBE Insurance (Australia) Limited [2023] NSWPIC 84
Motor Accident Injuries Act 2017; assessment of a claim for damages under Division 7.6 for non-economic loss, past loss of earnings and future loss of earnings; consideration of section 4.7 where the claimant is a refugee and has never been in employment; physical injuries not disputed; causation of major depressive disorder in dispute; Medlin v State Government Insurance Commission, Husher v Husher and Penrith City Council v Parks considered and applied; Held – the amount of damages for the claim is $892,771; the amount of the claimant’s costs in the matter is $74,275.99 inclusive of GST.
Decision date: 22 February 2023 | Member: Anthony Scarcella
AAI Limited t/as GIO v Husseini [2023] NSWPIC 99
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; non-economic loss; contributory negligence; pedestrian in position of danger; Held – the amount of the claim for damages is approved in the total amount of $220,000.
Decision date: 6 March 2023 | Member: Hugh Macken
QBE Insurance (Australia) Limited v Ryan [2023] NSWPIC 141
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; compensation to relatives claim; claimant fatally injured in a motor vehicle accident; nervous shock; financial support; domestic assistance; Held – the amount of the claim for damages is approved in the total amount of $86,237.25.
Decision date: 28 March 2023 | Member: Hugh Macken
Scott v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 152
Motor Accident Injuries Act 2017; miscellaneous claims assessment matter; dispute about wholly at fault, mostly at fault and contributory negligence; claimant was riding his motorcycle in the middle lane of three lanes on a clearway; the claimant pulled into lane one to pass a semi-trailer on the left when he struck the unknown tow truck that was parked/stopped in lane one contrary to the relevant road rule; claimant travelling about 70 kilometres per hour at the time of impact; insurer conceded it was not illegal for the claimant to overtake on his left in a freeway; no dispute that the unidentified vehicle was illegally parked and there was a breach of duty of care on the part of the unidentified driver; Held – claimant not wholly or mostly at fault; special costs order.
Decision date: 21 March 2023 | Member: Gary Patterson
Allianz Australia Insurance Limited v Feore [2023] NSWPIC 154
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; contributory negligence; failure to keep a proper lookout; pre-existing conditions; non-economic loss; voluminous supporting evidence; factual issues somewhat clouded by slightly differing statements and investigations; the claimant was injured in a motor vehicle accident when crossing the road and struck by the insured’s vehicle; claimant a 90-year-old man; reduction 30%; Held – the amount of the claim for damages is approved in the total amount of $160,000.
Decision date: 4 April 2023 | Member: Hugh Macken
Allianz Australia Insurance Limited v Thwaites [2023] NSWPIC 169
Motor Accident Injuries Act 2017; settlement approval issued under section 6.23;damages claim; claimant 94-years-old; car vs pedestrian; breach of duty conceded; multiple upper limb and lower limb fractures; degloving injuries to right arm and both lower legs; whole person impairment of 12%; Held - settlement offer of $140,000.00 approved as just, fair and reasonable, and within the range of likely outcomes.
Decision date: 18 April 2023 | Member: Terence Stern OAM
Workers Compensation non-Presidential Member Decisions
BDQ v Secretary (Department of Communities and Justice) [2023] NSWPIC 145
Workers Compensation Act 1987; claim for functional neurological disorder; claims for weekly compensation and treatment expenses pursuant to section 60;consideration of applicant’s statement, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b)(i) in relation to which his employment with the respondent was the main contributing factor; AV v AW considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury since 14 July 2022; Wollongong Nursing Home Pty Limited v Dewar and ACW v ACX considered; Held – the applicant sustained a “disease” injury (being a functional neurological disorder) pursuant to section 4(b)(i) as a result of excessive workload and stress in the course of his employment with the respondent, and in relation to which his employment with the respondent was the main contributing factor to the contraction of that disease; the injury will be deemed to have occurred on 6 January 2022 (that being the date agreed upon between the parties); the applicant has been and remains incapacitated for work as a result of the injury; he has had no current work capacity since then; award for the applicant pursuant to section 37(1) from 14 July 2022 and on a continuing basis; award for the applicant pursuant to section 60.
Decision date: 6 April 2023 | Member: Gaius Whiffin
BFN v Australian Unity Home Care Service Pty Limited [2023] NSWPIC 156
Workers Compensation Act 1987; section 4(b); primary psychological injury disputed; defence under section 11A(1) raised; section 66 permanent impairment claim disputed; weekly benefits and treatment and related expenses disputed; Attorney General's Department v K, Federal Broom Co Pty Ltd v Semlitch, State Transit Authority v El-Achi, AB v AW; Department of Education and Training v Sinclair, ISS Property Services Pty Ltd v Milovanovic and Kushwaha v Queanbeyan City Council considered and applied; Held – the applicant suffered a work-related primary psychological injury within the meaning of section 4(b) and her employment with the respondent was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of the condition; the respondent has not discharged its onus under section 11A(1); the matter is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor under section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment.
Decision date: 5 April 2023 | Member: Anthony Scarcella
Hoque v Venice Projects Pty Ltd [2023] NSWPIC 159
Claim for weekly payments; whether applicant sustained Injury to lumbar spine arising out of or in the course of his employment; applicant had previous surgery to lumbar spine; whether that condition had resolved; applicant claimed injury in 2022 while working as a labourer; applicant indicated different dates of injury; reliance on clinical records; whether chain of causation broken by subsequent injury; whether applicant had incapacity as a result of injury; Held – finding that applicant sustained injury arising out of or in the course of his employment; chain of causation not broken; finding the applicant had period of no current capacity followed by capacity for three hours per day on three days per week; pre injury average weekly earnings (PIAWE) agreed; respondent to pay weekly payments accordingly.
Decision date: 13 April 2023 | Member: Jill Toohey
Broderick v Swan Hardware & Staff Pty Ltd [2023] NSWPIC 160
Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to right ankle; applicant claimed to have sustained consequential condition of previously injured right shoulder and left and right knees; consideration of McCarthy v Patrick Stevedores No 1 Pty Limited, Moon v Conmah Pty Limited, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Seif v Secretary, Department of Family and Community Services, Kumar v Royal Comfort Bedding Pty Ltd, Moriarty-Baes v Office Works Superstores Pty Ltd and Kooragang Cement Pty Ltd v Bates; Held – applicant sustained consequential conditions of his right shoulder, right knee; and left knee as a result of injury to his right ankle; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor.
Decision date: 13 April 2023 | Senior Member: Kerry Haddock
BOA v State of New South Wales (NSW Police Force) & Ors [2023] NSWPIC 161
Claim for lump sum death benefit and weekly benefits pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act); funeral expenses pursuant to section 26 of the 1987 Act; and interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; agreement by dependants on proposed apportionment; first respondent disputed that worker’s death resulted from injury arising out of in the course of employment; reliance on section 14(2) of the 1987 Act; consideration of Kooragang Cement Pty Ltd, Mason v Demasi, Parmalat Australia Ltd v Cheadle, Murphy v Allity Management Services Pty Ltd, Holdlen Pty Ltd v Walsh, Haidary v Wandella Pet Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Limited; Held – the worker died as a result of injury arising out of or in the course of employment with the first respondent; the worker’s will was overborne and his death was therefore not caused by an intentional self-inflicted injury; the applicant, second respondent and third respondent were dependent on the worker; there were no other persons dependent on the worker; the first respondent to pay lump sum death benefit; apportioned in accordance with agreement; weekly benefits and funeral expenses; the first respondent to pay interest on the lump sum death benefit and weekly benefits; the first respondent to pay costs, as agreed or assessed, of the applicant, second respondent and third respondent, including 30% increase for complexity.
Decision date: 14 April 2023 | Senior Member: Kerry Haddock
Personal Injury Commission Act 2020; the second respondent is a resident of Tasmania; consideration of whether the matter may be federally impacted; the Personal Injury Commission cannot decide whether the determination involves an exercise of federal jurisdiction, but should express a view; consideration of Fletcher International Exports Pty Ltd v Lee, State of New South Wales v Kanajenhalli and Citta Hobart Pty Ltd v Cawthorn; opinion expressed that the matters raised give rise to an issue capable of judicial determination; Held – the application is dismissed pursuant to section 54(b); the application may be restored if remitted by the District Court pursuant to section 26(5)(a).
Decision date: 14 April 2023 | Senior Member: Kerry Haddock
The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) resulting from injury sustained by her late husband, Mr Proud, to his respiratory system (being injury in the nature of asthma/chronic obstructive pulmonary disease) in the course of his employment with the respondent, with employment being the main contributing factor to injury; the respondent disputes the applicant’s claim in that the respondent disputes Mr Proud sustained injury in the course of his employment with the respondent with his employment being the main contributing factor to respiratory injury, as alleged; Held – the late Mr Proud sustained injury to his respiratory system (asthma and chronic obstructive pulmonary disease) in the course of his employment with the respondent, with his employment being the main contributing factor to injury; the deemed date of injury is 28 October 2019; the applicant’s claim for permanent impairment compensation payable under section 66 of the 1987 Act is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment “on the papers”.
Decision date: 14 April 2023 | Member: Jacqueline Snell
Bessant v Newcastle Caravan City [2023] NSWPIC 167
Reconsideration Application by applicant worker to set aside Certificate of Determination (COD) issued following a Medical Assessment Certificate (MAC) issued in 2017; reconsideration Application on basis of significant deterioration in applicant’s condition as a result of further surgery on his cervical spine, following earlier surgery prior to the issue of the 2017 MAC; liability for the further surgery declined by the respondent on the ground that it was not reasonably necessary as a result of the work injury; this surgery had the effect of increasing the applicant’s whole person impairment (WPI); the applicant relied on section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and section 66A(3)(a) of the Workers Compensation Act 1987 (1987 Act) to submit that the workers compensation legislation contemplated deterioration in an injured worker’s condition after issue of a MAC and COD based on that MAC; consideration of the former section 350 of the 1998 Act and matters discussed by Roche ADP in Samuel v Sebel Furniture Ltd as to the Personal Injury Commission’s power of reconsideration under section 57(1) of the Personal Injury Commission Act 2020; Held – workers compensation legislation is beneficial legislation, notwithstanding the insertion into the 1987 Act of section 66(1A) and into the 1998 Act of section 322A, discloses a cost saving objective; discretion to set aside COD exercised in favour of the applicant; determined that the worker sustained 34% WPI, assessed by the independent medical examiners retained by the applicant and the respondent as a result of the subject work injury.
Decision date: 17 April 2023 | Member: Brett Batchelor
BHK v Secretary, Department of Education [2023] NSWPIC 166
Workers Compensation Act 1987; claim for weekly benefits and medical expenses for psychological injury; respondent conceded injury and incapacity for work; defence pursuant to section 11A; discipline and dismissal relied on; applicant is a teacher, placed on Not To Be Employed list while allegations of inappropriate interaction with students investigated; consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Kooragang Cement Pty Ltd v Bates, Irwin v Director-General of Education and Northern NSW Local Health Network v Heggie; Held – award for the respondent.
Decision date: 17 April 2023 | Member: Senior Member Kerry Haddock
Dedic v Western Sydney Institute [2023] NSWPIC 168
Claim for permanent impairment for psychological injury; whether the worker sustained injury in the course of her employment; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause her injury; reference to Attorney General’s Department v K; whether injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; reference to Hamad v Q Catering P/L; Held – the worker sustained an injury in the course of her employment with the respondent; the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; referral for assessment of permanent impairment to Medical Assessor.
Decision date: 18 April 2023 | Member: John Isaksen
Motor Accidents Medical Review Panel Decisions
Insurance Australia Limited t/as NRMA Insurance v Mansour [2023] NSWPICMP 141
Motor Accident Injuries Act 2017; threshold injury dispute;claimant suffered injury in rear end collision in April 2018; long history of neck pain; clinical notes showed radiculopathy developed in February 2019; claimant’s version that radiculopathy developed earlier rejected; opinion that April 2018 CT Scan was not accurately reported as showing a fragmented disc or annular tear regarded as speculative; opinions that motor accident caused herniated disc and onset of radiculopathy based on a history of early onset of radiculopathy rejected; Paric v John Holland Constructions applied; Panel not satisfied that motor accident caused a herniated disc resulting in radiculopathy; claimant only suffered a soft tissue injury; Held – claimant suffered threshold injury; original Medical Assessment Certificate revoked.
Decision date: 12 April 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Curtin and Dr Neil Berry | Injury module: Spine
QBE Insurance (Australia) Limited v Quigley [2023] NSWPICMP 143
The claimant sustained injury as a pedestrian on 30 April 2018; she sustained physical injury including bruising, injury to right shoulder, right arm, elbows and biceps, fracture of left elbow and injury to left foot; alleged suffered hearing loss and tinnitus as result of accident; dispute as to whether treatment, namely hearing aids, reasonable and necessary and whether related to injury sustained in the accident; claimant had history of chronic sinusitis, eustachian dysfunction and recurrent otitis externa in the context of work as a swimming instructor; Medical Assessor Howison determined the claimant had bilateral high tone sensori-neural hearing loss and required bilateral digital hearing aids as a result of the accident; Held –hearing loss not related to injury caused by the accident because no loss of consciousness, the claimant did not suffer a head strike, no abnormal Glasgow Coma Score, no record of fractured skull or fracture of the temporal bones and the claimant’s hearing loss is symmetrical; determined the claimant suffers from somatosensory tinnitus related to the physical injuries caused by the accident; hearing aids reasonable and necessary in the circumstances to mast the tinnitus and improve the recovery of the claimant.
Decision date: 14 April 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Brian Williams | Treatment Type: Equipment
Ali v AAI Limited t/as AAMI [2023] NSWPICMP 144
Motor Accident Injuries Act 2017; Medical Review Panel; review of Medical Assessment Certificate (MAC) of Medical Assessor Samuell who assessed 2% whole person impairment (WPI); dispute related to assessment of permanent impairment; Held –diagnosis of post-traumatic stress disorder (partially resolved), MAC of Medical Assessor Samuell revoked; new certificate issued; assessment of 1% WPI.
Decision date: 14 April 2023 | Panel Members: Member Susan McTegg, Dr Samson Roberts and Dr Wayne Mason | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Bitupave Limited v Annetts [2023] NSWPICMP 142
Assessment of permanent impairment from psychiatric injury; assessment done by means of audio-video link (AVL); Medical Assessor (MA) had no vision of respondent during assessment due to a malfunction of respondent’s camera; whether examination deficient as a consequence of MA having no vision of the respondent; Held – Appeal Panel considered it is imperative that there be visual contact with a worker for at least for some portion of the examination to enable a proper evaluation of a worker’s impairment in all psychiatric impairment rating scale (PIRS) categories; respondent re-examined; Medical Assessment Certificate revoked.
Decision date: 13 April 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Tremlett v Hays Specialist Recruitment (Australia) Pty Limited [2023] NSWPICMP 146
Assessment of whole person impairment (WPI) from brain injury; appellant contended that Medical Assessor (MA) did not have regard to all the evidence, that MA did not apply correct criteria, that MA did not explain why his opinion differed from another Independent Medical Examiner’s (IME) opinion, and that MA made decision about injury inconsistent with the finding of a Member; Held –Appeal Panel held that the MA is not required to explain why his opinion differed from another IME’s opinion and Appeal Panel rejected all other submissions of the appellant; Medical Assessment Certificate upheld.
Decision date: 17 April 2023 | Panel Members: Marshal Douglas, Dr Robin Fitzsimons and Dr Michael Davies | Body system: Nervous System and Urinary Symptoms
Yumul v Scottish Pacific Business Finance [2023] NSWPICMP 147
Worker’s appeal against a determination by a Medical Assessor (MA) that she suffered 1% WPI as a result of an accepted psychological injury; MA performed and relied upon psychometric testing to support his view that the worker was feigning or exaggerating her psychological symptoms; worker alleged that as there was no forewarning of the psychometric testing she had been denied procedural fairness and that MA had erroneously assessed each of the psychiatric impairment rating scale (PIRS) categories;Queanbeyan Racing Club Ltd v Burton and Maricic v The Registrar, Workers Compensation Commission considered; Held – as the MA had rejected the worker’s case on a basis not previously raised or addressed in the evidence, he was obliged to provide her with an opportunity to deal with it; as the results of the psychometric testing were not recorded in the Medical Assessment Certificate (MAC) and as the MA’s description of the results appeared equivocal the Appeal Panel were unable to ascertain the actual path of his reasoning; MAC revoked and, after re-examination of the worker, new MAC issued.
Decision date: 17 April 2023 | Panel Members: Paul Sweeney, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric
Camarda v C-Lite Pty Ltd [2023] NSWPICMP 148
Medical Assessor (MA) assessed total Binaural Hearing Impairment (BHI) of 25.5% and then deducted 9.9% for pre-existing non-related loss and 1.7% for presbycusis correction which resulted in an adjusted total BHI of 13.9% or 7% WPI; MA accepted the history of occupational noise exposure and noted “no other competing medical cause for hearing loss” but made deductions at every frequency; Panel noted that the MA made deductions for the greater losses in the right ear, such loss being of unknown aetiology, as did both Independent Medical Examiners; Held – Panel satisfied that MA provided an adequate and detailed explanation in relation to why he made the deductions in all frequencies; Medical Assessment Certificate confirmed.
Decision date: 19 April 2023 | Panel Members: Member Carolyn Rimmer, Dr Henley Harrison and Dr Joseph Scoppa | Body system: Hearing
Motor Accidents Merit Review Decisions
Ataei v QBE Insurance (Australia) Limited [2023] NSWPICMR 23
Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings (PAWE); Schedule 1, clause 4(1); sole trader; business expenses; GST; proceeds of the business; earnings received as an earner; Held – the reviewable decision is set aside.
Decision date: 4 April 2023 | Merit Reviewer: Katherine Ruschen
Thomas v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 24
Motor Accident Injuries Act 2017; merit review; determination of pre-accident weekly earnings (PAWE) under Schedule 1, clause 4; where claimant had not been earning continuously for 12 months before the accident; insurer argued that PAWE should be determined in accordance with Schedule 1, clause 4(2)(a); whether Schedule 1, clause 4(3) applied; Held – the examples provided in the note to Schedule 1, clause 4(3) are non-exhaustive; the examples all involve circumstances in which an earner has been earning; none of the examples involve circumstances where an earner goes from earning nothing to earning something; the term ‘earnings circumstances’, as used in Schedule 1, clause 4(3) refers to circumstances involving an earner who is earning at the time the change in circumstances occurs; if the earner is not earning, there are no ‘earnings circumstances’, and the subclause does not apply; for there to be ‘earnings circumstances’ there must be earnings; PAWE determined under Schedule 1, clause 4(2)(a); Held – reviewable decision set aside; matter remitted to insurer.
Decision date: 14 April 2023 | Merit Reviewer: Brett Williams
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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