Legal Bulletin No. 180
This bulletin was issued on 27 September 2024
Issued 27 September 2024
Welcome to the one hundred and eightieth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Supreme Court Decisions
Middleton v Hyett t/as Phoenix Rising Cafe [2024] NSWSC 1201
Workers Compensation; referral of medical dispute to a medical assessor; claim for injury to right upper extremity (right thumb, right wrist, right elbow) causing complex regional pain syndrome; whether medical dispute included injury to right shoulder and peripheral nerve injuries; whether Appeal Panel mistaken in its understanding of the worker’s claim and the resulting medical dispute; Held – the further amended summons is dismissed with costs.
Decision date: 25 September 2024 | Before: Mitchelmore J
Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200
Workers Compensation; referral of dispute as to degree of whole person impairment to a medical assessor; whether Appeal Panel failed to consider the worker's submissions; whether Appeal Panel erred by considering its own view as to the rating of impairment; deduction for previous injury or pre-existing condition or abnormality; where worker's pre-existing condition was symptomatic before the onset of work-related stressors; whether the Appeal Panel applied the correct test to determine extent of deduction; Held – the matter be remitted to the second defendant for referral to a differently constituted appeal panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined according to law; there be no order as to costs.
Decision date: 25 September 2024 | Before: Mitchelmore J
Presidential Member Decision
Skoko v Charles Sturt University [2024] NSWPICPD 59
Causation; no causal link between stress and aggravation of lower digestive tract condition; fresh evidence on appeal not permitted; academic material without expert assistance not permitted; EMI (Australia) Limited v Bes; Fernandez v Tubemakers of Australia Ltd applied; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; Held – the appeal is dismissed; the Amended Certificate of Determination dated 11 October 2023 is confirmed.
Decision date: 12 September 2024 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
QBE Insurance (Australia) Limited v Hovius [2024] NSWPIC 474
Motor Accident Injuries Act 2017; miscellaneous claim; whether claim suitable for assessment; litigation in Supreme Court; denial of liability; multiple claims; complex legal factual issues; issues of liability; allegation of contributory negligence; multiple dependants; additional potential defendants; need for consistent findings; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as Delegate of the President.
Decision date: 7 August 2024 | Member: Hugh Macken
Insurance Australia Limited t/as NRMA Insurance v Talevski [2024] NSWPIC 475
Motor Accident Injuries Act 2017; miscellaneous claim; whether claim suitable for assessment; complex legal and factual issues; issues of liability including of contributory negligence, fault and causation, and compellability of witnesses; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as Delegate of the President.
Decision date: 12 August 2024 | Member: Hugh Macken
Dameshghi v QBE Insurance (Australia) Limited [2024] NSWPIC 480
Motor Accident Injuries Act 2017; application for discretionary exemption from assessment under section 7.34(1)(b); complex issues relating to liability and multiple non-CTP parties; insurer consents to application to exempt claim from assessment; preliminary assessment of claim; Held – a court hearing is more likely to result in the just, quick and cost-effective resolution of the real issues in dispute between the parties; claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the Delegate of the President.
Decision date: 29 August 2024 | Member: Terence O'Riain
Lukic v AAI Limited t/as AAMI [2024] NSWPIC 502
Motor Accident Injuries Act 2017; assessment of a claim for damages; liability not disputed; physical and psychiatric/psychological injuries; no entitlement to non-economic loss; claim for past and future economic loss; claimant’s credit and reliability in issue; consideration of desktop surveillance reports and accompanying video surveillance; consideration and application of section 4.7; Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks considered and applied; Held – claimant is entitled to damages for past and future economic loss to statutory retirement age; damages assessed accordingly; insurer to pay the claimant’s legal costs and disbursements as agreed or assessed.
Decision date: 11 September 2024 | Member: Anthony Scarcella
Insurance Australia Limited t/as NRMA Insurance v Cox [2024] NSWPIC 503
Motor Accident Injuries Act 2017; settlement approval under section 6.23; left hand injuries; amputation of fingers of the left hand; non-economic loss; partial amputation; limited use of left hand; range of likely assessments of non-economic loss; stabilisation of injuries; Held – settlement approved.
Decision date: 11 September 2024 | Member: Hugh Macken
Insurance Australia Limited t/as NRMA Insurance v Farhat [2024] NSWPIC 504
Motor Accident Injuries Act 2017; proposed settlement; claimant riding a motor bike; liability wholly admitted; claimant seriously injured including spinal cord injury requiring fusion, head injury, pelvic injuries, right leg amputation; claimant had been retired; Held – settlement is just, fair and reasonable; within the likely potential damages assessment taking into account the nature and extent of the claim, the injuries and age of the claimant; accepted as a participant with the Lifetime Care and Support Authority of New South Wales.
Decision date: 11 September 2024 | Member: Elyse White
Mallia v Allianz Australia Insurance Limited [2024] NSWPIC 505
Motor Accident Injuries Act 2017; Personal Injury Commission Act 2020 (PIC Act); dismissal under section 54 of the PIC Act; application for assessment of damages; non-economic loss only head of damages claimed; claimant’s permanent impairment assessed as not greater than 10%; claimant died after proceedings commenced; claimant’s solicitor ceased to act after her death; representative of claimant’s estate has not taken any steps following solicitor ceasing to act; whether proceedings have been abandoned; rule 77 of the Personal Injury Commission Rules 2021 considered; Held – proceedings have been abandoned and have not been prosecuted with due dispatch; Commission not provided with a copy of the grant of probate or letters of administration; proceedings dismissed.
Decision date: 12 September 2024 | Senior Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
BHU v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 506
Workers Compensation Act 1987; claim for weekly compensation and medical expenses in relation to an alleged psychological injury; applicant employed as a sterilisation technician and suffered pre-existing psychological conditions; applicant alleges she suffered a psychological injury by way of either aggravation or a new condition; respondent denied liability and alleged any injury was wholly or predominantly caused by its reasonable actions with regards to discipline under section 11A; degree of any incapacity for employment in issue; Held – applicant suffered a work injury in the nature of her underlying conditions; no evidence of any non-work related matters which caused the worsening of her condition; the actions in relation to discipline relied on by the respondent were not reasonable in the circumstances; the respondent’s contention that the applicant has capacity for employment is not supported by the evidence; respondent ordered to pay the applicant weekly compensation as alleged together with reasonably necessary medical and treatment expenses.
Decision date: 12 September 2024 | Member: Cameron Burge
Hayes v CSR Ltd [2024] NSWPIC 507
Workers Compensation Act 1987; applicant claims weekly compensation payable under sections 36 and 37 resulting from an alleged injury sustained to the right shoulder; the respondent disputes the applicant’s claim; Held – applicant sustained injury to the right shoulder in the course of employment; employment being the main contributing factor to the injury; section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation payable to the applicant resulting from the injury; applicant has had a total incapacity for work resulting from the injury; applicant has entitlement to weekly compensation payable under sections 36 and 37.
Decision date: 12 September 2024 | Member: Jacqueline Snell
Beattie v Home Alloy Truck Bodies Pty Ltd [2024] NSWPIC 508
Workers Compensation Act 1987; psychological injury dispute; respondent argued specific diagnosis had to be found for the applicant to succeed on injury; injury found; dispute under section 11A as to whole or predominant cause of injury and as to whether action taken by employer was reasonable in relation to the provision of employment benefits; respondent bears onus of proof; Held – evidence did not support that the injury was wholly or predominantly caused by the action taken or proposed to be taken in relation to the provision of employment benefits; applicant not precluded from the recovery of compensation for psychological injury because of the provisions of section 11A; claim for lump sum compensation pursuant to s 66 is remitted to the President for referral to a Medical Assessor.
Decision date: 13 September 2024 | Member: Jane Peacock
Allaw v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 509
Workers Compensation Act 1987; accepted claim for lumbar injury; further claims for consequential conditions in the knees and digestive system/anal canal; applicant is required to establish the relationship through a “common sense evaluation” of the causal chain determined on the basis of evidence including expert opinion; Kooragang Cement Pty Ltd v Bates considered; Held – the applicant did not discharge the onus of establishing the consequential condition on the balance of probabilities in respect of the bilateral knee condition; the pleaded case was not adequately supported by lay or expert opinion; finding in favour of the applicant in respect of the digestive system/anal canal after a common sense valuation of the causal chain.
Decision date: 16 September 2024 | Senior Member: Elizabeth Beilby
Gaunt v Swanes Nurseries Australia Pty Ltd [2024] NSWPIC 510
Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit; Haidary v Wandella Pet Foods Pty Ltd; Kaur v Thales Underwater Systems Pty Ltd; Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited considered; Held – claim not duly made until evidence provided that worker’s parents did not claim to be dependent for support on worker so that finding as to dependency could be made; refusal to exercise discretion to award interest on lump sum death benefit; award for respondent in respect of claim for interest.
Decision date: 16 September 2024 | Senior Member: Kerry Haddock
Coulter v Labour Solutions Australia Pty Ltd [2024] NSWPIC 511
Workers Compensation Act 1987; accepted injury to left knee and resultant scarring; whether lumbar spine was injured in a frank incident or was a consequential condition; inconsistent reporting of injury and other possible explanations for applicant’s lumbar spine condition including mechanical injuries post injury which were not disclosed to qualified doctors thereby preventing assessment in fair climate; Held – not satisfied the applicant discharged the onus of proof with regards to claim of injury or consequential condition to the lumbar spine; award for the respondent with respect to the lumbar spine.
Decision date: 16 September 2024 | Member: Diana Benk
Tsiklas v Catering Industries Pty Ltd [2024] NSWPIC 512
Workers Compensation Act 1987; claim for section 60 expenses in respect of left total knee replacement following injury to right knee and lumbar spine; whether consequential condition in the left knee had resolved; Held – treatment is reasonably necessary as a result of the injuries sustained; respondent to pay the costs of medical or related treatment expenses.
Decision date: 16 September 2024 | Member: Carolyn Rimmer
Ellis v Dontarna Pty Ltd [2024] NSWPIC 513
Workers Compensation Act 1987; applicant sustained bilateral shoulder injury and suffered incapacity; a claim for section 66 compensation was made in April 2023; applicant assessed at 23% whole person impairment by Medical Assessor; parties agreed that the injury was deemed pursuant to section 15; whether the date of injury was deemed in October 2019 being the first date of incapacity or the date of claim in April 2023; decision inconsistent with previous decision of SAS Trustee Corporation v O’Keefe; Haddad v The GEO Group Australia Pty Limited applied; Held – applicant’s deemed date of injury was date of first incapacity in October 2019.
Decision date: 17 September 2024 | Principal Member: John Harris
Motor Accidents Medical Review Panel Decisions
Webster v Allianz Australia Insurance Limited [2024] NSWPICMP 638
Motor Accidents Compensation Act 1999; medical dispute as to permanent impairment; claimant was a driver of a car that was stopped waiting to turn right and was hit by another car from behind; Medical Assessment Certificate (MAC) found the claimant’s psychological injuries were not caused by the motor accident and assessment of the degree of permanent impairment of these injuries was not required; AAI Limited trading as GIO v Amos, AAI Limited t/as AAMI Limited v Jacobs, Briggs v IAG Limited Trading as NRMA Insurance, Insurance Australia Group Ltd v Keen, Insurance Australia Ltd v Marsh, and Raina v CIC Allianz Insurance Ltd considered and applied; Held – MAC revoked; Medical Review Panel’s opinion was that the claimant suffers from persistent depressive disorder caused by the subject accident giving rise to 5% whole person impairment; Medical Review Panel noted differing conclusions on causation and diagnoses made by numerous other psychiatrists and psychologists; Medical Review Panel had regard to all the evidence and the range of differing opinions but formed its own opinion on the medical question referred to it by applying its own medical experience and expertise.
Decision date: 11 September 2024 | Panel Members: Member Ray Plibersek, Dr Michael Hong, and Dr Gerald Chew | Injury module: Mental and Behavioural
Allianz Australia Insurance Limited v Gray [2024] NSWPICMP 639
Motor Accident Injuries Act 2017; treatment dispute; review of Medical Assessment Certificate (MAC); relevant dispute related to right shoulder consequential condition and left hip; claimant re-examined; discussion of causation and benefits of treatment; appropriate treatment; meaning of “reasonable and necessary in the circumstances” under section 3.24; Held – accident caused left hip injury but not right shoulder injury; both requiring treatment; MAC revoked.
Decision date: 11 September 2024 | Panel Members: Member Terence O'Riain, Dr Michael Couch, and Dr Shane Moloney | Injury module: Spine, Upper Limb, and Skin
Harris v Allianz Australia Insurance Limited [2024] NSWPICMP 645
Motor Accidents Compensation Act 1999; medical dispute as to permanent impairment; review of Medical Assessment Certificate (MAC); whole person impairment assessed at 9%; claimant was the driver when the insured vehicle struck car on driver’s side; claimant reported experiencing gradually worsening pain in his neck, lower back and both shoulders; no causation issues; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd applied; Held – whole person impairment assessed at 12% for injuries to cervical spine, lumbar spine and left shoulder; MAC revoked.
Decision date: 12 September 2024 | Panel Members: Member Terence O’Riain, Dr Michael Couch, and Dr Clive Kenna | Injury module: Spine, Upper Limb, and Lower Limb
Eskandar v CIC Allianz Insurance Limited [2024] NSWPICMP 648
Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident when her vehicle was rear-ended by the insured vehicle; dispute about the assessment of permanent impairment to the cervical spine, thoracic spine, lumbar spine, right shoulder and left shoulder; claimant re-examined by Medical Review Panel; Held – whole person impairment for all injuries was found to be 0%; Medical Assessment Certificate revoked and replacement certificate issued.
Decision date: 12 September 2024 | Panel Members: Member Maurice Castagnet, Dr David Gorman, and Dr Michael Couch | Injury module: Spine and Upper Limb
QBE Insurance (Australia) Limited v Tucker [2024] NSWPICMP 654
Motor Accident Injuries Act 2017; medical dispute as to whether psychological injury sustained is a threshold injury; considered the claimant’s history, clinical findings on examination, reports of treating practitioners and the DSM-5-TR diagnostic manual; Held – Medical Review Panel determined that the diagnosis of post-traumatic stress disorder was a non-threshold injury; Medical Assessment Certificate confirmed.
Decision date: 16 September 2024 | Panel Members: Member Terence Stern OAM, Dr John Baker, and Dr Christopher Rickard-Bell | Injury module: Mental and Behavioural
Pan v QBE Insurance (Australia) Limited [2024] NSWPICMP 655
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; claimant alleged psychological injuries arising from the death of her husband who was a pedestrian struck by the insured vehicle; claimant was walking beside her husband at the time; Held – claimant suffered post-traumatic stress disorder giving rise to whole person impairment of 17%; MAC revoked.
Decision date: 16 September 2024 | Panel Members: Elizabeth Medland, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural
Sims v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 657
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) which found that the claimant’s acute stress disorder was a threshold injury; claimant was driving several disabled passengers one of whom did not survive the accident; significant psychiatric history pre-accident; suffered from major depressive disorder and generalised anxiety disorder (GAD) which waxed and waned; following the accident the claimant developed post-traumatic stress disorder; Lynch v AAI Ltd applied; AAI Ltd v Hoblos, and Todev v AAI Limited t/as GIO considered; Held – Medical Review Panel found that the claimant had pre-existing GAD and was receiving benzodiazepine treatment and psychological treatment or counselling not long before the subject accident; the Medical Review Panel was satisfied that after the accident the claimant suffered an aggravation of his GAD and had suffered a non-threshold injury; MAC revoked.
Decision date: 17 September 2024 | Panel Members: Member Alexander Bolton, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Workplace Injury Management and Workers Compensation Act 1998; both parties appealed; employer appealed the Medical Assessment Certificate (MAC) in respect of the assessment of self care and personal hygiene; injured worker appealed the category of social and recreational activities and sought to rely on fresh evidence being a further statement by him; Petrovic v BC Serv No 14 Pty Limited and Ors, and State of New South Wales v Aliconsidered and applied; Held – the Medical Appeal Panel found error by the Medical Assessor (MA) in respect of the assessment of self care and personal hygiene based on the evidence; the Appeal Panel rejected the worker’s evidence in line with the authorities and found no error by the MA; MAC revoked.
Decision date: 11 September 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Manzoupo v Arrow ECS Australia Pty Ltd [2024] NSWPICMP 641
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appeal by injured worker against maximum medical improvement (MMI) assessment; whether Medical Assessor (MA) gave any reasons; whether MA’s function is compromised by considering causation; Held – Medical Assessment Certificate revoked; no reasons given for MMI finding; suggested reasons advanced by respondent were speculative; MA’s consideration of causation demonstrated lack of understanding of a MA’s function and may have diverted attention from the relevant issues; claimant re-examined and assessed at 7% whole person impairment.
Decision date: 11 September 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Bull ‘N’ Bush Nurseries Pty Ltd v Klement [2024] NSWPICMP 642
Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of permanent impairment in the respondent’s left shoulder and left wrist; claimed that the medical dispute between the parties did not include such assessments and the appellant had not accepted liability in relation to injuries to the respondent’s left shoulder and left wrist; demonstrable error alleged; Klement v Bull ‘N’ Bush Nurseries Pty Limited, Skates v Hills Industries Limited, Shankar v Ceva Logistics (Australia) Pty Limited, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, and Campbelltown City Council v Vegan considered; Held – no error found; factual findings made that assessments of the respondent’s left shoulder and left wrist impairment did form part of the dispute; the appellant had a number of opportunities to dispute liability for the respondent’s left shoulder and left wrist injuries but had not done so prior to the issuing of the Medical Assessment Certificate (MAC); Medical Assessor no longer prohibited from assessing impairments whilst there were outstanding issues of liability following amendments made to section 293; MAC confirmed.
Decision date: 11 September 2024 | Panel Members: Member Gaius Whiffin, Dr Brian Stephenson, and Dr Mark Burns | Body system: Cervical Spine, Left Upper Extremity, and Scarring
Kasim v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPICMP 649
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appeal against the assessments of self care and personal hygiene, concentration, persistence and pace, and employability under the psychiatric impairment rating scale (PIRS); assessments allegedly made on the basis of incorrect criteria and contained demonstrable error; Held – error found in the assessment of employability; Medical Assessment Certificate revoked.
Decision date: 12 September 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Remondis Australia Pty Ltd v Griffiths [2024] NSWPICMP 650
Workplace Injury Management and Workers Compensation Act 1998; section 323; Medical Assessor made no deduction; worker had previous history of back pain including fusion; pre-existing condition asymptomatic at time of work injury but had been symptomatic at various times for many years;scarring claimed but not referred for assessment; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (inl liq), and Ryder v Sundance Bakehouse considered; Vitaz v Westform (NSW) Pty Limited applied; Held – Medical Assessment Certificate revoked; deduction made; commentary as to scarring.
Decision date: 12 September 2024 | Panel Members: Member Parnel McAdam, Dr James Bodel, and Dr Alan Home | Body system: Lumbar Spine
Montivero v Anowah Community Living Ltd [2024] NSWPICMP 651
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) provided adequate reasons for rating appellant’s impairment in social and recreational activities, concentration, persistence and pace and employability under the permanent impairment rating scale (PIRS); whether MA’s ratings under PIRS accorded with the evidence; whether MA took into account irrelevant considerations and failed to take into account relevant considerations; Held – MA erred in rating the appellant’s impairment in social and recreational activities, concentration, persistence and pace and employability under the PIRS; Medical Assessment Certificate revoked.
Decision date: 12 September 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Holden v Wydarigah Pty Ltd [2024] NSWPICMP 652
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred in rating the appellant’s impairment in self care and personal hygiene, travel, social functioning and employability under the permanent impairment rating scale (PIRS); Held – Medical Appeal Panel found that the MA erred in rating the appellant’s impairment in PIRS categories that were challenged as his ratings did not accord with the history he obtained or the evidence ; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 13 September 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Tagg v Partelle Racing Pty Ltd [2024] NSWPICMP 653
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by concluding that the appellant’s injury that was the subject of the medical disputes referred to him to assess was a secondary psychological injury; whether MA erred by not assessing the degree of permanent impairment of the appellant from her injury; Held – Medical Appeal Panel found that it was not open to the MA to conclude that the referred injury was a secondary psychological injury; the MA erred by not assessing the degree of permanent impairment of the appellant from her psychological injury; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 13 September 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Anbardan v Telstra Business Technology Centre [2024] NSWPICMP 656
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment was made on the basis of incorrect criteria and demonstrable error under three of the psychiatric impairment rating scale (PIRS) categories of self care and personal hygiene, concentration, persistence and pace, and travel; Held – Medical Appeal Panel found error in the ratings for self-care and personal hygiene, and travel; a re-examination was considered necessary; Medical Assessment Certificate revoked.
Decision date: 16 September 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Green v State of New South Wales (Nepean Blue Mountains Local Health District) [2024] NSWPICMP 658
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of 10% whole person impairment (WPI) for psychological injury; whether psychiatric impairment rating scale (PIRS) categories of self care and personal hygiene, and social and recreational activities had been erroneously assessed; whether evidence contained in submissions is admissible; whether Oraha v Settlement Service International is applicable; Shi v Transpace Pty Ltd & Ors, Wingfoot Australia Pty Ltd v Kocak, and Botha v Secretary, NSW Department of Customer Service applied; Held – evidence contained in submissions is inadmissible; procedural fairness considered; self care and personal hygiene PIRS rating confirmed; social and recreational activities PIRS rating erroneously assessed; respondent’s reliance on clinical notes approached with caution; Medical Assessment Certificate revoked; 19% WPI assessed.
Decision date: 17 September 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Cairns v SAE Group Pty Ltd [2024] NSWPICMP 659
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; application to rely on statement from worker’s wife describing greater impairment than worker’s history to Medical Assessor; no previous statement obtained; terms of referral required apportionment between primary and secondary psychological injuries; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Zoric v Secretary, Department of Education, and State of New South Wales v Ali considered; Held – Medical Appeal Panel declined to admit the worker’s wife’s statement; Medical Assessment Certificate confirmed.
Decision date: 17 September 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Youth Off The Streets Ltd v Gardiner [2024] NSWPICMP 660
Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) properly applied section 323; no deduction made; Held – MA failed to assess left lower extremity as a separate body part but had considered it as part of assessment of radiculopathy; re-examination required; radiculopathy present; no assessable impairment of left lower extremity; evidence of a pre-existing condition contributing to impairment; Medical Assessment Certificate revoked.
Decision date: 17 September 2024 | Panel Members: Member Parnel McAdam, Dr David Crocker, and Dr Drew Dixon | Body system: Lumbar Spine, Left Lower Extremity, and Skin
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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