Legal Bulletin No. 152
This bulletin was issued on 15 March 2024
Issued 15 March 2024
Welcome to the one hundred and fifty second edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Presidential Member Decision
Gunnedah Shire Council v Conlan [2024] NSWPICPD 14
Workers compensation; injury arising as a result of the nature and conditions of employment; claim for medical expenses under section 60 of the Workers Compensation Act 1987; whether a claim has been made or notified; definition of a claim under sections 4 and 289 of the Workplace Injury Management and Workers Compensation Act 1998; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied; Held – Certificate of Determination dated 16 May 2023 is confirmed.
Decision date: 1 March 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Allianz Australia Insurance Limited v Quick [2024] NSWPIC 93
Motor Accident Injuries Act 2017; settlement approval in the sum of $7,000; 54-year-old male; past economic only; no entitlement to non-economic loss; 0% whole person impairment; fractured left 6th rib now healed; closed period economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 28 February 2024 | Member: Shana Radnan
Allianz Australia Insurance Limited v Quick [2024] NSWPIC 94
Motor Accident Injuries Act 2017; settlement approval in the sum of $8,500; 54-year-old male; past economic only; no entitlement to non-economic loss; 0% whole person impairment; fractured left third rib now healed; closed period economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 28 February 2024 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Patsalis v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 99
The applicant sought a finding that he had suffered an aggravation, exacerbation or acceleration of his underlying disease of schizophrenia; application refused; Held – an award for the respondent.
Decision date: 1 March 2024 | Member: Lea Drake
Tyers v Graphic Packaging International Inc [2024] NSWPIC 100
Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; no dispute that the applicant had suffered hernia injuries to both groins in the course of his employment with the respondent; the applicant alleged that the right sided hernia injury developed as a consequence of the earlier left sided hernia injury; the respondent disputed that the right sided hernia condition was a consequential condition and therefore that the impairments from the left and right hernia conditions could be combined for the purposes of assessment of impairment pursuant to section 66; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw,and Mason v Demasi considered; Held – the applicant sustained a consequential condition of the right groin as a result of the accepted left hernia injury sustained on 10 May 2015.
Decision date: 4 March 2024 | Member: John Turner
Harm v Secretary, Department of Education [2024] NSWPIC 101
Workers Compensation Act 1987; the applicant claimed a separate injury resulting in hypersomnolence thereby entitling her to a referral to a medical examiner or assessment of whole person impairment; the respondent relied on section 65A and submitted that the applicant’s condition resulted from a secondary psychiatric condition; Held – finding of a second injury; application referred to a medical examiner.
Decision date: 4 March 2024 | Member: Lea Drake
Motor Accidents Medical Review Panel Decisions
Todev v AAI Limited t/as GIO [2024] NSWPICMP 108
Motor Accidents Compensation Act 1999; claimant suffered injury in multi vehicle collision on 20 October 2016; assessment of permanent impairment of neck injury; parties accepted the assessment of the single Medical Assessor (MA) for the left shoulder, right shoulder and thoracic spine injuries; causation; cervical neck fusion; whether neck surgery due to neck injury caused by the accident or due to progression of pre-existing degenerative disease; where the single MA assessed whole person impairment (WPI) as DRE cervicothoracic category IV- 25% and deducted 100% due to pre-existing degenerative disease; Held – assessment of DRE cervicothoracic category IV WPI of 25% is wholly attributable to neck injury caused by the accident.
Decision date: 22 February 2024 | Panel Members: Member Maurice Castagnet, Dr Les Barnsley, and Dr Philip Truskett | Injury module: Spine and Upper Limb
Allianz Australia Insurance Limited v Davies [2024] NSWPICMP 109
Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 20 September 2021; vehicle ran over the claimant’s legs causing multiple fractures; assessment of permanent impairment of both lower extremities and surgical scarring; examination showed ankylosis in valgus position greater than 10 degrees resulting in loss of medical arch assessed under Table 57 of AMA4; injury to common peroneal nerve in right leg and sural nerve in left leg assessed under Tables 20 and 68 of AMA4; surgical scars are significant and had trophic changes, adherence, staple marks and need for treatment assessed at 3% under best fit; right toe not claimed; assessed due to ankylosis; not included in assessment; claimant’s impairment permanent under clauses 6.19 and 6.20 of the Guidelines due to sufficient time since previous surgery; clinical examination did not require surgery in foreseeable future; Held – claimant assessed at 22% permanent impairment due to physical injuries; medical assessment confirmed as over 10% threshold.
Decision date: 26 February 2024 | Panel Members: Principal Member John Harris, Dr Shane Maloney, Dr Geoffrey Stubbs | Injury module: Lower Limb
Phan v QBE Insurance (Australia) Limited [2024] NSWPICMP 110
Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 19 August 2020; right hand turn causing collision; various injuries sustained including psychological condition; consideration of medical reports which referred to acute stress disorder and possibility of post-traumatic stress disorder; claimant re-examined; clinical expertise of the Medical Assessors was that the claimant suffered from post-traumatic stress disorder under DSM5 caused by motor accident; Held – medical assessment certificate revoked; claimant suffered non-threshold psychological injury.
Decision date: 26 February 2024 | Panel Members: Principal Member John Harris, Dr Sharon Reutens, and Dr Gerald Chew | Injury module: Mental and Behavioural
BTU v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 111
Motor Accidents Compensation Act 1999; review of medical assessment of permanent impairment under section 63; where Medical Assessor (MA) certified that psychological injury caused by the accident gave rise to a permanent impairment that was not greater than 10%; Held – the claimant suffers from an accident caused psychiatric injury; the injury does not give rise to a permanent impairment greater than 10%; MA’s certificate confirmed.
Decision date: 26 February 2024 | Panel Members: Senior Member Brett Williams, Dr Thomas Newlyn, and Dr Matthew Jones | Injury module: Mental and Behavioural
Campbell v QBE Insurance (Australia) Limited [2024] NSWPICMP 112
Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 29 April 2018 from head on collision; assessment of permanent impairment of right ankle, hindfoot and surgical scarring; right ankle assessed by manual muscle testing pursuant to Table 38 and 39 of AMA4; hindfoot assessed by loss of range of motion at 1%; surgical scar assessed at 1% under best fit principle; Held – claimant assessed at 7% permanent impairment due to physical injuries; medical assessment confirmed.
Decision date: 26 February 2024 | Panel Members: Principal Member John Harris, Dr Shane Maloney, and Dr Geoffrey Stubbs | Injury module: Lower Limb and Skin - Scarring
Insurance Australia Limited t/as NRMA Insurance v Kang [2024] NSWPICMP 113
The claimant suffered injury in a motor vehicle accident on 1 June 2022; Medical Assessor (MA) Wijetunga certified injuries to cervical spine, left leg, left hip, right hip, right shoulder and chest were threshold injuries; injury to lumbar spine central annular tear was not a threshold injury; right or left knee and pelvis injury not caused by accident; review of decision of MA Wijetunga; parties agreed to limit review to lumbar spine and right shoulder; Held – imaging showed annular tear and changes were pre-existing and not caused by accident; claimant suffered soft tissue injury to lumbar spine; injury to lumbar spine is a threshold injury; no history prior injury to right shoulder; MA Wijetunga unaware of presence of MRI of right shoulder showing a SLAP tear; SLAP tear constitutes a rupture of a tendon and is not a threshold injury; certificate of MA Wijetunga revoked.
Decision date: 27 February 2024 | Panel Members: Member Susan McTegg, Dr Neil Berry, and Dr Margaret Gibson | Injury module: Spine, Lower and Upper Limb
Najjarin v QBE Insurance (Australia) Limited [2024] NSWPICMP 114
Motor Accident Injuries Act 2017; review of medical assessment; dispute as to level of whole person impairment (WPI) and treatment care; claimant injured in a motorbike accident on 7 April 2018 when vehicle turned in front of him; claimant thrown onto bonnet and then to ground; alleged injuries to back, head, left knee, right knee, right shoulder, and arm; also claim of chronic regional pain syndrome (CRPS); treatment requests for ultrasound guided cortisone injections and various radiological scans; Medical Assessor had found 5% WPI; Held – Review Panel revoked certificate with a finding of 10% WPI; CRPS not established in accordance with Guidelines; treatment found not reasonable and necessary in the circumstances.
Decision date: 27 February 2024 | Panel Members: Member Elizabeth Medland, Dr Alan Home, and Dr Sophia Lahz | Injury module: Nervous System (Neurological), Brain Injury, Spine, Upper and Lower Limb; Treatment Type: Radiological Investigations
McCartney v AAI Limited t/as GIO [2024] NSWPICMP 115
Motor Accident Injuries Act 2017; whether the physical injuries to the lumbar spine, right leg, right foot, and thoracic spine are threshold injuries; Held – Medical Assessor’s determination of threshold injuries partially confirmed.
Decision date: 27 February 2024 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Shane Moloney | Injury module: Spine and Lower Limb
AAI Limited t/as AAMI v Chimata [2024] NSWPICMP 116
Review of medical assessment; assessment of treatment and care - causation; domestic assistance does not relate to the injury caused by the motor accident; domestic assistance is not reasonable and necessary in the circumstances; psychotropic medication does not relate to the injury; is not reasonable and necessary in the circumstances; Held – Lexapro and other anti-depressants relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances; claimant has not consulted a psychiatrist; mental state examination and current functioning; persistent depressive disorder; post-traumatic stress disorder in partial remission; pain disorder and domestic assistance; certificate revoked and new certificate issued.
Decision date: 29 February 2024 | Panel Members: Member Hugh Macken, Dr Wayne Mason, and Dr Thomas Newlyn | Injury module: Treatment Type: Domestic Assistance - Causation, Domestic Assistance - Reasonable and Necessary, Medication - Prescription, Pain Management Program, Psychiatric Treatment, and GP Consultations
Workers Compensation Medical Appeal Panel Decisions
Briel v Woolworths Group Limited [2024] NSWPICMP 87
Appellant alleged error in the assessment under one of the categories under the Psychiatric Impairment Rating Scale, namely, social functioning; the rating of class 2 was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.
Decision date: 21 February 2024 | Panel Members: Member Catherine McDonald, Dr Margaret Gibson, and Dr Roger Pillemer | Body system: Spine, Left Upper Extremity, and Scarring
Kader v BS-BC PTY LTD ATF BS-CR Trust [2024] NSWPICMP 98
Workplace Injury Management and Workers Compensation Act 1998; assessment of lumbar spine impairment; assessment on the day of the examination; application of AMA 5 and the Guidelines for Evaluation of Permanent Impairment; Held – Medical Assessment Certificate confirmed.
Decision date: 26 February 2024 | Panel Members: Member Catherine McDonald, Dr Margaret Gibson, and Dr Roger Pillemer | Body system: Spine, Left Upper Extremity, and Scarring
Appeal in respect of the impairment assessment for scarring; appeal on the basis of the application of incorrect criteria; Appeal Panel satisfied as to error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked.
Decision date: 27 February 2024 | Panel Members: Member Jane Peacock, Dr Paul Curtin, and Dr Malcolm Linsell | Body system: Right Upper Extremity and Skin – Scarring
Tonkin v Secretary, Department of Education [2024] NSWPICMP 117
The appellant submitted that the Medical Assessor (MA) erred with respect to four of the categories in the Psychiatric Impairment Rating Scale, namely social and recreational activities, social functioning, concentration, persistence and pace and employability; Panel found no errors; the MA’s assessments were consistent with all the evidence; Held – Medical Assessment Certificate confirmed.
Decision date: 4 March 2024 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Perrin v Toowoomba Building & Construction Pty Ltd [2024] NSWPICMP 118
Workplace Injury Management and Workers Compensation Act 1998; appeal from 14% finding regarding injury to lumbar spine; whether Medical Assessor (MA) erred in his assessment of ADL entitlement under chapter 4.35 of the Guides; whether MA erred in application of section 323; Held – chapters 4.33 - 4.35 do not set out criteria, as wide discretion given; reasons given at [11] of the Medical Assessment Certificate (MAC) to be seen in context; observations on the utility of template at [11]; Cole v Wenaline Pty Ltd considered and applied; MAC confirmed.
Decision date: 5 March 2024 | Panel Members: Member John Wynyard, Dr Brian Stephenson, and Dr Chris Oates | Body system: Spine and Scarring (TEMSKI)
Sharma v Australian Pharmaceutical Industries Ltd [2024] NSWPICMP 119
Whether Medical Assessor (MA) erred by concluding appellant’s presentation at examination was inconsistent; whether MA erred or applied incorrect criteria by assessing appellant’s impairment of her upper extremities by reference to impingement; Appeal Panel held MA made no error and made his assessment based on correct criteria; Held – Medical Assessment Certificate upheld.
Decision date: 5 March 2024 | Panel Members: Member Marshal Douglas, Dr Margaret Gibson, and Dr Alan Home | Body system: Spine, Left and Right Upper Extremity
Rodriguez v PGC Projects Pty Ltd [2024] NSWPICMP 120
Whether Medical Assessor (MA) considered most recent MRI scan done of appellant’s lumbar spine; whether MA erred by concluding appellant did not have radiculopathy; whether MA applied incorrect criteria; Appeal Panel held it was likely that MA did not consider most recent MRI scan; demonstrable error found; appellant re-examined; Held – Medical Assessment Certificate revoked.
Decision date: 6 March 2024 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer, and Dr David Crocker | Body system: Spine and Scarring
Motor Accidents Merit Review Decision
Zou v QBE Insurance (Australia) Limited [2024] NSWPICMR 4
Motor Accident Injuries Act 2017; claimant’s application for merit review in respect of insurer’s determination that the claimant’s pre-accident weekly earnings (PAWE) was nil; claimant a self-employed jewellery maker who commenced a her business in 2021; insurer relies on report from expert; records of the business indicate the business was operating at a loss and the claimant’s most recent income tax return did not disclose income other than dividends and interest; claimant provided no new or additional information or submissions; Held – insurer’s decision affirmed, claimant’s PAWE was nil; no matter of principle.
Decision date: 1 March 2024 | Merit Reviewer: Belinda Cassidy
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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