Legal Bulletin No. 149
This bulletin was issued on 23 February 2024
Issued 23 February 2024
Welcome to the one hundred and forty ninth 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.
Court of Appeal Decision
Scone Race Club Ltd v Cottom [2024] NSWCA 34
Administrative law; judicial review; jurisdictional error; extent of functions and powers of tribunal; Personal Injury Commission medical appeal panel; whether appropriate consideration given to late documents; no opportunity given to address panel regarding late documents; whether late documents could materially affect decision; workers compensation; medical dispute; extent of whole person impairment; appeal from certificate of medical assessor; scope of functions and powers of medical appeal panel; panel restricted to determining appeal on indicated grounds of appeal; panel restricted to reviewing injury the subject of referral to the medical assessor; Held – leave to appeal from the judgment in the Common Law Division of 6 July 2023; allow the appeal and set aside orders 2 and 3, and the order as to costs, made in the Division; dismiss Mr Cottom’s second amended summons filed 2 November 2022.
Decision date: 22 February 2024 | Before: Gleeson JA, Mitchelmore JA, Basten AJA
Supreme Court Decisions
Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102
Workers compensation; medical assessment; Appeal against Medical Assessment Certificate; whether Appeal Panel merely conducted a preliminary review and failed to determine the appeal; whether the Panel’s failure to re-examine the plaintiff despite her request constitutes reviewable error; administrative law; whether reviewable error of law; review of finding of fact; where some probative evidence to support finding; Held – the amended summons is dismissed, with costs.
Decision date: 15 February 2024 | Before: Griffiths AJ
Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131
Administrative law; workers compensation; judicial review of Medical Appeal Panel; where medical assessor failed to consider clause 1.32 of the NSW workers compensation guidelines for the evaluation of permanent impairment; where Appeal Panel found that medical assessor had erred in failing to consider clause 1.32 but not in failing to make an allowance for treatment; whether Appeal Panel failed to apply, or failed to correctly apply cl 1.32 when determining plaintiff’s WPI; whether Appeal Panel failed to give adequate reasons; Held – order in the nature of certiorari moving into this Court and quashing the certificate issued by the third defendants, constituting a Medical Appeal Panel of the second defendant, dated 24 May 2023; matter remitted to the second defendant to be determined according to law.
Decision date: 21 February 2024 | Before: Chen J
Insurance Australia Limited (trading as NRMA) v James Hulse [2024] NSWSC 142
Judicial review; Serious driving offence; Proceedings discontinued; Statutory interpretation; Historical fact of a charge; Revocation of statutory benefits; Held – decision of the Member dated 14 December 2022 is set aside; the proceedings are remitted to the President, Personal Injury Commission to be dealt with according to law.
Decision date: 22 February 2024 | Before: Harrison AsJ
Presidential Member Decisions
Corestaff Australia NSW Pty Ltd v Lashbrook [2024] NSWPICPD 9
Workers compensation; it is not always necessary to precisely identify the pathological nature of the injury; Kennedy Cleaning Services Pty Ltd v Petkoska; Military Rehabilitation and Compensation Commission v May discussed; a delay in report of symptoms is not generally of itself determinative; Taylor v J & D Stephens Pty Ltd; appeal from a factual determination; Whiteley Muir & Zwanenberg Ltd v Kerr; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd discussed and applied; Held – leave to appeal the Member’s decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted; the Member’s Certificate of Determination dated 17 March 2023 is confirmed.
Decision date: 9 February 2024 | Before: Deputy President Elizabeth Wood
BHK v Secretary, Department of Education [2024] NSWPICPD 10
Workers compensation; psychological injury; section 11A of the Workers Compensation Act 1987; action taken by an employer in respect of discipline held to be reasonable action; Northern NSW Local Health Network v Heggie considered; Held – the Certificate of Determination dated 17 April 2023 is confirmed.
Decision date: 15 February 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Baker v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 46
Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; section 3.28; where the claimant’s evidence was that she was struck on the left passenger side of her vehicle by the insured vehicle travelling behind her in the same direction while making a left-hand-hand turn into a driveway entrance; where the insured driver’s evidence was that the claimant’s vehicle made a right-hand turn in front of the insured driver’s vehicle from the opposite direction; conflicting evidence clarified by oral evidence of the claimant and the insured driver at assessment conference; Held – claimant not wholly or mostly at fault.
Decision date: 23 January 2024| Member: Maurice Castagnet
Manchinella v Allianz Australia Insurance Limited [2024] NSWPIC 35
Motor Accident Injuries Act 2017; claimant involved in an accident whilst attempting to enter a taxi; the claimant injured his neck, lumber spine, groins and wrists; independent whole person impairment assessment not greater than 10%; proposed settlement includes past and future economic loss and superannuation; insurer able to negotiate workers compensation payback; claimant paid substantial past economic loss; claimant returned to fulltime work; proposed settlement will net the claimant $130,066.80 with entitlement to access CTP care for future treatment; Held – the proposed settlement is approved under section 6.23 (2)(b); proposed settlement complies with clause 7.38 of the Motor Accident Injuries Guidelines 2017.
Decision date: 30 January 2024 | Member: Elyse White
Insurance Australia Limited t/as NRMA Insurance v Burgun [2024] NSWPIC 59
Motor Accident Injuries Act 2017; 51 year old motorcyclist injured in a collision with insured motor vehicle at an intersection; sustained soft tissue injuries to right elbow, left shoulder and cervical spine, as well as psychological injury being post-traumatic stress disorder; claimant is a pensioner; sustained a non-threshold injury and assessed as having a whole person impairment of 12% in relation to psychological injuries; liability admitted; entitlement to damages for non-economic loss; no claim for past and future economic loss insurer proposed damages for non-economic loss in the sum of $240,000; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).
Decision date: 14 February 2024 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Moyes v CASPA Services Ltd [2024] NSWPIC 30v
Workers Compensation Act 1987; claim for permanent impairment benefits pursuant to section 66; respondent served a Notice for Production on applicant requiring production of applicant’s bank records and passport; applicant objected to the Notice for Production; whether applicant required to comply with a Notice for Production requiring production of applicant’s bank records and passport; whether Notice for Production should be set aside; Held – the Notice for Production is wholly set aside pursuant to rule 41(5)(a) of the Personal Injury Commission Rules 2021; matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
Decision date: 25 January 2024 | Member: Karen Garner
Jacob v State of NSW (St George Hospital) [2024] NSWPIC 48
Workers Compensation Act 1987; claim for weekly compensation pursuant to section in respect of accepted psychological injury; applicant and representative failed to attend preliminary conference; previous preliminary conference had been adjourned at applicant’s request; whether proceedings should be struck out for want of prosecution; Held – matter cannot be finalised in a timely fashion due to the applicant’s unavailability to proceed; proceedings dismissed for failing to prosecute the claim with due despatch.
Decision date: 8 February 2024 | Member: Karen Garner
Chiha v State of New South Wales (Western Sydney Local Health District) [2024] NSWPIC 49
Workers Compensation Act 1987; claim for weekly benefits in respect of alleged psychological injury; injury disputed and in alternative, if injury is present, the respondent alleges it was brought about by its reasonable actions in relation to discipline, dismissal and/ or provision of employment benefits; the degree of any incapacity is also in issue; the applicant alleges she suffered psychological injury arising from lack of communication and uncertainty surrounding her COVID-19 vaccine status; Held – the applicant suffered a psychological injury in the course of her employment; the defence pursuant to section 11A is not made out; as a result of the injury, the applicant was for a time totally incapacitated and has, since January 2023 been partially incapacitated; respondent to pay the applicant weekly compensation.
Decision date: 8 February 2024 | Member: Cameron Burge
Gorlicki v Patrick Stevedores Holdings Pty Ltd & Ors [2024] NSWPIC 50
Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to the left shoulder, including the cost of surgery which the applicant has already undergone on the left shoulder; dispute as to whether there was a frank injury within section 4(a) or a disease injury pursuant to section 4 (b)(ii); reference to Australian Conveyor Engineering P/L v Mecha Engineering P/L and Rail Services v Dimovski and Anor; whether work provided to the worker was a ‘made up job’ in determining if the worker had no current work capacity; reference to Popal v Myer Holdings P/L; Held – the worker sustained a disease injury pursuant to section 4(b)(ii); the worker has had no current work capacity since weekly payments were terminated; the treatment of the left shoulder, including surgery performed on the left shoulder, is reasonably necessary as a result of the work injury.
Decision date: 9 February 2024 | Member: John Isaksen
Laney v Australian Turf Club Limited [2024] NSWPIC 51
Workers Compensation Act 1987; disputed injury to left knee and declinature of proposed total left knee replacement surgery in circumstances where applicant had prior degenerative changes in the knee; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd and Murphy v Allity Management Services applied; Held – the applicant has sustained an injury to his left knee pursuant to section 4(a) in the course of employment with the respondent; proposed total left knee replacement surgery is reasonably necessary treatment; respondent is to pay the costs of the proposed surgery and ancillary treatment.
Decision date: 9 February 2024 | Principal Member: Josephine Bamber
Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPIC 52
Claim for permanent impairment compensation for injury and consequential conditions to left upper extremity; nature of the claimed injury; whether in the nature of a disease process or a series of micro traumata; respondent denies liability on grounds injury is in the nature of a disease process, and that there was a subsequent employer whose employment to the nature of which an aggravation of the disease was due or which was a substantial contributing factor to an aggravation to the disease injury; Held – on balance, the injury is a disease of gradual process; the evidence discloses the applicant’s subsequent employment was a substantial contributing factor to an aggravation of the disease injury, and accordingly compensation is not payable by the respondent in these proceedings; award for the respondent.
Decision date: 9 February 2024 | Member: Cameron Burge
BPR v Liscul Construction Pty Ltd (de-registered) & Ors [2024] NSWPIC 53
Workers Compensation Act 1987; application for lump sum death benefit; parties to be de-identified; parties were able to propose Consent Orders so far as apportionment of the lump sum benefit pursuant to section 25(1)(a) was concerned together with interest; proposed apportionment assessed as appropriate by the Senior Member; Senior Member made findings that no other person could be considered dependant at the relevant time; TNT Group 4 Pty Ltd v Halioris applied; Held – orders made in accordance with proposed Consent Orders.
Decision date: 9 February 2024 | Senior Member: Elizabeth Beilby
Watts v State of New South Wales (NSW Police Force) [2024] NSWPIC 54
Workers Compensation Act 1987; feedback and criticism from the applicant’s sergeant; whether they were merit based or bullying not determined; the breadth of the definition of appraisal and discipline considered; section 11A(1); Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence.
Decision date: 9 February 2024 | Member: Lea Drake
McKee v Wizpro Pty Ltd [2024] NSWPIC 55
Workers Compensation Act 1987; claim for weekly compensation and section 60 expenses following motor vehicle accident whilst applicant driving in the course of his employment as a truck driver; whether employment a substantial contributing factor where accident had occurred after applicant suffered a syncope at the wheel; whether quantum of weekly payments should be reduced due to post-injury involvement with Army Reserve; Held – whilst cause of syncope not identified, the additional factors of the applicant’s travelling 100km/h in a Mack Metro-Liner in the course of his employment were also substantial contributing factors; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd considered and applied; evidence as to post injuries earnings was not probative of an ability to perform suitable duties; section 32A and Wollongong Nursing Home v Dewar considered and applied; award applicant as being without current work capacity.
Decision date: 12 February 2024 | Member: John Wynyard
Ivanovic v Mullungeen Pty Ltd [2024] NSWPIC 56
Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 for a primary psychological injury; common ground that worker suffers from a somatic symptom disorder, a secondary psychological injury, and a major depressive disorder; worker argues that the latter condition is a primary psychological injury; employer argues that as it came on several months after the injurious incident in response to severe pain and disability it is also a secondary psychological injury and is not compensable by reason of section 65(2); Romanous Constructions Pty Limited v Arsenovic and JB Metropolitan Distributors Pty Limited v Kitanoski considered; Held – that the major depressive disorder caused by both reaction to the injurious event and by reaction to pain and disability.
Decision date: 12 February 2024 | Member: Paul Sweeney
Gould v Westpac Banking Corporation [2024] NSWPIC 57
The causal connection between an incident in the employ the respondent in March 2016 and the present need for a total right shoulder replacement; The involvement of a rotator cuff injury and underlying osteoarthritis; had the effect of the rotator cuff injury resolved; was the present cause of the need for surgery the applicant’s unrelated osteoarthritis; Held – conclusion that the applicants osteoarthritis had been aggravated by the workplace incident and the incident has materially contributed to her need for surgery.
Decision date: 13 February 2024 | Member: Lea Drake
Littlewood v Mario Tascone & Jenny Truong [2024] NSWPIC 61
Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to lumbar spine, with a deemed date of injury of 31 January 2017; whether the applicant sustained a consequential condition of the digestive system; Held – the applicant sustained a consequential condition of the digestive system, as a result the accepted injury to the lumbar spine; the matter be remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment of both the lumbar spine and the digestive system.
Decision date: 14 February 2024 | Member: Karen Garner
Khano v Akropolis Food Services [2024] NSWPIC 62
Claim for lump sum benefits; whether applicant suffered back injury; whether applicant suffered a primary psychological injury; Held – back injury established, respondent expert applied wrong test; primary post-traumatic stress disorder established; no expert evidence challenging proposition; Romanous Constructions Pty Limited v Arsenovic and White v Marist Youth Care considered and discussed.
Decision date: 14 February 2024 | Member: John Wynyard
Gurung v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 63
Workers Compensation Act 1987; claim for weekly payments; no issue the applicant was a worker for one of the first three respondents, however, the dispute is as to which of them was the employer; applicant gave evidence he was employed by the first respondent, however, the first respondent’s evidence that the second respondent was in fact the employer and the first respondent a mere conduit is compelling; supported as it is by contemporaneous bank statements demonstrating payment by the second respondent to the first respondent; failure by a party to call evidence; the absence of a statement by witnesses employed by the second respondent as to the circumstances at the work site where the applicant was working at the time of his injury, in circumstances where the question of who was in an employment relationship with the applicant and allegations were also made about those witnesses is a significant omission in the case; Held – the applicant was in an employment relationship with the second respondent; alternatively, pursuant to section 20, the second respondent was the principal contractor of the first respondent and therefore liable to pay compensation to the applicant; awards for the first, third and fourth respondents; the applicant was and remains totally incapacitated for the period claimed; second respondent to pay the applicant weekly compensation and section 60 medical and treatment expenses.
Decision date: 14 February 2024 | Member: Cameron Burge
Al Hilali v Primo Moraitis Fresh Pty Ltd [2024] NSWPIC 64
Workers Compensation Act 1987; disputed claim under section 60 in relation to lumbar surgery as a result of agreed injury on 24 August 2018; disputed claim in relation to right thumb surgery as a result of agreed injury on 11 April 2019; Murphy v Allity Management Services and Diab v NRMA Ltd applied; Held – the proposed L5/S1 fusion and decompression surgery together with ancillary treatment is reasonably necessary treatment as a result of the injury on 24 August 2018 and the respondent is to pay the costs; the proposed right thumb CMC arthroscopy and STT Pyrocarbon implant, plus thumb CMC Pyrodisc implant surgery is reasonably necessary treatment as a result of the injury on 11 April 2019 and the respondent is to pay the costs.
Decision date: 14 February 2024 | Principal Member: Josephine Bamber
Motor Accidents Medical Review Panel Decisions
Zjalic v AAI Limited t/as GIO [2024] NSWPICMP 8
The claimant suffered injury in a motor vehicle accident on 6 October 2019 in Wollongong; the dispute related to the assessment of permanent impairment arising from psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with an adjustment disorder and mild driving phobia; assessments made in accordance with Psychiatric Impairment Rating Scale categories; Held – claimant assessed at 6% permanent impairment for the psychological injury; original assessment revoked.
Decision date: 8 January 2024 | Panel Members: Member Gary Victor Patterson, Dr Glen Smith, and Dr Michael Hong | Injury module: Mental and Behavioural
Martin v Allianz Australia Insurance Limited [2024] NSWPICMP 9
The claimant suffered injury on 15 February 2019 at St Ives; the dispute related to the assessment of permanent impairment arising from TMJ dysfunction; Panel satisfied as to causation; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Limited v Marsh applied; Held – claimant assessed at 5% whole person impairment for TMJ dysfunction; original certificate revoked.
Decision date: 8 January 2024 | Panel Members: Member Gary Victor Patterson, Dr David Skyes, and Dr Geoffrey (Paul) Curtain | Injury module: Dental Injury
Tran v QBE Insurance (Australia) Limited [2024] NSWPICMP 51
The claimant suffered injury on 22 July 2019; the dispute related to the assessment of permanent impairment arising from psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with major depressive disorder; assessments made in accordance with Psychiatric Impairment Rating Scale categories; Held – claimant assessed at 24% permanent impairment for the psychological injury; original certificate revoked.
Decision date: 1 February 2024 | Panel Members: Member Gary Victor Patterson, Dr Paul Friend, and Dr Matthew Jones | Injury module: Mental and Behavioural
Muddle v AAI Limited t/as GIO [2024] NSWPICMP 53
Claimant’s application for review of Medical Assessor (MA) Cameron’s whole person impairment (WPI) assessment; Claimant knocked off her mobility scooter in April 2019 hitting her head and injuring her left ankle; these injuries were conceded; in July 2020, the claimant fell fracturing her right wrist; she says she fell due to a loss of balance or unsteadiness caused by her head injury; MA Cameron assessed head injury at 3% and left ankle at 1%; he found 0% WPI for scarring and that the fall (and the right wrist) was not related to the accident but that the claimant had mobility issues before the accident; Held – possible causes of unsteadiness identified and discussed; Panel satisfied that area of head that was injured was area controlling balance and that this was the cause of the claimant’s unsteadiness and gait and the cause of the fall and the fractured wrist; wrist impairment was assessed at 7%; head injury was assessed on basis of “station and gait” at 6%; left ankle at 3% and scarring at 1%; consideration of Chapter 3 of the AMA4 Guides and range of motion method for left ankle and right wrist, TEMSKI and surgical scarring and Chapter 4 of AMA4 and clauses 6.160 - 6.176 of Guidelines regarding nervous system impairment; certificate of MA Cameron revoked.
Decision date: 2 February 2024 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Robin Fitzsimons | Injury module: Brain Injury, Upper and Lower Limb
Apostolov v Allianz Australia Insurance Limited [2024] NSWPICMP 54
Claimant’s car was stopped at traffic lights when it hit from behind by a bus in a low speed accident; Held – original medical certificate revoked regarding permanent impairment; original medical certificate regarding proposed treatment and care of spinal surgery also revoked; on review, the Panel found that the injuries to the claimant’s head, cervical spine and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the left and right shoulders are soft tissue injuries not caused by the motor accident; causation of claimant’s injuries considered; the Panel should make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to claimant’s injury; the Panel also found that the L4/5 decompression surgery as proposed treatment and care does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances; Briggs v IAG Limited trading as NRMA Insurance (No. 2) and Briggs v IAG Limited trading as NRMA Insurance (No. 3) considered and applied as cases on causation.
Decision date: 2 February 2024 | Panel Members: Member Ray Plibersek, Dr Christopher Oates, and Dr Drew Dixon | Injury module: Spine, Brain Injury and Upper Limb
BNZ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 55
Review of certificate of Medical Assessor (MA) Gorman; the claimant suffered injury in a motor vehicle accident on 26 June 2019 at 16 years of age; fracture of the right acetabular; fracture of the superior and inferior pubic ramus and separation of the pubic symphysis; undisplaced fracture of the right sacral alar; fracture of the later condyle of the right humerus; scarring; lumbar spine; claimant has made excellent outcome; Held – clause 6.96 of the Guidelines mandatory to assess pelvic fractures under table 3.4 on page 3/131 of AMA 4 Guides; the enquiry as to displacement to be undertaken at the time of the assessment in accordance with clause 6.21 of the Guidelines; fracture of rami bilateral, pubic symphysis, right sacral alar healed without displacement or deformity and assessed at 0% whole person impairment (WPI); fracture of acetabulum assessed using Table 64 on page 85 of AMA 4 Guides at 0% WPI; fracture of right elbow assessed at 0% WPI; lumbar spine assessed as DRE Lumbosacral category I or 0% WPI; surgical scarring assessed under TEMSKI scale at 2% WPI; certificate of MA Gorman revoked; injury gave rise to 2% WPI.
Decision date: 2 February 2024 | Panel Members: Member Susan McTegg, Dr Michael Couch, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb, and Skin
Insurance Australia Limited t/as NRMA Insurance v Bui [2024] NSWPICMP 56
Assessment of permanent impairment; on 3 August 2022 Medical Assessor (MA) Barrett certified a 13% whole person impairment (WPI) after reduction for pre-existing condition; Held – accident caused a worsening of the impairment; accident caused persistent depressive disorder; pre accident adjustment disorder with mixed anxiety and depressed mood, cannabis use disorder and major depressive disorder in full remission; current WPI 24%; pre-existing WPI of 7%; certificate of MA Barrett revoked; new certificate issued; assessment of 17% WPI caused by accident.
Decision date: 5 February 2024 | Panel Members: Member Susan McTegg, Dr John Baker, and Dr Glen Smith | Injury module: Mental and Behavioural
Verscio v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 57
Review of decision of Medical Assessor (MA) Kenna of 6 March 2023 about whether the claimant suffered a threshold injury to her T11 vertebra; claimant suffered a pre-accident injury to her T10 and T11 vertebrae which was confirmed by X-ray reports; claimant was involved in an accident the subject of this claim on 8 May 2020 and alleged that in the accident she suffered a fracture to her T11 vertebra; the radiologist who undertook the pre-accident scans provided an addendum report on 17 June 2020 after comparing the 2014 X-rays and noted that the previous examinations stated that the lower most lumbar vertebra was designated L5 however the claimant is a rare member of the population who has an L6 vertebra and accordingly the vertebra in the claimants spinal column had been incorrectly designated; the correct designation of the pre-accident vertebral compression fracture related to the T11 vertebra and this was not a new fracture; the Panel found that the claimant had only suffered a soft tissue injury to her T11 vertebra; Held – certificate of MA Kenna was correct.
Decision date: 5 February 2024 | Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs, and Dr Mohammed Assem | Injury module: Spine
Mastroianni v AAI Limited t/as GIO [2024] NSWPICMP 58
Review application by claimant of certificate of Medical Assessor (MA) Cameron dated 1 April 2022 going to determination of whether a soft tissue injury to the claimant’s cervical spine radiculopathy, lumbar spine, right hip osteoarthritis and radiating injury from neck to both arms/shoulders; radiculopathy and injury to head were threshold injuries; assessment of radiculopathy by claimants GP but no radiculopathy observed at time of medical examination; Panel approved reasons in David v Allianz Australia Insurance Limited that radiculopathy could be assessed by someone other than a member of the Review Panel and at another time but post-accident; Panel not satisfied that injuries to the claimants arms and hips were causally related to the accident; Held – decision of MA Cameron affirmed; the claimant had suffered threshold injuries of her cervical spine, lumbar spine and head and that observations of radiculopathy were with regard to pre-existing conditions of the claimant and the claimant had failed to establish causation in this regard.
Decision date: 6 February 2024 | Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Michael Couch | Injury module: Spine, Brain Injury, Upper and Upper Limb
Villanueva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 59
The claimant sustained injury in a motor vehicle accident on 6 November 2018 arising out of a carjacking; injury to hip, shoulders, arms, elbows, hands, neck, L4 compression fracture with kyphotic deformity, chest, pelvis, lower limbs and psychological injury; domestic assistance provided by sister and paid by claimant; Medical Assessor (MA) Shahzad certified request for payment or reimbursement for domestic services related to injury caused by accident and reasonable and necessary in the circumstances; Held – dispute as to whether cost treatment and care provided or to be provided to the claimant is a merit review dispute; MA Shahzad conflated medical assessment dispute and merit review dispute; insurer conceded need for domestic assistance related to the injury caused by the accident; parties asked Panel to determine whether the treatment and care was reasonable and necessary in the circumstances; following assessment by MA Piebenga Panel concluded 8 hours domestic assistance was reasonable and necessary; Panel concluded “in the circumstances’ meant reasonable for care to be provided by claimant’s sister where assistance initially provided during COVID pandemic; claimant 70 years of age, increasingly frail devout single woman; sister had relevant experience to provide the care and assistance having worked as registered nurse in Sydney for 18 years caring for persons with disabilities living in group homes; and convenience of having care provider available in home; Panel limited dispute for domestic assistance to 6 November 2023, five years post-accident when CTP care became the relevant insurer and where CTP care not on notice of the dispute, joined to the proceedings or given an opportunity to be heard; Certificate of MA Shahzad revoked and new certificate issued certifying need for domestic assistance for eight hours per week from date of accident to 6 November 2023 reasonable and necessary in the circumstances and caused by the accident.
Decision date: 7 February 2024 | Panel Members: Member Susan McTegg, Dr Margaret Gibson, and Dr Dawn Piebenga | Injury module: Treatment Type: Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary
Workers Compensation Medical Appeal Panel Decisions
MidCoast Council v Cheers [2024] NSWPICMP 21
The appellant submitted that the Medical Assessor (MA)erred in his assessments in respect of four of the Psychiatric Impairment Rating Scale categories, principally on the grounds of the respondent’s inconsistent presentation; the Panel agreed the MA erred in respect of two of the categories appealed but confirmed the two others appealed; Held – Medical Assessment Certificate revoked.
Decision date: 15 January 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Pogson v WESTGLASS HOLDINGS PTY LTD ATF Westglass Unit Trust [2024] NSWPICMP 61
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; appeal in three categories, based on the difference between the Medical Assessment Certificate (MAC) and a doctor qualified for the worker; State of New South Wales v Kaur and Ferguson v State of New South Wales referenced; assessment on the day of the examination; Held – mac confirmed.
Decision date: 9 February 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
The appellant submitted that the Medical Assessor (MA) erred in his assessments of the right shoulder and right elbow; the MA ought to have applied clause 2.20 of the Guidelines when calculating impairment of the right shoulder and right elbow for loss of range of movement by using the impairment values of the left shoulder and left elbow joints as a baseline and subtracting the left shoulder and left elbow impairment values from the calculated impairment for the right shoulder and right elbow joints; Panel held there is evidence that the left shoulder was not a “normal/uninjured joint” it cannot be used as a baseline for comparison; therefore, a subtraction cannot be applied in accordance with clause 2.20 of the Guidelines; as there is no evidence of any injury to the left elbow, the joint is considered to be essentially normal, such that a deduction is warranted in the circumstances of this particular case; Held – Medical Assessment Certificate revoked.
Decision date: 9 February 2024 | Panel Members: Member Deborah Moore, Dr Alan Home, and Dr Margaret Gibson | Body system: Left and Right Upper Extremity, Upper Digestive Tract, Anal Disease, Spine, and Scarring
Brewer v Secretary, Department of Communities and Justice [2024] NSWPICMP 63
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; State of New South Wales v Kaur, Ferguson v State of New South Wales,and Ballas v Department of Education considered; travel not limited to driving; assessment with respect to concentration, persistence and pace was glaringly improbable; Held – Medical Assessment Certificate revoked.
Decision date: 9 February 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
McIntyre v State of New South Wales (NSW Police Force) [2024] NSWPICMP 64
Claim for primary psychiatric injury; Medical Assessor (MA) assessed 9% whole person impairment; appellant submitted that the MA erred in his assessments of self-care and personal hygiene, travel, social and recreational activities and concentration, persistence and pace; Panel satisfied that there was no error in the assessments in those Psychiatric Impairment Rating Scale categories nor any application of incorrect criteria; Held – Medical Assessment Certificate confirmed.
Decision date: 12 February 2024 | Panel Members: Member Carolyn Rimmer, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2024] NSWPICMP 65
Appeal from assessment of whole person impairment (WPI); assessment of WPI as a result of primary psychological injury, following consent determination that there was no secondary psychological injury; WPI assessed by Appeal Panel without the need for further examination; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 12 February 2024 | Panel Members: Member R J Perrignon, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Dunn v Westruss Manufacturing Pty Ltd [2024] NSWPICMP 66
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the Psychiatric Impairment Rating Scale table for social and recreational activities; Ferguson v State of New South Wales considered; Medical Assessor considered reasons for restrictions on activities; Held – Medical Assessment Certificate confirmed.
Decision date: 12 February 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Hogan v Mercy Services [2024] NSWPICMP 67
The appellant submitted that the Medical Assessor erred in failing to adopt the appropriate method of assessment, as required under the Guidelines by not evaluating and assessing grip strength; failing to carefully document findings and provide calculations as prescribed by part 2.1 of the Guidelines and 16.1b of the AMA 5 Guides; failing to give adequate reasons for conclusions reached; failing to provide an assessment for scarring; the Panel agreed; re-examination arranged; Held – Medical Assessment Certificate revoked.
Decision date: 12 February 2024 | Panel Members: Member Deborah Moore, Dr Chris Oates, and Dr Neil Berry | Body system: Left Upper Extremity and Scarring
Islam v 199 George Street Hotel Pty Ltd t/as Four Seasons Hotel Sydney [2024] NSWPICMP 68
Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in respect of his assessment of shoulder impairment, in his application of section 323, and failed to give adequate reasons in the deduction he made pursuant to section; the Panel agreed; re-examination was arranged; Held – Medical Assessment Certificate revoked.
Decision date: 12 February 2024 | Panel Members: Member Deborah Moore, Dr James Bodel, and Dr Chris Oates | Body system: Spine, Left and Right Upper Extremity
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.