Legal Bulletin No. 170
This bulletin was issued on 19 July 2024
Issued 19 July 2024
Welcome to the one hundred and seventieth 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
Suttie v QBE Insurance (Australia) Limited [2024] NSWPIC 355
Motor Accident Injuries Act 2017; miscellaneous claims matter; medical assessment matter; attendant care services; water irrigation system; repair of pump; liability for claim for statutory benefits; everyday tasks; injuries include a mild traumatic brain injury; claimant filed application for medical assessment of dispute over payment of invoice for repair of water pump; removal of large log out of the river, repair of water pipe and removal of tree stump on the basis the claimant is unable to operate and maintain complex irrigation system due to the injury; referred as a miscellaneous claims dispute under schedule 2 clause 3(n) to determine preliminary dispute as to whether there is any liability for the services in dispute on the basis they meet the definition of “treatment and care”; operation and maintenance of the irrigation system was an everyday task within the definition of “attendant care services”; no evidence that the repairs subject of the claim arose by reason of failure to maintain irrigation system; Held – the tasks the subject of the invoice do not constitute attendant care services within section 1.4 and do not come within the definition of treatment of care for which the claimant is entitled to receive statutory benefits under section 3.24; application for medical assessment referred back to the Commission for determination.
Decision date: 21 June 2024 | Member: Susan McTegg
Hidalgo v Allianz Australia Insurance Limited [2024] NSWPIC 356
Motor Accident Injuries Act 2017; contributory negligence; whether the insurer is entitled to reduce statutory benefits payable in respect of the motor accident for the purposes of section 3.38; the claimant was a passenger on a state transit bus; injured left shoulder and cervical spine when attempting to secure her trolley case in the luggage rack as the bus doors closed and the bus moved forward; bus driver sharply applied the brakes to stop at a red traffic light causing the claimant to fall forward and land heavily on the floor of the bus; the claimant was not holding on to an available handrail when attempting to secure her trolley case in the luggage rack; insurer alleged 25% contributory negligence with regard to the claimant; Held – the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%.
Decision date: 2 July 2024 | Member: David Ford
AAI Limited t/as AAMI v Mamo [2024] NSWPIC 362
Motor Accident Injuries Act 2017; settlement approval; no entitlement to non-economic loss; small closed period past economic loss and small buffer future economic loss; injuries include resolved rib fractures and contusions; ongoing left shoulder injury with 3% permanent impairment; Held – proposed settlement is just, fair and reasonable; settlement approved pursuant to section 6.23.
Decision date: 6 July 2024 | Member: Shana Radnan
Lifetime Care and Support Authority of NSW v Foster [2024] NSWPIC 363
Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents (Lifetime Care and Support) Act 2006 (LTCS Act); eligibility of injured person to participate in Lifetime Care and Support Scheme (the scheme); claimant injured when he collided with the rear of a parked utility vehicle; vehicle was parked lawfully with hazard lights on and had been in position for a few minutes; insurer submitted vehicle had no causative role in the accident and vehicle was not in use or operation at the time; LTCS Act imports definition of motor accident from MAI Act into the scheme; QBE v Abberton, QBE v Lay referred to; May v TAC, GIO v King, Lamont, Hodkinson and Jorgenson v Motor Accidents Board, TAC v Hoffman & Ors, and RBK v Montague considered; Dickinson v Motor Vehicle Insurance Trust cited; section 1.9 of the MAI Act is not a gateway of governing provision for the LTCS Act; the definition of use or operation of a vehicle includes the parking of a vehicle and does not require the vehicle to be in active use at the time of the accident; the “something” that causes the injury is “an incident or accident involving the use or operation of a vehicle” which is a single concept; use or operation (as a part of the single concept) does not have to cause the injury on its own; “involving” replaces the former phrase of “arising out of the use of” and has a wide reach; if a strict causal nexus was required between use or operation and the injury the Panel would have found the vehicle was in use at the time of the accident; Held – claimant was injured in a motor accident within the definition of the LTSC Act as he was injured in a motor vehicle within the meaning of the MAI Act.
Decision date: 8 July 2024 | Panel Members: Belinda Cassidy, Alexander Bolton, and Susan McTegg
Workers Compensation non-Presidential Member Decisions
Argent v Blacktown City Council [2024] NSWPIC 305
Workers Compensation Act 1987; sections 4 and 11A; psychological injury; claim for medical and treatment expenses; Jackson v Work Directions Australia Pty Ltd, Ponnan v George Weston Foods Ltd, Stewart v New South Wales Police Service, Irwin v D-G of School Education, Commissioner of Police v Minahan cited; Held – the applicant sustained psychological injury; the applicant’s psychological injury was not “wholly or predominantly” caused by action taken by or on behalf of the respondent in respect to discipline; the respondent’s actions in respect to discipline were not “reasonable”; section 11A(1) does not apply and therefore does not bar the applicant from receiving workers compensation; the respondent is to pay the applicant’s reasonably necessary medical and treatment expenses.
Decision date: 12 June 2024 | Member: John Turner
Meyers v Andrew Miedecke Motors Pty Ltd [2024] NSWPIC 357
Workers Compensation Act 1987; applicant sustained a lumbar spine injury assessed at 14% whole person impairment; appeal against the Medical Assessment Certificate (MAC) was unsuccessful; section 66 lump sum compensation paid; the applicant subsequently asserted a deterioration of his condition; the Certificate of Determination (COD) was reconsidered and matter referred again for assessment under section 329 based on a threshold dispute; the Medical Assessor assessed permanent impairment at 25%; further COD issued for payment of section 66 lump sum compensation; insurer sought reconsideration of further COD on the basis that the further assessment was limited to a threshold dispute; whether the applicant was entitled to further assessment under section 322A pursuant to section 329; Hochbaum v RSM Building Services Pty Ltd referred to; applicant not entitled to further section 66 lump sum compensation; Lizdenis v Centrel Pty Ltd, Galea v Colourwise Nursery (NSW) Pty Ltd considered; Held – applicant’s claim for reconsideration of MAC and Member’s decision are based on threshold dispute; respondent accepted threshold assessment as valid; COD revoked as to further payment of section 66 compensation.
Decision date: 4 July 2024 | Principal Member: John Harris
Dimian v Millennium Security Specialist Services Pty Ltd [2024] NSWPIC 360
Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and medical or related treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, medical reports, other treatment records, claim correspondence, as well as factual and contractual material; respondent accepts that the applicant sustained a psychological injury and has no current work capacity as a result but relies upon a defence under section 11A(1); applicant concedes injury was wholly or predominantly due to actions with respect to discipline and/or transfer; consideration of whether the respondent can establish the reasonableness of its actions with respect to discipline and/or transfer; Department of Education and Training v Sinclair, Makdessi v Millennium Security Specialist Services Pty Ltd, Jeffery v Lintipal Pty Ltd, Pirie v Franklins Ltd, Melder v Ausbowl Pty Ltd, Buxton v Bi-Lo Pty Ltd, Ritchie v Department of Community Services, Secretary of the Department of Foreign Affairs and Trade v Styles & Anor, Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad, Rail Corporation NSW v Aravanopules, Northern NSW Local Health Network v Heggie considered; Held – the respondent has failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer or discipline pursuant to section 11A(1); awards for the applicant for weekly benefits compensation and medical or related treatment expenses pursuant to section 60.
Decision date: 5 July 2024 | Member: Gaius Whiffin
Shabutra v Australian Unity Ltd [2024] NSWPIC 361
Workers Compensation Act 1987; whether the applicant sustained injury pursuant to section 4; whether the employment was a substantial contributing factor to the injury pursuant to section 9A, or the main contributing factor pursuant to section 4(b)(ii); claim for weekly compensation pursuant to sections 36 and 37; claim for medical or related treatment expenses pursuant to section 60; Held – the applicant sustained a personal injury arising out of or in the course of employment and the applicant’s employment was a substantial contributing factor to the injury; the applicant is entitled to weekly payments of compensation; the applicant is entitled to compensation for reasonably necessary medical or related treatment expenses.
Decision date: 5 July 2024 | Member: Sophie Jones
Roy v Endless Belt (Wollongong) Pty Ltd [2024] NSWPIC 364
Workers Compensation Act 1987; worker alleges consequential conditions to the left and right shoulders, neck and lumbar spine as a result of an accepted injury to the left hand and wrist; respondent refutes consequential conditions; claim for lump sum compensation pursuant to section 66; Kooragang Cement Pty Ltd v Bates, Rail Services Australia v Dimovski & Anor, Kumar v Royal Comfort Bedding discussed; Held – consequential conditions to the bilateral shoulders and neck arose from traumatic hand injury; award for the respondent with respect to claim for lumbar spine; consequential condition not satisfied on the balance of probabilities that symptoms in the lumbar spine are consequential due to paucity of medical evidence; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment of the left hand, wrist and shoulder, neck and right shoulder.
Decision date: 8 July 2024 | Member: Diana Benk
State of New South Wales (Fire and Rescue NSW) v Pinsak & Anor [2024] NSWPIC 365
Workers Compensation Act 1987; apportionment of lump sum death benefit pursuant to section 25(1) and claim for interest; liability accepted; concerns as to ability of second respondent to manage funds once released by the trust to him; second respondent not under intellectual disability and no evidence of mental health issues; TNT Group 4 Pty Ltd v Halioris, Wratten v Kirkpatrick, Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Powell v McClenahan & Ors, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor considered; Held – lump sum death benefit apportioned as to 78% to first respondent and 22% to second respondent; no interest awarded during period that the matter was adjourned at respondents’ request; matter certified as complex and costs subject to 10% increase; matter listed for further conference for orders to be made with respect to amount apportioned to second respondent once trust established on his behalf.
Decision date: 8 July 2024 | Senior Member: Kerry Haddock
Wyborn v St Andrew's Village Ballina Ltd [2024] NSWPIC 366
Workers Compensation Act 1987; claim for compensation pursuant to section 60 for past and future medicinal cannabis treatment; accepted physical and psychological injuries resulting from assault at work; prior psychiatric history; chemical coping history; cost of treatment; actual effectiveness of treatment; Held – award in favour of the applicant for past treatment expenses; ongoing expenses subject to the operation of section 60.
Decision date: 9 July 2024 | Member: Rachel Homan
Moore v Queanbeyan-Palerang Regional Council [2024] NSWPIC 368
Workers Compensation Act 1987 (the 1987 Act); claim for whole person impairment for accepted psychological injury pursuant to section 66; worker seeks referral of a medical dispute to a medical assessor alleging injury is a “disease injury” within the meaning of section 4; employer argues that applicant suffered two different pathologies namely post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) which should be assessed separately; Department of Juvenile Justice v Edmed, Ozcan v Macarthur Disability Services Limited considered; Held – a diagnosis made could not be equated with “injury” for the purpose of the 1987 Act; the MDD resulted from the PTSD; medical dispute referred for an assessment of whole person impairment on the basis of a “disease injury”.
Decision date: 9 July 2024 | Member: Paul Sweeney
Sada v Woolworths Group Ltd [2024] NSWPIC 369
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injury to lumbar spine and right hip; in 2014, claim for compensation pursuant to section 66 in respect of frank injury to lumbar spine with a date of injury of 28 May 2012 resolved by complying agreement pursuant to section 66A for 12% whole person impairment; claim for compensation pursuant to section 66 in respect of lumbar spine and right hip with a date of injury of 10 October 2017; whether applicant sustained lumbar spine and right hip on 10 October 2017; whether applicant precluded by section 66(1A) from making a claim for compensation pursuant to section 66 on the basis that it is a second claim; Held – applicant sustained an injury to his lumbar spine and right hip on 10 October 2017; injury sustained in the course of his employment; the applicant’s employment was the main contributing factor; applicant is entitled to pursue the claim for permanent impairment compensation; matter remitted to the President to be referred to a medical assessor for assessment.
Decision date: 9 July 2024 | Member: Karen Garner
Saraya v Saraya Wreckers Pty Ltd [2024] NSWPIC 370
Workers Compensation Act 1987 (the 1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); no dispute as to injury; claim for impairment compensation pursuant to s 66 of the 1987 Act; whether the applicant is barred from receiving compensation by section 261 of the 1998 Act; Bluescope Steel Ltd v Eason; Gregson v L & Mr Dimasi Pty Ltd; Broken Hill Proprietary Company Ltd v Kuhna; Held – the applicant is not barred by section 261 of the 1998 Act from recovering compensation; matter remitted to the President for referral to a medical assessor pursuant to section 321 of the 1998 Act for assessment.
Decision date: 10 July 2024 | Member: John Turner
Motor Accidents Medical Review Panel Decisions
Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 422
Motor Accident Injuries Act 2017; medical dispute as to person impairment and threshold injury; claimant was struck by the insured vehicle while crossing a road; the claimant has little recollection of the accident; he lapsed into an unconscious state and was taken to hospital where he was intubated in the ICU; blood alcohol level was elevated; reduced Glasgow Coma Score and discharged a week later; the insurer wholly admitted liability for the claim; claimant alleges a closed head injury causing hearing loss/tinnitus, anomia and vertigo; Medical Assessor (MA) found causation and 14% permanent impairment for hearing loss and anomia; MA also found that hearing loss/tinnitus is a threshold injury; Held – Medical Review Panel not satisfied that any of the referred injuries were caused by the accident; Medical Assessment Certificate revoked.
Decision date: 28 June 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Brian Williams | Injury module: Ear, Nose, Throat and Related Structure
Neysie v AAI Limited t/as AAMI [2024] NSWPICMP 423
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor determined that the proposed treatment disputes were not caused by the motor accident; issue of causation considered according to section 6.6 of the Motor Accident Guidelines; Held – proposed treatment for left knee arthroscopy was causally related to the accident and was reasonable and necessary in the circumstances; proposed treatment and care for left shoulder surgery did not relate to the injury caused by the motor accident; Medical Assessment Certificate revoked.
Decision date: 28 June 2024 | Panel Members: Member Terence Stern OAM, Dr Geoffrey Stubbs, and Dr Sophia Lahz | Injury module: Upper Limb and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Rose [2024] NSWPICMP 424
Motor Accidents Compensation Act 1999; insurer’s application for review under section 63 of a permanent impairment dispute; claimant was a rear seat passenger in a car which left the road and hit a tree; claimant sustained physical injuries not referred for assessment and claimed that he developed psychological symptoms; Medical Assessor determined permanent impairment at 15%; insurer argued claimant had pre-existing anxiety disorder not properly assessed; delay in onset of psychological symptoms and inconsistency between reported functionality and symptoms at examination; joint neuropsychological report suggested claimant was exaggerating symptoms; Medical Review Panel concerned at reliability of claimant’s evidence due to neuropsychologist’s report; Held – accident could have caused psychological injury; claimant sustained a psychiatric disorder as a result of the accident; claimant suffers from post-traumatic stress disorder and adjustment disorder; 5% permanent impairment; no adjustment for treatment; no assessment of pre-existing and subsequent impairment necessary; no matter of principle.
Decision date: 2 July 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Rickard-Bell, and Dr Doron Samuell | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Guo [2024] NSWPICMP 425
Motor Accident Injuries Act 2017; threshold dispute; T-bone collision; significant pre-accident psychiatric symptoms; consideration of pre-accident records; examination by Medical Assessors; AAI Ltd v Hoblos referred to; Held – claimant suffered pre-existing anxiety disorder which was materially aggravated by the motor accident due to the emergence of further symptoms; claimant sustained a psychological injury; non-threshold injury confirmed.
Decision date: 2 July 2024 | Panel Members: Principal Member John Harris, Dr Doron Samuell, and Dr Wayne Mason | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Karhani [2024] NSWPICMP 426
Motor Accident Injuries Act 2017; claimant was a driver in a car that collided with another car; original assessment certified that a specified gym membership treatment relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances; Medical Appeal Panel’s opinion was that the subject motor accident caused the claimants physical injuries and aggravated her ongoing psychological impairments; a supervised gym exercise program would likely improve her physical condition, reduce her weight and help with her ongoing psychological impairments; the effectiveness of treatment and care should be measured against the Clinical Framework for the Delivery of Health Services and clause 4.76 of the Motor Accident Guidelines; clause 4.76 provides that treatment efficacy should be measurable, consider the whole person and their personal circumstances, empower the person to manage their recovery, and goal-focused specifically targeted at return to participation; Held – Original Medical Assessment Certificate is revoked; treatment and care by way of a gym membership is reasonable and necessary in the circumstances as it relates to the injury caused by the motor accident.
Decision date: 2 July 2024 | Panel Members: Member Ray Plibersek, Dr Michael Couch, and Dr Margaret Gibson | Treatment Type: Gym/Exercise Program
Piccione v Allianz Australia Insurance Limited [2024] NSWPICMP 427
Motor Accident Injuries Act 2017; review of a medical assessment as to whether physical injuries caused by the motor accident are greater than 10% permanent impairment; issues of causation; claim made a number of years after the motor accident; assessment on the papers; absence of contemporaneous complaint; symptoms unrelated to the accident; Held – Medical Review Panel not satisfied that the claimant suffered a left wrist injury caused by the accident; total permanent impairment assessed at 8% and therefore not greater than 10%; Medical Assessment Certificate revoked.
Decision date: 2 July 2024 | Panel Members: Member Elizabeth Medland, Dr Margaret Gibson, and Dr Shane Moloney | Injury module: Upper Limb, Lower Limb, and Skin
Strbac v Allianz Australia Insurance Limited [2024] NSWPICMP 428
Motor Accident Injuries Act 2017; claimant was waiting at a bus stop and boarded the bus; the driver allegedly opened the door again to enable another passenger to board; the claimant was standing beside the door and allegedly was struck as it opened; claim for injury to left shoulder, left hip, neck and back; the insurer denied liability for the claim and makes no admission that the claimant suffered any injury as alleged; alleged incident not reported by bus driver; medical disputes as to person impairment caused by the accident; Medical Assessor (MA) Khan certified permanent impairment less than 10% (being 8%); Medical Review Panel considered the issue of causation according to the Motor Accident Guidelines and determined permanent impairment on the clinical signs upon examination found at the time of assessment by the Panel; Held – Panel not satisfied that accident caused injury to cervical spine; Panel finds same degree of permanent impairment as MA Khan but on different grounds; Medical Assessment Certificate revoked.
Decision date: 2 July 2024 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Tania Rogers | Injury module: Spine, Upper Limb, and Lower Limb
Lay v AAI Limited t/as GIO [2024] NSWPICMP 429
Motor Accidents Compensation Act 1999; treatment reasonable and necessary; treatment related to injury caused by the accident; past treatment; future treatment; decompression and fusion surgery; domestic assistance; physiotherapy; general practitioner consultations; past and future GP consultations; future physiotherapy consultations; decompression and fusion surgery; post-operative rehabilitation; Panadeine Forte and Lyrica; past and future domestic assistance reasonable and necessary and related to injury caused by the accident; no significant abnormalities found on examination although claimant pain focused; accident caused aggravation of pre-existing degenerative spinal condition; claimant developed chronic pain disorder; surgery not indicated where not established, persisting radiculopathy or myelopathy and having regard to pain syndrome; long-term use of codeine and Lyrica harmful and not beneficial to recovery; physiotherapy to maintain a few days of improved symptoms without demonstrable improvement not reasonable and necessary in the circumstances; Held – Medical Assessment Certificate revoked; past GP consultations and three future GP consultations for next five years reasonable and necessary and related to injury caused by accident; C5/6 decompression and fusion surgery not reasonable and necessary; post operative rehabilitation not reasonable and necessary; future physiotherapy not reasonable and necessary; Panadeine Forte and Lyrica not reasonable and necessary; past domestic assistance of four hours per week for three months reasonable and necessary and related to injury caused by accident; future domestic assistance of four hours per week not reasonable and necessary and not related to injury caused by accident.
Decision date: 3 July 2024 | Panel Members: Member Susan McTegg, Dr Ian Cameron, and Dr Peter Yu | Treatment Type: GP Consultations, Surgery, Domestic Assistance, Physiotherapy, Medication, and Other
AAI Limited t/as AAMI v Free [2024] NSWPICMP 430
Motor Accidents Compensation Act 1999; claimant struck by vehicle in carpark and thrown; assessment of permanent impairment; claimant alleged impairment of multiple body parts; consideration of medical records; absence of complaint of some body parts in contemporaneous records; omission of injury of some body parts in claim form; AAI Ltd v McGiffen and Bugat v Fox referred to; examination by Medical Assessors and extensive review of radiology; findings made that some body parts recovered based on records and nature of injuries; other body parts, except right shoulder, had no rateable assessment; Held – claimant assessed at 4% permanent impairment due to right shoulder; Medical Assessment Certificate revoked.
Decision date: 3 July 2024 | Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs, and Dr Tania Rogers | Injury module: Lower Limb, Spine, and Upper Limb
Allianz Australia Insurance Limited v Apostolov [2024] NSWPICMP 431
Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a rear end collision; various injuries alleged including psychological condition; considered clinical notes which referred to possibility of post-traumatic stress disorder; original Medical Assessor (MA) assessed that accident caused major depressive disorder with trauma features; MA accepted claimant had no psychological conditions before accident; claimant may also have cognitive disorder; claimant re-examined; Medical Review Panel considered whether accident caused a psychological condition now in remission; clinical expertise of the MA was that the accident did not cause the claimant to suffer a psychological or psychiatric disorder; Held – Medical Assessment Certificate revoked; the accident did not cause the claimant to suffer a non-threshold psychological injury.
Decision date: 3 July 2024 | Panel Members: Member Terence O'Riain, Dr Doron Samuell, and Dr Gerald Chew | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Lepre [2024] NSWPICMP 432
Motor Accident Injuries Act 2017; permanent impairment and earning capacity; T-bone collision; contemporaneous complaints of cervical and lumbar pain; subsequent reference to bilateral shoulder pain probably referred pain from neck rather than shoulder injury; bilateral shoulder injury otherwise not explained by the mechanism of the motor accident; examination by Medical Assessor; no assessable impairment of any body part; claimant operator of business which sells educational product; managerial role; examination findings not supportive of current impairment of earning capacity; nature of soft tissue injuries consistent with a six-month period of impairment of some earning capacity; Held – claimant did not sustain any permanent impairment; claimant suffered partial impairment of earning capacity for a period of six months.
Decision date: 3 July 2024 | Panel Members: Principal Member John Harris, Dr Clive Kenna, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Daniels v Baradine Bowling & Sporting Club Ltd [2024] NSWPICMP 398
The appellant submitted that the Medical Assessor erred with respect to her assessments under four categories of the Psychiatric Impairment Rating Scale, namely self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability; Held – error in the assessment of self-care and personal hygiene, social functioning, and employability; Medical Assessment Certificate revoked.
Decision date: 21 June 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Douglas Anderson | Body system: Psychological/Psychiatric
Paramount Youth Support Services Pty Ltd v Simic [2024] NSWPICMP 433
Claim for lump sum compensation in respect of injury to the cervical spine and both shoulders; employer appealed in relation to the adoption by the Medical Assessor (MA) of the findings of another doctor as the basis for assessment of impairment; Held – MA erred in adopting the other doctor’s findings; worker re-examined; Medical Assessment Certificate revoked.
Decision date: 8 July 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr Alan Home | Body system: Right Upper Extremity, Left Upper Extremity, and Cervical Spine
Ali v Form Group NSW Pty Ltd [2024] NSWPICMP 434
Workplace Injury Management and Workers Compensation Act 1998; fall from scaffolding; Medical Assessor failed to have regard to amended referral and failed to assess some body parts; re-examination; lack of reasoning to explain difference from history in respect of some others; section 323 deduction regarding digestive tract; Held – Medical Assessment Certificate revoked.
Decision date: 8 July 2024 | Panel Members: Member Catherine McDonald, Dr Tim Anderson, and Dr Roger Pillemer | Body system: Cervical Spine, Right Upper Extremity, Scarring, Right Lower Extremity, Upper Digestive Tract, and Lower Digestive Tract
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of 6% whole person impairment for psychological injury; whether errors made in social and recreational activities and social functioning categories of the Psychiatric Impairment Rating Scales; whether section 323 deduction applicable; whether a modification for the effects of treatment should be made; Lancaster v Foxtel Management and Zoric v Secretary, Department of Education considered and applied; Cullen v Woodbrae Holdings Pty Ltd and Craigie v Faircloth & Reynolds Pty Ltd applied;Woolstar Pty Ltd v Lando referred to; the fact that injury pleaded as frank injury ignored; case was treated by parties, experts and MA as disease injury;reasons inadequately explained; matters of fact not fully appreciated as to their recreational nature; reasons for social functioning inadequately explained; Held – Medical Assessor failed to adequately explain her disagreement with unanimous rating from both sides of the record; section 323 deduction not applicable as claimant employed for around 30 years; no treatment effect modification available pursuant to chapter 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition; Medical Assessment Certificate revoked.
Decision date: 8 July 2024 | Panel Members: Member John Wynyard, Professor Nicholas Glozier, and Dr John Baker | Body system: Psychological/Psychiatric
Australian Leisure and Hospitality Group Pty Ltd v Byimira [2024] NSWPICMP 436
Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from psychiatric assessment of 15% whole person impairment; whether Medical Assessor (MA) erred in rating of self-care and hygiene; whether MA erred in rating for social and recreational activities; whether MA had considered all the evidence; whether MA erred in failing to make a deduction pursuant to section 323; the assertion that the MA had not considered the evidence in fact was limited to whether he had adequately considered the employer’s medico-legal expert; employer had to concede that MA considered that expert’s reports; MA’s function discussed; Wingfoot Australia Pty Ltd v Kocak, Jones v Registrar WCC, Bojko v ICM Property Service Pty Ltd applied; presumption of regularity discussed; Held – employer’s reliance on medico-legal expert advice regarding section 323 dismissed as it was based on speculation and without forensic support; Medical Assessment Certificate confirmed.
Decision date: 9 July 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437
Workplace Injury Management and Workers Compensation Act 1998;appeal by claimant against 7% whole person impairment; psychological injury claim; whether error made by irrelevant considerations in social and recreational activities; whether error made in social functioning category due to circumstances involving sons; whether error made regarding application of section 323; reliance on Ballas v Department of Education (State of New South Wales) misplaced; Lancaster v Foxtel Management and Botha v Secretary, NSW Department of Customer Service considered and applied; desktop investigation results not adequately explained; history taken by Medical Assessor (MA) was thorough and more nuanced than others; Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Held – there was no contemporaneous or other support for any causal connection between the work injury and the circumstances regarding the claimant’s son; deduction of ¼ was open to the MA; Medical Assessment Certificate confirmed.
Decision date: 9 July 2024 | Panel Members: Member John Wynyard, Dr John Baker, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Hawes v State of New South Wales (NSW Police Force) [2024] NSWPICMP 438
Appeal from assessment of whole person impairment (psychological); whether Medical Assessor (MA) erred in the assessment of self-care and personal hygiene, social and recreational activities, travel, social functioning or employability under the Psychiatric Impairment Rating Scales; whether MA erred in making a deduction for pre-existing conditions; Held – error identified with respect to the assessment of the employability scale; class 3 impairment is assessed; deduction not available; Medical Assessment Certificate revoked.
Decision date: 9 July 2024 | Panel Members: Member Richard Perrignon, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Tang v Bandsaw Furniture Manufacturing Pty Ltd [2024] NSWPICMP 439
Workplace Injury Management and Workers Compensation Act 1998;assessment of the lumbar spine following an injury; Medical Assessor (MA) made a deduction of one-half pursuant to section 323 for a degenerative condition in circumstances where the worker was asymptomatic and performing heavy work duties when the injury occurred; Held – MA erred in making the deduction in circumstances where there was insufficient evidence as to the actual consequences of the pre-existing condition; worker re-examined; Medical Assessment Certificate revoked.
Decision date: 10 July 2024 | Panel Members: Member Carolyn Rimmer, Dr David Crocker, and Dr Roger Pillemer | Body system: Lumbar Spine
Cabarrus v Sydney Animal Hospitals Norwest [2024] NSWPICMP 440
Workplace Injury Management and Workers Compensation Act 1998; thumb and wrist injury from dog bite; documents omitted from brief but Medical Assessor applied correct criteria; Held – Medical Assessment Certificate confirmed.
Decision date: 10 July 2024 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr Margaret Gibson | Body system: Right Upper Extremity
Motor Accidents Merit Review Decision
Prendergast v QBE Insurance (Australia) Limited [2024] NSWPICMR 15
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings (PAWE); schedule 1 clause 4(1) and (2)(a1); whether weekly payments of statutory benefits are earnings received as an earner for the purpose of PAWE under any of clause 4; Held – the reviewable decision set aside.
Decision date: 10 July 2024 | 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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