Legal Bulletin No. 147
This bulletin was issued on 9 February 2024
Issued 9 February 2024
Welcome to the one hundred and forty seventh 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 Decision
Secretary, Department of Communities and Justice v Taane & Ors [2024] NSWSC 54
Administrative law; workers compensation; judicial review of Medical Appeal Panel; where Appeal Panel confirmed medical assessment certificate determining worker’s whole person impairment at 17%; whether Appeal Panel erred in assessment of deduction in whole person impairment owing to pre-existing condition; Held – summons dismissed.
Decision date: 6 February 2024 | Before: Chen J
Presidential Member Decision
Workers compensation; employment; intention to create a legal relationship; Secretary, Department of Family and Community Services v Bee applied; substantial contributing factor; section 9A of the Workers Compensation Act 1987 (the 1987 Act); Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited applied; calculation of pre-injury average weekly earnings for “short term” workers; clauses 4, 6 and 7 of Schedule 3 to the 1987 Act and reg 8F of the Workers Compensation Regulation 2016; section 145 of the 1987 Act; onus of proof in respect of an employer’s liability to reimburse the Workers Compensation Nominal Insurer; Raniere Holdings Pty Ltd v Daley; acceptance and rejection of evidence; Devries v Australian National Railways Commission; Jackson v McDonald’s Australia Ltd applied; Held – the Principal Member’s Certificate of Determination dated 22 December 2022 is confirmed.
Decision date: 29 January 2024 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decision
Allianz Australia Insurance Limited v Walters [2024] NSWPIC 40
Motor Accident Injuries Act 2017; 31-year-old motorcyclist injured in a collision with insured motor vehicle; sustained an undisplaced intraarticular fracture of the left distal radius; absent from his employment for a period of 22 weeks and thereafter, returned to full time duties but does experience some discomfort and aching in the arm after prolonged activities during a working day; insurer conceded claimant had sustained a non-threshold injury; liability admitted; claimant is employed as a photographer and hospitality worker; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).
Decision date: 1 February 2024 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
McCann v Arch-System Fabrication Pty Ltd [2024] NSWPIC 31
Workers Compensation Act 1987; claim for medical expenses for treatment of consequential condition of sleep disorder as result of accepted injury to lumbar spine; respondent disputed that the applicant had sustained consequential condition of sleep disorder; consideration of Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, State of NSW v Bishop, and Kumar v Royal Comfort Bedding Pty Ltd; applicant sustained consequential condition of sleep disorder as result of injury to lumbar spine; Held – award for applicant pursuant to section 60 in respect of consequential condition of sleep disorder.
Decision date: 25 January 2024 | Senior Member: Kerry Haddock
Kelleher v Mortimer Products Pty Ltd [2024] NSWPIC 32
Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 in respect of accepted psychological injury; respondent sought Directions for Production of clinical records of treatment provider in respect of pre-existing psychological condition, to be included in documents to be provided to Medical Assessor in determination of whole person impairment; applicant objected, including on grounds that the application for Directions for Production was a ‘fishing expedition’ and that it was prohibited by Rule 47(1)(a)(iii) of the Personal Injury Commission Rules 2021 (Rules); Held – application for Directions for Production did not constitute a ‘fishing expedition’; not satisfied that a special case exists for the issue of the Directions pursuant to Rule 47(2)(a)(iii) of the Rules; application for Directions for Production refused.
Decision date: 29 January 2024 | Member: Karen Garner
Rao v Warrumbungle Shire Council [2024] NSWPIC 33
Workers Compensation Act 1987; calculation of weekly benefits (pre-injury average weekly earnings) with reference to schedule 3, cl 2 and regulation 8C of the Workers Compensation Regulation 2016; Held – the applicant did experience ‘a change of an ongoing nature’ to the employment arrangement resulting in a financially material change to the earnings and on that basis, income earned prior to that change is to be excluded from the calculation of pre-injury average weekly earnings.
Decision date: 29 January 2024 | Member: Diana Benk
Symons v Jaybro Group Pty Ltd [2024] NSWPIC 34
Workers Compensation Act 1987; psychological injury; claim for weekly compensation; causation; whether injury the result of discipline and/or retrenchment; section 11A; Held – the respondent has not satisfied its onus; the definition of discipline in Kushwaha v Queanbeyan City Council also not relevant in the circumstances of this case; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37.
Decision date: 29 January 2024 | Member: Diana Benk
Moorby v J & D Stephens Pty Ltd & Ors [2024] NSWPIC 36
Workers Compensation Act 1987; injury to the lumbar spine, neck, both shoulders, both elbows, both wrists, both knees and both ankles as the result of the nature and conditions of the applicants employment as a shearer and/or shedhand; dispute as to who was the last employer for the purposes of section 16(1)(b); claim for permanent impairment compensation pursuant to section 66, weekly compensation pursuant to sections 36 and 37 and medical and treatment expenses pursuant to section 60; Taylor v J & D Stephens Pty Ltd, Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd, Perry v Tanine Pty Ltd t/as Ermington Hotel, Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office, AV v AW, Ariton Mitic v Rail Corporation of NSW considered and applied; Held – award for the third respondent; that the applicant sustained injury on 14 December 2017 (deemed) to his lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists in the course of his employment as a shearer with the applicant’s employment as a shearer being the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of a disease(s) of the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists; pursuant to section 16(1)(b) the first respondent, being the employer who last employed the applicant as a shearer, to be liable for any compensation payable; the applicant had no current work capacity from 15 December 2017 to 1 April 2018, from 19 May 2018 to 20 August 2018, and from 17 April 2019 to 2 December 2019; the applicant had pre-injury average weekly earnings for the 12 months to 14 December 2017 of $890.
Decision date: 30 January 2024 | Member: John Turner
Jabihullah v HAQ Transport Pty Ltd [2024] NSWPIC 37
Workers Compensation Act 1987; claim for inter alia cervical spine injury; claim for lump sum compensation pursuant to section 66; applicant already assessed by Medical Assessor, and Medical Assessment Certificate (MAC) issued; Certificate of Determination (COD) subsequently issued; applicant applying for COD to be reconsidered and rescinded; applicant undertaken cervical spine surgery since issuing of MAC; consideration of applicant’s statements and medical evidence obtained both prior to and subsequent to the issuing of the MAC; consideration of whether the Commission should exercise its discretion (pursuant to section 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act)) to reconsider the COD , if so, what orders should the Commission make; Samuel v Sebel Furniture Limited, Valesini v Star Track Express Pty Limited, Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors, Bessant v Newcastle Caravan City, Railcorp NSW v Registrar of the WCC of NSW considered; Held – in the exercise of its discretion pursuant to section 57(1) of the 2020 Act, the Commission reconsiders the COD and rescinds it; applicant’s claim remitted to the President in order for him to determine whether the claim is to be referred for further assessment as an alternative to an appeal against the MAC, as provided for by section 329 of the Workplace Injury Management and Workers Compensation Act 1998.
Decision date: 30 January 2024 | Member: Gaius Whiffin
Nacol v Kmart Australia Ltd [2024] NSWPIC 39
Claim for permanent impairment compensation; liability for injury to right elbow accepted; respondent disputed that the applicant had complex regional pain syndrome as a result of injury to right elbow and that she had sustained injury to cervical spine; no history until applicant’s statement in September 2023 that applicant jerked her neck when she bumped her right elbow in December 2020; no history obtained by any treating medical practitioner or independent medical examiner that applicant jerked her neck when she bumped her right elbow; applicant observed under surveillance to undertake activities inconsistent with her complaints; applicant explained inconsistencies as due to her taking opiates obtained using friends’ prescriptions and from her doctor uncle overseas; applicant’s credit in issue; consideration of Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes; Held – award for the respondent with respect to claim for injury to cervical spine; matter remitted to President for referral to Medical Assessor for assessment of right upper extremity and complex regional pain syndrome.
Decision date: 31 January 2024 | Senior Member: Kerry Haddock
Motor Accidents Medical Review Panel Decision
Sardi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 33
Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 18 July 2019 in rear end collision; various injuries sustained including exacerbation of lumbar spine condition; Panel not satisfied that claimant had pre-existing radiculopathy from the lumbar spine; claimant had two objective signs of radiculopathy when examined by Dr Darwish in February 2020 in the L5 dermatome; David v Allianz Australia Ltd adopted that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act; claimant subsequently underwent surgery; no utility in a medical examination; other injuries threshold or not established; Held – medical assessment revoked; claimant suffered non-threshold injury to the cervical spine.
Decision date: 24 January 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Adeline Hodgkinson | Injury module: Spine, Upper Limb, Lower Limb and Nervous System (Neurological)
Workers Compensation Medical Appeal Panel Decisions
Krasny v Liverpool Plains Shire Council [2024] NSWPICMP 34
Workplace Injury Management and Workers Compensation Act 1998; worker sustained psychological injury; Medical Assessor (MA) assessed 7% whole person impairment (WPI) and issued Medical Assessment Certificate (MAC) on 2 August 2023; the worker lodged an appeal on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; the employer lodged an appeal on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; the Appeal Panel considered that the MA had erred in assessment of Psychiatric Impairment Rating Scale category “social and recreational activities” and the inclusion of matters in “social functioning”; therefore, error had been established; it was considered necessary for the worker to undergo a re-examination by a MA of the Appeal Panel; MA of the Appeal Panel found that the MA had erred in assessment of “social and recreational activities”; there was no deduction pursuant to section 323; the MA of the Appeal Panel assessed 7% WPI, which was the same as the assessment of the Medical Assessor, notwithstanding that the employer’s appeal regarding “social and recreational activities” was upheld; Held – MAC dated 3 August 2023 confirmed.
Decision date: 24 January 2024 | Panel Members: Senior Member Kerry Haddock, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Hall v Lindsay Brothers Management Pty Ltd [2024] NSWPICMP 36
Workplace Injury Management and Workers Compensation Act 1998; claim for impairment of the lumbar spine and digestive system following injury to lumbar spine on 4 October 2018; worker appealed deduction of one half under section 323 made in respect of the digestive system; Panel satisfied that Medical Assessor erred in not considering symptoms of the pre-existing condition at time of injury and following bariatric surgery; Held – Medical Assessment Certificate revoked.
Decision date: 25 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Neil Berry, and Dr Mark Burns | Body system: Spine and Digestive System
Nestle Australia Ltd v Santimano [2024] NSWPICMP 37
Psychological injury; uplift for treatment effect inappropriate; Psychiatric Impairment Rating Scale category of self-care and personal hygiene; Ferguson v State of New South Wales and Parker v Select Civil considered; Held – Medical Assessment Certificate revoked.
Decision date: 29 January 2024 | Panel Members: Member Catherine McDonald, Dr Nicholas Glozier, Dr Michael Hong | Body system: Psychological/Psychiatric
Electrical Home Aids Pty Ltd v Kumar [2024] NSWPICMP 38
Claim for loss of impairment resulting from a primary psychological injury; employer appealed the Psychiatric Impairment Rating Scale categories of social and recreational activities, concentration, persistence and pace and employability; Medical Assessor erred in assessment of concentration, persistence and pace; no error in assessment of social and recreational activities and employability; worker re-examined and assessed as class 2 for concentration, persistence and pace; Held – Medical Assessment Certificate revoked.
Decision date: 29 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
HVTC Pty Ltd v Murgovski [2024] NSWPICMP 39
Whether Medical Assessor (MA) applied incorrect criteria and erred when assessing permanent impairment of the respondent’s lumbar spine, thoracic spine and right upper extremity; whether MA provided adequate reasons for his assessment of the respondent’s permanent impairment relating to his thoracic spine; Appeal Panel held MA erred in his assessment of the respondent’s permanent impairment with respect to all body parts; respondent re-examined; based on the findings from that re-examination Appeal Panel assessed the degree of the respondent’s permanent impairment from his injury was the same as that which the MA assessed it was; Held – Medical Assessment Certificate upheld.
Decision date: 29 January 2024 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Tommasino Mastroianni | Body system: Spine and Right Upper Extremity
Knezevic v Precision Valve Australia Pty Ltd [2024] NSWPICMP 40
Appeal from assessment of whole person impairment; whether assessor erred in assessing the Psychiatric Impairment Rating Scale category of self-care and personal hygiene or social and recreational activities; Held – Medical Assessment Certificate confirmed.
Decision date: 29 January 2024 | Panel Members: Member R J Perrignon, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
MH Management (NSW) Pty Ltd v Taylor [2024] NSWPICMP 41
Appeal in respect of assessment of right upper extremity and right lower extremity on basis Medical Assessor (MA) erred and applied incorrect criteria in assessing right wrist by comparison to amputation of right arm below the shoulder and left lower extremity by use of ankylosis; MA erred in using amputation as a method of assessment of right wrist and failed to explain adequately why ankylosis was an appropriate method for assessment of foot; worker re-examined; Held – Medical Assessment Certificate revoked.
Decision date: 29 January 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr Roger Pillemer | Body system: Left and Right Upper and Lower Extremity
Ventia Australia Pty Ltd v Mawson [2024] NSWPICMP 42
Workplace Injury Management and Workers Compensation Act 1998; noise-induced hearing loss; agreed deemed date of injury before last date of noisy employment; deduction sought for loss in subsequent employment; Schofield v Abigroup Limited distinguished; Rico v Roads and Traffic Authority and OneSteel Limited v Devine discussed; section 323 deduction for noisy employment overseas; Pereira v Siemens Limited discussed; Held – Medical Assessment Certificate revoked.
Decision date: 30 January 2024 | Panel Members: Member Catherine McDonald, Dr Henley Harrison, and Dr Thandavan Raj | Body system: Hearing
Motor Accidents Merit Review Decision
Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 3
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-injury average weekly earnings; schedule 1, clause 4; schedule 1, clause 4(2)(a), earn continuously; evidence; onus of proof; earnings from undocumented employment arrangement; earnings received on cash in hand basis; Held – the reviewable decision is set aside.
Decision date: 30 January 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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