Legal Bulletin No. 112

Issued 26 May 2023

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

Motor Accidents non-Presidential Member Decisions

Slaiwa v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 153

Motor Accidents Compensation Act 1999; assessment of claim for damages made in accordance with section 94;psychological injury; economic loss; conflicting medical material; Held –damages under sub-sections 94 (3) and 94 (4) and costs awarded; on the issue of liability for the claim, NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.

Decision date: 22 March 2023 | Member: Hugh Macken

AAI Limited t/as GIO v Holl [2023] NSWPIC 200

Motor Accident Injuries Act 2017; 63-year-old female passenger in a State Transit bus injured when bus braked suddenly; sustained nondisplaced left thumb Ulnar collateral ligament (UCL) avulsion fracture; took two weeks sick leave from employment; works as a medical receptionist; entitled to damages for past and future economic loss only; Held –the proposed settlement is just, fair and reasonable; settlement approved under Section 6.23(2)(b).

Decision date: 24 March 2023 | Member: David Ford

Phillips v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 211

Motor Accident Injuries Act 2017; claimant is a 43-year-old man who was injured in a motor vehicle accident; claimant a delivery driver; stoic demeanour; insurer submitted accident a low-speed collision and injury to claimant unlikely; past economic loss; vocational capacity; loss of superannuation benefits; Fox v Wood damages; Held – award for claimant’s legal costs and disbursements; award for damages of $800,000, including statutory benefits paid; on the issue of liability for the claim, NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.

Decision date: 12 April 2023 | Member: Hugh Macken

QBE Insurance (Australia) Limited v Janes [2023] NSWPIC 212

Motor Accident Injuries Act 2017; settlement approval under section 6.23; claimant is a 38-year-old teacher; injured in a motor vehicle accident; insurer has admitted breach of duty of care with no allegation of contributory negligence; primary injury suffered by the claimant was a fractured right big toe and whiplash injury; claimant recovered from soft tissues injuries but not as active as prior to injury; Held – the amount of the claim for damages is approved in the total amount of $20,000.

Decision date: 24 April 2023 | Member: Hugh Macken

QBE Insurance (Australia) Limited v Gleeson [2023] NSWPIC 220

Motor Accident Injuries Act 2017; the claimant was involved in a motorbike accident with an unidentified car on 2 September 2020; claimant made an application for damages and the matter was before the Personal Injury Commission for settlement approval; initial offer of settlement not approved by the Member and further medical evidence obtained; claimant suffered injuries, among others, to his right hand and was unable to form a fist and grip with his hand; further medical evidence confirmed the claimant exceeded the whole person impairment threshold with an assessment of 15%; Held –settlement approved under section 6.23(2)(b); settlement approved for $476,643.15 with an allowance for non-economic loss of $250,000.

Decision date: 12 May 2023 | Member: Alexander Bolton

Workers Compensation non-Presidential Member Decisions

Field v Secretary, Department of Education [2023] NSWPIC 214

Workers Compensation Act 1987; claim for weekly compensation by casual teacher; whether Schedule 3 requires pre-injury average weekly earnings (PIAWE) to be calculated by dividing gross earnings by 52 or by the weeks worker actually worked; Wake v State Emergency Services considered and followed; Held – PIAWE should be calculated by reference to weeks actually worked.

Decision date: 11 May 2023 | Member: Paul Sweeney

Ellison v Colin Joss & Co Pty Ltd [2023] NSWPIC 216

Workers Compensation Act 1987; dispute as to whether applicant sustained plantar fasciitis in the course of her employment with the respondent and whether a fall on 23 June 2021 was as a consequence of the plantar fasciitis condition; claim for weekly compensation and treatment expenses also disputed; pursuant to section 4(b)(i) the applicant has sustained a plantar fasciitis injury to her right foot with her employment with the respondent being the main contributing factor to the contraction of this disease; the applicant sustained a fracture to her right 5^th metatarsal as a result of a fall on 23 June 2021 caused by her plantar fasciitis injury; Held – the respondent is to pay the applicant weekly compensation pursuant to sections 35 and 37 and treatment expenses pursuant to section 60.

Decision date: 12 May 2023 | Principal Member: Josephine Bamber

Cloud Nine Limos Pty Limited v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 218

Workers Compensation Act 1987; application pursuant to section 145 brought by the applicant, an uninsured employer, disputing the notice for reimbursement served on it by the Workers Compensation Nominal Insurer; issue in dispute was whether the worker was employed by the applicant and whether he sustained an injury in the course of his employment with the applicant; Held – on 11 June 2019 the respondent worker was a worker employed by the applicant employer; pursuant to section 4(a) the worker sustained an injury in the course of his employment with the applicant on 11 June 2019; at all relevant times the applicant not have a policy of workers compensation insurance; pursuant to section 145(4) the applicant is to reimburse the Workers Compensation Nominal Insurer the amount of $122,950.18.

Decision date: 12 May 2023 | Principal Member: Josephine Bamber

Stuart v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC 219

Claim in respect of lump sum death benefit; finding that the applicant was a worker as he was a caretaker on a farm owned by the first respondent; reliance placed upon Harris v Cudgegong Sawing; Held – employment was not a substantial contributing factor to the fatal injury as there was no compelling evidence that the deceased was engaged in any work activity at the time of his death.

Decision date: 12 May 2023 | Senior Member: Elizabeth Beilby

Trpcevski v Substrate Pty Limited [2023] NSWPIC 221

Claim for permanent impairment compensation as result of injury to thoracic spine, cervical spine and left upper extremity (shoulder); liability for injury to cervical spine and left shoulder in dispute; applicant relied on frank injury and aggravation, acceleration, exacerbation or deterioration of disease as a result of nature and conditions of employment; Held – accepted that the nature of the applicant’s work was heavy and at times repetitive; applicant’s evidence that he was fit and well, with no symptoms before frank injury to thoracic spine; no evidence in applicant’s first statement of injury to other than thoracic spine; no contemporaneous medical evidence of injury other than to thoracic spine; injury not due to nature and conditions of employment but to frank lifting incident; award for respondent for injury to cervical spine and left shoulder; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to thoracic spine.

Decision date: 15 May 2023 | Senior Member: Kerry Haddock

Kokontis v Gate Gourmet Riverside Pty Ltd [2023] NSWPIC 222

Claim for permanent impairment compensation as a result of injury to the lumbar spine, thoracic spine, right lower extremity (right hip) and left lower extremity (left knee) on 14 February 2005; compensation previously paid for permanent impairment as result of injury to lumbar spine; respondent disputed injury to thoracic spine, right hip, and left knee; lack of contemporaneous complaint to initial treating doctor of injury to right hip or left knee; no reference in applicant’s statement to left knee; applicant’s former general practitioner has retired, and clinical records not available; advocacy by applicant’s independent medical assessor; consideration of Nguyen v Cosmopolitan Homes; Uniform Civil Procedure Rules 2005, Schedule 7; Personal Injury Commission, Procedural Direction 4; Held – award for respondent for claims for injury to the right hip and left knee; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as result of injury to lumbar spine and thoracic spine.

Decision date: 15 May 2023 | Senior Member: Kerry Haddock

Friend v Vacvator Pty Ltd [2023] NSWPIC 224

Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; medical and related expenses of L5/S1 anterior interbody spacer surgery pursuant to section 60; lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted injury to left hip which respondent alleged had resolved; whether the applicant sustained injury to his lumbar spine pursuant to sections 4(a), 9A and 4(b); Held – applicant sustained injury to his lumbar spine arising out of and in the course of his employment pursuant to section 4(a) and his employment was a substantial contributing factor pursuant to section 9A; applicant sustained injury to his lumbar spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment was the main contributing factor pursuant to section 4(b)(ii); the proposed L5/S1 anterior interbody spacer surgery is reasonably necessary; the applicant was and remained totally incapacitated for work as a result of the injury to his left hip and lumbar spine from 13 April 2021 and continuing; the applicant’s condition has not stabilised and attained maximum medical improvement and accordingly it is not appropriate to refer the matter to a Medical Assessor for assessment of whole person impairment and determination of permanent impairment compensation pursuant to section 66; accordingly, the respondent is ordered to pay the costs of and incidental to L5/S1 anterior lumbar interbody fusion surgery in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation in the amount of $1,401 per week from 14 April 2021 to date, and continuing, pursuant to section 37(1); the application for permanent impairment compensation pursuant to section 66 is dismissed.

Decision date: 16 May 2023 | Member: Karen Garner

Spencer v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2023] NSWPIC 225

Workers Compensation Act 1987; weekly benefits; calculation of pre-injury average weekly earnings (PIAWE) in accordance with clauses 5(1)(c) and 5(3)(b); applicant working as a trainee for the respondent and suffered injury while a trainee; post-injury but before the period the subject of the claim; the applicant completed his training and attained a higher level; the parties agreed he therefore achieved a higher base rate of pay for the purposes of calculating his PIAWE in accordance with clause 5(3)(b); parties disagree as to whether the higher base rate of pay should be applied to those shifts in the period of the PIAWE where the applicant had earned penalty rates at the lower rate of pay while a trainee; Held – the higher rate applies to those shifts where the applicant previously earned penalty rates as a trainee; clause 5(3)(b) applies to the rate of the earnings which the applicant would have achieved, not merely to a base rate of pay; To limit the operation of the clause to only a base rate of pay is contrary to the wording of the clause and would lead to an outcome which would not accurately reflect the uplift in income to which the clause applies; capacity; whether applicant continues to suffer incapacity; applicant has ongoing partial incapacity and has at all times during the period claimed worked to the best of his capacity; respondent ordered to pay weekly compensation in accordance with the applicant’s wages schedule; medical expenses; whether the proposed reconstruction of the applicant’s injured finger is reasonably necessary; finding that the surgery is reasonably necessary as a result of the injury; respondent ordered to pay the costs of and incidental to the surgery.

Decision date: 16 May 2023 | Member: Cameron Burge

Conlan v Gunnedah Shire Council [2023] NSWPIC 226

Workers Compensation Act 1987; claim by applicant worker for the cost of left shoulder replacement surgery; based on a frank incident in which the applicant was involved; conceded by the respondent; and also the ‘nature and conditions’ of the heavy work in which the applicant was engaged over the period of his employment with the respondent; denied by the respondent; the respondent claimed that the effects of the frank injury which aggravated a pre-existing degenerative condition in the shoulder and had ceased by the time the applicant was independently medically examined by the orthopaedic surgeon retained by the respondent’s insurer; Held – on the applicant’s evidence and the histories recorded by the medical practitioner(s) who treated him and medico-legally assessed him, there was sufficient material to support a ‘nature and conditions’ injury as aggravating the pre-existing degenerative condition in the shoulder, as well as the frank incident as being causative of such aggravation; finding that the aggravation of the pre-existing condition had not ceased; finding that the injury sustained by the applicant materially contributed to the need for shoulder surgery; respondent ordered to pay for the costs of and incidental to the shoulder surgery sought by the applicant pursuant to section 60.

Decision date: 16 May 2023 | Member: Brett Batchelor

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited v O'Brien [2023] NSWPICMP 195

Motor Accidents Compensation Act 1999; Medical Review Panel matter; insurer’s application for review in relation to assessment of permanent impairment of multiple body parts; Held – the Panel revoked the certificate of the Medical Assessor and the Combined Certificate and issued a fresh certificate finding the injuries caused by the motor accident give rise to a whole person impairment which is, in total, greater than 10%.

Decision date: 8 May 2023 | Panel Members: Principal Member Josephine Bamber, Dr David Gorman and Dr Tai-Tak Wan | Injury module: Spine, Upper and Lower Limb and Brain Injury

Ginnelly v AAI Limited t/as GIO (No 1 and No 2) [2023] NSWPICMP 199

Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 October 2017 when he collided with the insurer vehicle, fell from his bike and was impaled through the abdomen; the dispute related to the assessment of permanent impairment of the teeth and need for dental treatment; claimant re-examined; claimant identified only two teeth injured by the motor accident that were sensitive; dental records showed one tooth had extensive decay 20 months prior to the motor accident; accident may have temporary exacerbated pain due to facial trauma; current persisting symptoms due to chronic infection and abnormal dental occlusion due to loss of other teeth which predated the motor accident; need for dental treatment not caused by the motor accident; no permanent impairment of the teeth; Jarvis v Allianz Australia Insurance Ltd referred to; Held – original assessment confirmed.

Decision date: 9 May 2023 | Panel Members: Principal Member John Harris, Dr Geoffrey Curtin and Dr Shane Moloney | Injury module: Minor Dental; Treatment Type: Other (Dental)

Schembri v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 200

Review of decision of Medical Assessor Cameron dated 27 February 2022; review with respect to treatment and care; causation; whether physical injuries give rise to a need for domestic assistance from the date of the motor vehicle accident to the date of assessment and thereafter for the remainder of the claimant’s life; claimant was a passenger in a car and an accent occurred on 11 October 2017; claimant suffered both physical disabilities of a soft tissue nature and psychiatric disabilities; no evidence provided of the extent of the need of the claimant/the full extent of activities affected and the hours attributed to providing domestic assistance for those activities affected; Held – the Panel was satisfied that the claimant did serve injuries giving rise to a need for domestic assistance but only for a period of six hours per week the first six months following the accident; the Panel was not satisfied that the claimant had a need for domestic assistance beyond six months after the accident.

Decision date: 9 May 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr Paul Curtin | Injury module: Treatment Type: Domestic Care

Rayner v AAI Limited t/as GIO [2023] NSWPICMP 201

Motor Accident Injuries Act 2017; medical dispute about threshold (formerly minor) injury and review of assessment under section 7.26 of Medical Assessor McGrath; claimant involved in car accident March 2018 alleging injury to neck and thoracic spine; all injuries assessed as “minor injuries”; saw GP a few days after the accident and had physiotherapy for six months; for almost three years the claimant did not see a doctor or allied health practitioner for any accident-related issue; Held – the claimant sustained a whiplash associated disorder and musculo-skeletal thoracic pain; claimant did not injure any of her cervical discs in the accident; all changes on radiology were age related and not traumatic; claimant did not sustain an injury to her spinal nerve as there were none of the five signs of radiculopathy present at the time of the re-examination or suggested in the notes or reports of other examiners; claimant aggravated pre-existing asymptomatic degenerative changes in her spine producing pain; pain is a symptom and aggravation injury is a threshold injury; in conclusion, the claimant did not sustain any non-threshold injuries.

Decision date: 9 May 2023 | Panel Members: Member Belinda Cassidy, Dr Leslie Barnsley and Dr Trudy Rebbeck | Injury module: Spine

Ringstad v Allianz Australia Insurance Limited [2023] NSWPICMP 202

Motor Accident Injuries Act 2017; the claimant suffered injury when his motorbike collided with the insured vehicle; the claimant suffered various injuries and severe laceration to the right arm; the dispute related to whether the injury was a threshold injury; claimant re-examined; discussion of interpretation of threshold injury with reference to skin injury; Dhupar v AAI Ltd applied; examination showed claimant suffered ongoing loss of sensation to the medial antebrachial cutaneous nerve injury; that skin injury found to be a non-threshold injury; other injuries found to be threshold injuries; Held – claimant suffered an injury to a nerve; finding made that claimant suffered a non-threshold injury.

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

Insurance Australia Limited t/as NRMA Insurance v Panuganti [2023] NSWPICMP 203

Motor Accident Injuries Act 2017; the claimant suffered injury from a rear end collision; the claimant suffered various injuries; claimant re-examined; injuries to cervical and lumbar spine found to be threshold injuries; right shoulder; absence of right shoulder complaint for 14 months; modest rear end collision unlikely to injure shoulder; rotator cuff pathology explained by age; finding made that right shoulder not injured; Held – claimant suffered threshold injuries to cervical and lumbar spine; original assessment revoked.

Decision date: 11 May 2023 | Panel Members: Principal Member John Harris, Dr Michael Couch and Dr Wing Chan | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Wells v Charter Contracting Pty Ltd [2023] NSWPICMP 204

The appellant submitted that the Medical Assessor (MA) erred in his assessment of the lumbar spine and veinous congestion; the Panel agreed and re-examination by Dr Dixon took place; the MA’s assessment of the lumbar spine was confirmed but there were errors in relation to the veinous congestion; Held – Medical Assessment Certificate revoked.

Decision date: 12 May 2023 | Panel Members: Member Deborah Moore, Dr Drew Dixon and Dr Mark Burns | Body system: Lumbar Spine and Left Lower Extremity

Henc v Michaelis Group Pty Limited [2023] NSWPICMP 205

Workplace Injury Management and Workers Compensation Act 1998; appeal by worker against findings in Medical Assessment Certificate (MAC) in respect of the psychiatric impairment rating scale (PIRS) category of travel, and in respect of the deduction from whole person impairment assessment pursuant to section 323; finding of error on the part of the Medical Assessor (MA) in failing to provide adequate reasons for placing the appellant worker in Class 1 of the PIRS for travel, having regard to history recorded in the MAC; finding that a re-examination of the appellant was required to determine the PIRS category for travel; having regard to improvement in the appellant’s ability to travel, Class 1 for travel was appropriate; finding that the section 323 deduction of one tenth made by the MA was correct, but not for the reason he gave; such a deduction was appropriate as the appellant’s prior psychological condition contributed to his level of impairment following the work-related injury; the extent of the deduction was difficult to determine, therefore section 323(2) was engaged, and a one tenth deduction was appropriate; Held – MAC confirmed.

Decision date: 15 May 2023 | Panel Members: Member Brett Batchelor, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Lee v QBE Insurance (Australia) Limited [2023] NSWPICMR 27

Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under Division 3.3; dispute about pre-accident weekly earnings (PAWE); change in earning circumstances; Schedule 1 clause 4(1), clause 4(2)(b) and clause 4(3); onus of proof; veracity of evidence; credibility; duty of disclosure and to act honestly and not mislead; sections 6.3 and 6.24; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is dismissed.

Decision date: 15 May 2023 | Merit Reviewer: Katherine Ruschen

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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