Legal Bulletin No. 114

Issued 9 June 2023

Welcome to the hundred and fourteenth 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

DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30

Workers compensation; Workplace Injury Management and Workers Compensation Act 1998; section 352(3); whether the monetary threshold required to appeal is satisfied; Grimson v Integral Energy, Mawson v Fletchers International Exports Pty Ltd and Ausgrid v Parasiliti applied; whether the decision appealed against is an interlocutory decision within the meaning of section 352(3A); South Western Sydney Area Health Service v Edmonds applied; determination of a dispute on the basis of common sense; Hevi Lift (PNG) Ltd v Etherington; Moriarty-Baes v Office Works Superstores Pty Ltd applied; Held – leave to appeal the Member’s interlocutory decision is granted pursuant to section 352(3A); the Member’s Certificate of Determination dated 18 October 2022 is confirmed.

Decision date: 29 May 2023 | Before: Deputy President Elizabeth Wood

McGrath v P.M. Electric Pty Limited [2023] NSWPICPD 31

Workers compensation; interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) with respect to lump sum death benefit payable in accordance with section 25 of the Workers Compensation Act 1987; alleged error of discretion; House v R applied; held that the rate of inflation is not to be considered in exercising the discretion in section 109 of the 1998 Act; Held – orders 11, 12 and 13 of the Certificate of Determination dated 2 June 2022 are confirmed.

Decision date: 31 May 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Transport Accident Commission of Victoria v Brady [2023] NSWPIC 239

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); 49-year-old female; claimant a passenger in a Victorian registered vehicle; driver lost control and collided with another vehicle near Marimbula; liability wholly admitted; claim made in New South Wales under the relevant choice of law principles; claimant working full-time as a registered nurse prior to the accident; claimant returned to work on restricted hours and lost two opportunities for promotion; agreed entitlement to non-economic loss; initial settlement offer not approved; proposed amount increased substantially after further discussions; Held – proposed settlement is just, fair and reasonable; settlement approved for $630,000.00.

Decision date: 15 May 2023 | Member: Gary Patterson

Allianz Australia Insurance Limited v Giuriato [2023] NSWPIC 240

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant was injured whilst getting up from her seat to alight from a bus; fracture to her thoracic spine; lacerations to head and back; contributory negligence; non-economic loss; parties desire to facilitate a quick settlement to avoid uncertainty and matter proceeding to an assessment; Held – proposed settlement is just, fair and reasonable; settlement approved for $160,000.00.

Decision date: 22 May 2023 | Member: Hugh Macken

Insurance Australia Limited t/as NRMA Insurance v Tahir [2023] NSWPIC 248

Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant a 67-year-old man severely injured in a motor vehicle accident; rear seat passenger in a motor vehicle which was struck by a train at a level crossing; significant injuries including multiple fractures to his cervical and thoracic spine, rib fractures, fractures to his right arm as well as the development deep vein thrombosis and a pulmonary embolism; claimant employed as handyman in wife’s real estate business; non-economic loss; past economic loss; ongoing treatment; ongoing impact of day to day activities; Held – proposed settlement is just, fair and reasonable; settlement approved for $280,000.00.

Decision date: 30 May 2023 | Member: Hugh Macken

Workers Compensation non-Presidential Member Decisions

Chelin v Rock Logistics Pty Ltd [2023] NSWPIC 241

Workers Compensation Act 1987; psychological injury; dispute as to whether psychological injury caused by respondent’s actions in relation to requirement for vaccination for COVID-19; further issue of whether respondent established defence under section 11A; claim for weekly benefits compensation and medical expenses; whether applicant has current work capacity; Held – the applicant sustained psychological injury arising out of or in the course of employment; the applicant’s employment was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease; the respondent has not established a defence under section 11A; the applicant has no current work capacity from 28 August 2021; the applicant had current work capacity from 13 December 2021 ongoing; the respondent is to pay the applicant weekly compensation pursuant to sections 33, 36 and 37; the respondent is to pay the applicant’s medical and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to section 60.

Decision date: 25 May 2023 | Member: Karen Garner

Hanson v Wilke and Company Pty Ltd [2023] NSWPIC 242

Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation under Table of Disabilities for injury on 14 September 1998; issues of “notice” and “claim”; application of sections 61 and 261; consideration of Westlake v Sydney Symphony Orchestra Subscribers Committee; Toll Pty Limited v Bartimote; Eason v Bluescope Steel Ltd; Unilever Australia Ltd v Petrevska; Broken Hill Propriety Co Ltd v Kuhna; Peters Ice Cream Pty Ltd v Feeney; Gregson v L & R Dimasi Pty Ltd and Handley v Canterbury City Council; applicant gave notice of injury “as soon as possible after the injury happened”;applicant failed to make a claim within six months after the injury; failure to make a claim not due to ignorance, mistake, absence from the State or other reasonable cause; claim not made within three years after the injury happened; injury did not result in “serious and permanent disablement”; Held – award for respondent.

Decision date: 26 May 2023 | Senior Member: Kerry Haddock

Hwang v Ngoc Mai Tu trading as Eastwood Pharmacy [2023] NSWPIC 243

Workers Compensation Act 1987; claim for weekly payments; disease injury pleaded; applicant’s counsel confirmed two separate diseases alleged with the injury being in the nature of an aggravation, acceleration, deterioration under section 4(b)(ii); issue as to whether one or both diseases aggravated and whether employment main contributing factor to the aggravation; also issue as to incapacity as a consequence of any such injury; Held – on the facts, the cause of the applicant’s injury was the aggravation of one disease only; applied Federal Broom Co Pty Ltd v Semlitch in considering whether aggravation had occurred; applied AV v AW as the test of causation under section 4(b) and found that the employment was the main contributing factor to the aggravation of the disease; found some current work capacity on the evidence.

Decision date: 26 May 2023 | Member: Michael Moore

Edwards v Allwood [2023] NSWPIC 244

Total knee replacement surgery sought; undisputed left knee injury; undisputed pre-existing condition of osteoarthritis; respondent disputed surgery reasonably necessary as a result of the injury; evidence weighed in the balance and surgery found to be reasonably necessary as a result of the injury; Held – award for the applicant.

Decision date: 26 May 2023 | Member: Jane Peacock

Dakeka v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC 246

Workers Compensation Act 1987; claim for weekly payments and medical expenses for serious injury sustained by the worker as a result of a motor accident; worker claims he was employed by the first respondent or third respondent; in the alternative, worker claims that first respondent is liable to pay compensation pursuant to section 20 as the first respondent contracted with the third respondent to execute work for the first respondent; neither first respondent or third respondent were insured; reference to Attorney-General’s Department v O’Dwyer on the issue of worker; reference to Turner v Stewardson on the issue of deemed worker; reference to WorkCover Authority v Dependable Taxi Trucks and Couriers & Ors on the application of section 20; consideration of clause 4 of Schedule 3 of the 1987 Act and regulation 8F of the Workers Compensation Regulation 2016 in calculation  of worker’s pre-injury average weekly earnings where worker had been continuously employed for less than four weeks; Held – worker worked under a contract of service for the third respondent and can also be regarded as a deemed worker for the third respondent at the time the worker sustained injury; the first respondent contracted with the third respondent for the execution by the third respondent of work undertaken by the first respondent when the worker sustained injury and the first respondent is therefore liable to make compensation benefits pursuant to section 20 because the third respondent was not insured; calculation of worker’s pre-injury average weekly earnings based upon the relevant modern award; the worker has had no current work capacity since he sustained injury on 1 December 2021 and award of weekly payments made accordingly; general order for the payment of medical expenses; the fourth respondent (iCare) to make payments of compensation to the worker from the Workers Compensation Insurance Fund.

Decision date: 29 May 2023 | Member: John Isaksen

Motor Accidents Presidential Delegate Decision

Gorrie v Allianz Australia Insurance Limited [2023] NSWPIC 247

Motor Accident Injuries Act 2017; President’s Delegate rejecting an application for review of merit review decision of Merit Reviewer; relevant considerations for calculation of pre accident weekly earning (PAWE); whether a sole director of a Pty Ltd company receives “income from personal exertion” within the meaning of “loss of earnings” under clause 3 of Schedule 1; Held –I am not satisfied that there is reasonable cause to suspect that the merit review was incorrect in a material respect; the review application will not be referred to a Merit Review Panel.

Decision date: 25 May 2023 | President’s Delegate: Jeremy Lum

Motor Accidents Medical Review Panel Decisions

Hewat v Transport Accident Commission of Victoria [2023] NSWPICMP 222

Motor Accident Injuries Act 2017; Medical Assessment by Medical Assessor (MA) Gorman of minor (now threshold) injury and whole person impairment (WPI); claimant’s application for review of WPI assessment under section 7.26; no dispute about minor injury and assessment of psychiatric injuries found a non-minor PTSD; claimant first car in a three car rear end collision on a country road; injuries alleged lumbar and thoracic spine, pelvis, hip, left and right legs; MA found 0% in all areas other than the lumbar spine from which he deducted one tenth for pre-existing impairment; claimant argued no objective evidence of pre-existing impairment therefore no deduction; Held– claimant re-examined and her condition had improved; she was no longer limping or experiencing symptoms in her legs; Clause 6.21 of the Motor Accident Guidelines referred to; impairment assessed as the claimant presented at the examination; her lumbar spine injury was assessed as diagnosis related estimate (DRE) II attracting a WPI of 5%; no deduction made as there was no evidence of any symptomatic pre-existing impairment; Medical Assessment Certificate (MAC) as to minor injury not considered; MAC as to WPI revoked.

Decision date: 19 May 2023 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney and Dr Mohammed Assem | Injury module: Spine and Lower Limb

Zinn v QBE Insurance (Australia) Limited [2023] NSWPICMP 223

Motor Accident Injuries Act 2017; Medical Assessor Cameron’s assessment ofdisputes about treatment (MRIs not allowed) and minor, now threshold, injury (all injuries considered minor) and insurer’s review under section 7.26; claimant collided head on with a vehicle that turned right in front of her at an intersection; claimant alleged injuries to her neck, back and both shoulders; claimant sought whole spine MRI; insurer approved cervical spine MRI but not thoracic or lumbar spine MRIs; claimant was 53 and in 2015 had an L5/S1 anterior spinal fusion after years of back pain; claimant agreed neck injury was minor; Held – Panel did not re-examine claimant and had copies of pre and post-accident GP and specialist records which were considered; Panel satisfied that, as at the time of the accident, the claimant’s lumbar spine was asymptomatic; Panel not satisfied that there was any evidence of disruption of the previous fusion or that a disc bulge and any associated tear or fissure at L4/5 was caused by the accident as radiology revealed its presence as early as 2009; the MRIs were allowed on the basis of continuing complaints of pain and in order to rule out any damage to the previous fusion site; Medical Assessment Certificate (MAC) as to threshold injury affirmed; MAC as to treatment revoked.

Decision date: 22 May 2023 | Panel Members: Member Belinda Cassidy, Dr Neil Berry and Dr Mohammed Assem | Injury module: Spine

Dordevic v AAI Limited t/as GIO [2023] NSWPICMP 175

Dispute about whether an MRI scan of the claimants thoracic spine is reasonable and necessary; claimant had been involved in two accidents; first accident on 19 February 2019 and second accident on 5 February 2020; first accident involved a car colliding with claimant on pushbike and knocking her to the ground and second accident was regarded as a minor collision with no airbags being deployed; claimant’s immediate complaints post-accident were pain in both shoulders and in the back of her neck and head; limited complaint of treatment of back; insurer disputed that request for an MRI scan of the lumbar spine was consistent with the guidelines for imaging referral and said that this was not clinically appropriate; Held –Panel satisfied that the mechanism of the second accident resulted in a lateral force to the left and was an aggravation of injury suffered from the first accident but complaints of pain were intermittent; Panel agreed with the findings of the original Assessor and concluded that an MRI scan of the claimants thoracic spine was not reasonable and necessary in the circumstances.

Decision date: 23 May 2023 | Panel Members: Member Alexander Bolton, Dr Drew Dixon and Dr Neil Berry | Treatment Type: MRI

Nasr v AAI Limited t/as AAMI [2023] NSWPICMP 224

Review of certificate of Medical Assessor (MA) Assem of 12 July 2022; MA had found that an annular tear L4/5 in the lumbar spine was a minor (now threshold) injury; claimant injured on 27 June 2020; claimant had MRI scan on 5 January 2021 detecting an annular tear at the L4/5 level; the MA found that the claimant’s pathology was not trauma related, was inconsistent with a significant accident and was minor in nature; claimant did not report complaint of his injuries until three months post-accident; claimant had provided a statement that if he took time off work because of pain arising from accident related injuries then he would lose his job; claimant had provided evidence that he was highly motivated to continue working due to financial constraints; the Panel accepted that the claimant could have continued working as a plant operator without complaint to his employer or doctor given his financial imperative; the insurer submitted that the claimant’s annular tear was degenerative in nature and not causally related to the accident; the Panel accepted that the annular tear was causally related to the accident and therefore a non-threshold injury; the claimant’s pathology was below the L4/5 level and was an acute change and not degenerative in nature; Held – Medical Assessment Certificate  of MA Assem revoked.

Decision date: 24 May 2023 | Panel Members: Member Alexander Bolton, Dr Drew Dixon and Dr Thomas Rosenthal | Injury module: Spine

Toor v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 225

The claimant suffered injury in a motor vehicle accident on 6 March 2021; Medical Assessor (MA) Woo found the following injuries were threshold injuries: lumbar spine, soft tissue injury; pelvis and sacroiliac joints, soft tissue injury; right shoulder, soft tissue injury; right hip/pelvis, soft tissue injury; KUB ultrasound and MRI of left hip/pelvis not related to injuries caused by accident and not reasonable and necessary; complaints of pain to the sacroiliac joint; Held –small partial thickness intrasubstance tear of the subscapularis was an incidental finding and not causally related to accident; no evidence of bruising or complaint until 30 April 2021; consistency of complaint pertaining to lumbar spine; no evidence two or more signs of radiculopathy existed; pain in lumbar spine radiating to the sacroiliac joint; left hip and pelvis and right hip and pelvis normal to examination; no sign of injury to either hip or pelvis; Medical Assessment Certificate of MA Woo revoked;soft tissue injury tolumbar spine with pain radiating to sacroiliac joint is a threshold injury; right shoulder, small partial thickness intrasubstance tear of subscapularis not caused by the accident; soft tissue injury to left and right hip/pelvis not caused by the accident; KUB ultrasound and MRI of the left hip/pelvis not relate to injury caused by the accident and not reasonable and necessary.

Decision date: 24 May 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Far West Community Legal Centre Incorporated v Liyanage [2023] NSWPICMP 226

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in the one-tenth deduction he made pursuant to section 323; Panel found that although the worker had a pre-existing condition, the deduction made by the MA was consistent with all the evidence; Held – Medical Assessment Certificate confirmed.

Decision date: 26 May 2023 | Panel Members: Member Deborah Moore, Dr Graham Blom and Dr John Baker| Body system: Psychological/Psychiatric

Bond v Blacktown Area Community Centres Inc. [2023] NSWPICMP 227

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of Medical Assessor; the appellant alleged demonstrable error and the application of incorrect criteria in respect of the assessment of the lumbar spine only; submitted that section 323 deduction of 1/10^th was incorrect and that no evidence present of degenerative changes prior to injury; assessment of activities of daily living (ALD); application of test in Ryder v Sundance Bakery; Held – Medical Assessment Certificate revoked; 1/10^th deduction applied; diagnosis related estimates (DRE) category IV impairment established.

Decision date: 29 May 2023 | Panel Members: Member Richard Perrignon, Dr Drew Dixon and Dr Mark Burns| Body system: Cervical Spine and Lumbar Spine, Right Upper and Lower Extremity, Left Lower Extremity and Scarring

Transport for NSW v Naysmith [2023] NSWPICMP 228

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make a deduction pursuant to section 323; Panel found that the worker had a significant pre-existing condition but was nonetheless able to work for many years; Panel considered that on the whole of the evidence a 30% deduction was appropriate; Held –Medical Assessment Certificate revoked.

Decision date: 29 May 2023 | Panel Members: Member Deborah Moore, Dr Douglas Andrews and Professor Nicholas Glozier| Body system: Psychological/Psychiatric

Partridge v Newcastle City Council [2023] NSWPICMP 229

Psychological Injury; appellant alleged error by reason of inadequate reasoning; Panel agreed and a re-examination was found to be necessary; Held – Medical Assessment Certificate revoked.

Decision date: 30 May 2023 | Panel Members: Jane Peacock, Dr Michael Hong and Dr Graham Blom| 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.

Subscribeto receive legal bulletins to your inbox.