Legal Bulletin No. 153

Issued 22 March 2024

Welcome to the one hundred and fifty third 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

Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59

Statutory interpretation; meaning of “unpaid leave”; whether a period of absence from work due to incapacity from an injury for which a worker was paid workers compensation constitutes a “period of unpaid leave”; cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987 (NSW); reg 8E of the Workers Compensation Regulation 2016 (NSW); Held – the appeal is allowed; orders made by the Deputy President on 23 June 2023 are set aside; Certificate of Determination dated 28 June 2022 is revoked.

Decision date: 20 March 2024 | Before: Leeming JA, Stern JA, and Griffiths AJA

Presidential Member Decisions

State of New South Wales (Western Sydney Local Health District) v Moslemi [2024] NSWPICPD 15

Workers compensation; sections 4(a) and 4(b)(ii) of the Workers Compensation Act 1987; whether the injury was a personal injury or an aggravation of a disease; Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; Rail Services Australia v Dimovski [2004] NSWCA 267 discussed and applied; Held – leave to appeal the Senior Member’s interlocutory decision is granted; the Certificate of Determination dated 24 April 2023 is revoked.

Decision date: 12 March 2024 | Before: Deputy President Elizabeth Wood

State of New South Wales (NSW Police Force) v Browne [2024] NSWPICPD 16

Workers compensation; requirement to show error in order to revoke a Certificate of Determination; Held – the appeal is allowed; the Certificate of Determination dated 7 March 2023 is revoked.

Decision date: 12 March 2024 | Before: Acting Deputy President Michael Perry

Stone v Gilbarco Australia Pty Ltd [2024] NSWPICPD 17

Workers compensation; injury; treatment of clinical notes; contemporaneity of complaint of cervical spine injury; Held – the Certificate of Determination dated 2 June 2023 is confirmed.

Decision date: 14 March 2024 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Issa v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 104

Motor Accidents Compensation Act 1999; damages assessment only; no non-economic loss; claimant electrician suffered soft tissue injuries only, but such that he could no longer work on the tools; now 95% supervisory but has increased profits; modest buffer for past and future, $50,000 each; no future commercial care; Held – damages assessed is $102,581.20.

Decision date: 22 February 2024 | Member: Allan Cowley

Zjacic v AAI Limited t/as GIO [2024] NSWPIC 105

Claim for damages; the claimant was a passenger in a motor vehicle which collided with the rear of another vehicle; he sustained injuries to his neck, back and left shoulder; he also sustained post-traumatic stress disorder; parties agreed claimant sustained whole person impairment greater than 10%; claimant only worked in Australia as formwork labourer or formwork carpenter for about three years; claimant ceased work in 2008 or 2009 to care for his elderly unwell mother; claimant asserted when his mother no longer required care he intended to return to work as a formwork carpenter; claim for future economic loss based on likely earnings as formwork carpenter; Held – claimant honest witness; accident caused change in most likely future circumstances; had accident not occurred claimant would have returned to work in construction industry when mother no longer required care; opportunities for return to employment uninjured limited to construction industry having regard to poor English, lack of qualifications and lengthy absence from workforce; now unfit for return to work in construction industry; future economic loss deferred for seven years (life expectancy of mother) and assessed in sum of $317,136.14; non-economic loss assessed in sum of $300,000; total damages assessed in sum of $617,136.14; costs assessed in favour of claimant.

Decision date: 6 March 2024 | Member: Susan McTegg

Kelly v Allianz Australia Insurance Limited [2024] NSWPIC 108

Miscellaneous claims assessment; whether accident caused wholly or mostly by the fault of the claimant; disputed facts; claimant was a pedestrian; collision with trailer being towed by a vehicle; claimant’s case was that the vehicle and trailer had cut a corner and collided with her; insurer’s case was that the claimant was intoxicated and walked into the trailer; Held – the claimant stepped or stumbled backwards into the trailer after the vehicle towing it had passed her; claimant had failed to exercise reasonable care; there was no fault on the part of the driver, who was driving carefully and to the prevailing conditions; the accident was caused wholly by the fault of the claimant.

Decision date: 8 March 2024 | Senior Member: Brett Williams

QBE Insurance (Australia) Limited v Gleeson [2024] NSWPIC 111

Motor Accident Injuries Act 2017; 58-year-old motorcyclist injured in a collision with insured motor vehicle; sustained fractures through the distal left radius and left scaphoid bone of the left wrist, fracture of the tibula shaft of the left leg; absent from his employment for a period of several weeks and thereafter returned to full time duties; now employed as a fabricating accounts manager visiting clients to update computer software systems; experiences some discomfort in his back after driving his vehicle for more than one hour and also complains of pain in both right hand and left wrist after his daily activities; insurer conceded claimant had sustained a non-threshold injury; liability admitted; no entitlement to non-economic loss; claim for past and future economic loss; amount proposed for past economic loss is $6,660 and for future economic loss is $60,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 11 March 2024 | Member: David Ford

Maddison v Allianz Australia Insurance Limited [2024] NSWPIC 112

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was a no-fault accident for the purposes of Part 5; where the claimant was injured when he was riding his motorcycle at around midnight on his way to work and he struck some pieces of wooden logs that lay across the roadway; res ipsa loquitur; claimant not at fault; no inferences of fault on the part of some other person could be drawn that would go beyond speculation; Held – this is a no-fault accident.

Decision date: 11 March 2024 | Member: Maurice Castagnet

AAI Limited t/as GIO v Benbow [2024] NSWPIC 121

Motor Accident Injuries Act 2017; settlement approval in the sum of $950,000; 49-year-old male farrier by occupation; entitlement to non-economic loss agreed sum $325,000; fracture to thoracic T3-5 now healed; ongoing cervical spine pain; past economic loss is $155,000 and buffer for lost opportunity is $70,000; future economic loss; weekly loss $700.00 ongoing; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 13 March 2024 | Member: Shana Radnan

QBE Insurance (Australia) Limited v Daramy [2024] NSWPIC 125

Motor Accident Injuries Act 2017; settlement approval; fractured sternum, fractured dislocation, fractured left little finger; calculation of past economic loss; future economic loss; insurer seeks credit for pre-injury average weekly earnings; repayment to Centrelink; prior good health; unrelated surgery; good recovery; no ongoing disabilities; assumptions as to most likely circumstances; consideration of medical material; Held – settlement approved under section 6.23.

Decision date: 14 March 2024 | Member: Hugh Macken

Workers Compensation non-Presidential Member Decisions

Preece v Chemcorp Pty Ltd [2024] NSWPIC 95

Workers Compensation Act 1987; claim for weekly compensation and treatment expenses in respect of psychological injury; whether defence pursuant to section 11A(1) made out; multiple workplace events causative of injury; whether events constituted reasonable action with respect to discipline; extent of incapacity; Held – the respondent failed to discharge its onus of establishing that injury was wholly or predominantly caused by reasonable action with respect to discipline; applicant had no current work capacity as a result of injury; awards for the applicant for weekly benefits and treatment expenses.

Decision date: 29 February 2024 | Member: Rachel Homan

Wellington v Secretary, Department of Education (TAFE NSW) [2024] NSWPIC 106

Workers Compensation Act 1987; claim for weekly compensation following psychological injury deemed to have occurred on 22 March 2021; respondent relied on a section 11A defence in respect of discipline; held events on 2 and 3 March 2021 were not the whole or predominant cause of the applicant’s injury and earlier events including incidents of lateral violence, excessive workload and bullying were causative workplace stressors as well as the events on 2 and 3 March 2021; Held – respondent failed to discharge the onus to establish a section 11A defence; award for the applicant for weekly benefits.

Decision date: 7 March 2024 | Member: Carolyn Rimmer

Walton v Guardian Protection Services (Aust) Pty Ltd [2024] NSWPIC 107

Workers Compensation Act 1987; claim for accepted injuries to the cervical spine and both shoulders, together with a disputed consequential condition to the left knee alleged to result from the accepted injuries; claim for compensation pursuant to section 66; consideration of applicant’s statement, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant sustained a consequential injury to his left knee resulting from his accepted injuries, during exercise physiology sessions in late 2021/early 2022; Shao Wen Zheng v Guo Yong Yang & Ors, Nguyen v Cosmopolitan Homes, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Kennedy Cleaning Services Pty Ltd v Petkoska, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia, North Coast Area Health Service v Felstead, Corestaff Australia NSW Pty Limited v Lashbrook, Drca v KAB Seating Systems Pty Ltd, Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited,and Jaffarie v Quality Castings Pty Limited considered; Held – the applicant has sustained a consequential injury to his left knee resulting from his accepted injuries, during exercise physiology sessions in late 2021/early 2022; the determination of the applicant’s whole person impairment will be remitted to the President for referral to a Medical Assessor.

Decision date: 7 March 2024 | Member: Gaius Whiffin

Cifala v NF Importers Pty Ltd [2024] NSWPIC 109

Claim for weekly payments and medical expenses for psychological injury; whether the worker sustained injury in the course of his employment; whether the worker’s cessation of work was due to an industrial dispute and did not involve a psychological injury; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause injury; reference to Attorney General’s Department v K; whether the worker has had no current work capacity since he ceased work in March 2023; Held – the worker sustained an injury in the course of his employment with the respondent; the worker has had no current work capacity since 30 March 2023; award of weekly payments of compensation and for the payment of medical expenses.

Decision date: 8 March 2024 | Member: John Isaksen

Thurlow v CDC NSW Pty Ltd [2024] NSWPIC 110

Workers Compensation Act 1987; claim for weekly benefits and the cost of future surgery to the lumbar spine pursuant to section 60 arising out of or in the course of his employment as a bus driver for the respondent; the applicant also claimed that he injured his cervical spine at the same time as he suffered injury to the lumbar spine; claim disputed by the respondent employer on the basis of a long history of prior back problems which the applicant worker either understated, or failed to reveal, to doctors who treated or examined him; the applicant claimed injury pursuant to section 4(b)(ii); the respondent claimed that the applicant’s evidence was in respect of a frank incident only for which there was no medical support in his case, and he could not therefore rely on a ‘nature and conditions’ type claim; finding that the applicant had sustained injury to his lumbar spine pursuant to section 4(b)(ii); Held – award for the respondent in respect of claim for injury to the cervical spine; award for the respondent for weekly benefits as a result of injury to the lumbar spine, and for the cost of surgery thereon; award for the respondent in respect of claim for injury to the cervical spine.

Decision date: 8 March 2024 | Member: Brett Batchelor

Yan v Adecco Industrial Pty Ltd [2024] NSWPIC 114

Workers Compensation Act 1987; lump sum and weekly compensation claims from injury in 2018; respondent agrees applicant sustained work-related right shoulder and cervical spine injuries; issue in dispute is whether applicant sustained an injury to her left shoulder; Kooragang Cement Ltd v Bates applied; Held – the applicant has sustained an injury to her left shoulder pursuant to section 4(b)(i) in the course of employment with the respondent; employment with the respondent was the main contributing factor to the contraction of the disease in the left shoulder.

Decision date: 11 March 2024 | Principal Member: Josephine Bamber

Pham v State of New South Wales (South Western Sydney Local Health District) [2024] NSWPIC 115

The applicant alleged an injury to his shoulder; injury, incapacity and the need for surgery in issue; Held – finding of injury, incapacity and an order that the respondent pay for the recommended surgery.

Decision date: 11 March 2024 | Member: Lea Drake

McCormick v Woolstar Pty Ltd [2024] NSWPIC 116

Workers Compensation Act 1987; the applicant claims weekly benefits, medical and related treatment expenses and permanent impairment resulting from primary psychological injury sustained in the course of his employment with the respondent; the claim is declined with injury in issue and in the alternative, defence raised under section 11A(1) with respect to transfer and/or the provision of employment benefits to workers; Held – the applicant sustained primary psychological injury the course of his employment with the respondent, with his employment being the main contributing factor to injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer and/or discipline, the applicant has entitlement to weekly compensation payable under section 36 and 37 on the basis he has no current capacity for work; the applicant’s claim for permanent impairment compensation resulting from primary psychological injury with deemed date of 25 September 2019 is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the injury.

Decision date: 11 March 2024 | Member: Jacqueline Snell

Cornish v Herb Blanchard Haulage Pty Ltd & Ors [2024] NSWPIC 117

Workers Compensation Act 1987; work capacity decision of the insurer to reduce the applicant’s entitlement to weekly compensation payments on the basis of their assessment of his capacity to work in suitable employment; applicant has an agreed lumbar injury and consequential psychological symptoms; applicant contends he has “no current work capacity” as defined in schedule 3, clause 9; Wollongong Nursing Home v Dewar applied; Held – applicant has no current work capacity from 10 October 2023; respondents are to pay the applicant weekly compensation pursuant to section 37.

Decision date: 12 March 2024 | Principal Member: Josephine Bamber

Dewar v Direct Freight (Aust) Pty Ltd [2024] NSWPIC 118

Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66 in respect of injury to right upper extremity and cervical spine; the applicant worker claimed that in addition to referral of undisputed injury to the right wrist and thumb, and cervical spine, assessment of the whole of the right upper extremity should be referred without restriction to the wrist and thumb; this was on the basis that the applicant had in the past experienced symptoms of complex regional pain syndrome (CRPS), which was found not to be present by the independent medical examiner who examined the applicant and on whose report the applicant relied; the examiner did not provide an assessment of whole person impairment in respect of CRPS; discussion of the court of appeal decision in Skates v Hills Industries Ltd, Secretary, New South Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd; Held – the referral to the Medical Assessor should be in respect of the cervical spine, and right upper extremity.

Decision date: 12 March 2024 | Member: Brett Batchelor

Zaree v C & N LASER PTY LTD [2024] NSWPIC 119

Workers Compensation Act 1987; pre-injury average weekly earnings (PIAWE); dispute as to whether bonus payments should have been included in calculation: whether schedule 3.2(2)(d) prevented the same as being payments made without obligation; Held – respondent’s reliance on Taylor-Craig v Smartgroup Benefits Pty Ltd distinguished as no written contractual term present, parole evidence considered and payment of bonus found to be a contractual obligation; bonus payments accordingly part of the PIAWE.

Decision date: 12 March 2024 | Member: John Wynyard

Littlefield v Leading Edge Maintenance Services [2024] NSWPIC 120

Workers Compensation Act 1987; claim for lump sum compensation, weekly payments and section 60 treatment expenses; applicant had accepted injury to lumbar spine; injury to thoracic spine agreed at hearing; agreed award for the respondent in claim for injury to the left hip; by consent injury to lumbar and thoracic spine referred to Medical Assessor; claim for weekly payments discontinued; remaining issue in dispute whether treatment with medicinal cannabis reasonably necessary; no dispute applicant had severe pain following injury and continuing pain following surgery; no dispute he had been able to reduce and then cease use of addictive opioid medication; criteria in Diab v NRMA and Couch v Electus Distribution considered; Held – finding that proposed treatment is reasonably necessary.

Decision date: 12 March 2024 | Member: Jill Toohey

Chester v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 124

Injury to wrist acknowledged; respondent found liable for cost of 2 surgeries and related closed periods; Held – applicant suffered an injury arising out of or in the course of her employment with the first respondent; employment with the first respondent was a substantial contributing factor to the injury suffered.

Decision date: 13 March 2024 | Member: Lea Drake

Motor Accidents Medical Review Panel Decisions

Walkom v AAI Limited t/as GIO [2024] NSWPICMP 122

Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 15 June 2016 when she was a front seat passenger in a stationary vehicle which was struck from behind by another vehicle; dispute as to whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%; Medical Assessor (MA) found that the injuries to the cervical spine, left shoulder and lower back were caused by the accident and assessed that these give rise to a combined whole person impairment (WPI) of 6%; 0% for the neck/cervical spine, 1% for the left shoulder and 5% for the lumbar spine; Panel was satisfied that the accident caused soft tissue injuries to the cervical spine, lumbar spine and left shoulder, but was not satisfied that the accident caused either a frank injury to the claimant’s right shoulder, or a secondary injury to the right shoulder from overuse of it because the claimant was sparing her left shoulder, which was injured in the accident; Held – Panel assessed WPI at 3% for the left shoulder and 0% for both the cervical spine and lumbosacral spine; degree of permanent impairment as a result of the injuries caused by the accident is not greater than 10%; certificate of MA revoked.

Decision date: 1 March 2024 | Panel Members: Member Cameron Thompson, Dr Clive Kenna, and Dr Neil Berry | Injury module: Spine and Upper Limb

Norsworthy v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 123

Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 12 January 2020; insured vehicle entered roundabout and struck claimant’s vehicle in driver’s side resulting in driver side airbag deployment; assessment of permanent impairment cervical spine and right upper extremity; claimant suffered C1 arch fracture assessed at 5% and first right rib fracture; issue of right shoulder injury and impairment; documented complaint of right shoulder pain at hospital and x-ray undertaken; injury consistent with right sided trauma; discussion of trauma to first right rib and associated soft tissues trauma to muscles affecting the right shoulder; absence of treatment to right shoulder until late 2022; claimant found consistent on examination; records in mid-2022 indicated existing right shoulder symptoms; medical explanation for right shoulder soft tissue injury; claimant accepted on right shoulder injury and motor accident materially contributed to present impairment; Held – claimant assessed at 13% permanent impairment due to physical injuries; additional 1% for right ear tinnitus from assessment not subject to review; medical assessment confirmed as over 10%.

Decision date: 1 March 2024 | Panel Members: Principal Member John Harris, Dr David Gorman, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Assan-Larry v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 124

Permanent impairment not greater than 10%; post-traumatic stress disorder; reasonable cause to suspect medical assessment was incorrect; consideration of claimant’s treating medical practitioners; psychiatric impairment rating scale; mental state examination; no abnormal psychomotor activity; no evidence of psychosis; criteria for major depressive disorder; effective and improved symptoms and function; relevant guides and guidelines; Held – Certificate of Medical Assessor revoked.

Decision date: 4 March 2024 | Panel Members: Member Hugh Macken, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural

Harris v AAI Limited t/as AAMI [2024] NSWPICMP 125

Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Herald’s decision that treatment (including knee replacement surgery) was not reasonable and necessary and not related to the injuries caused by the accident; claimant hit from the left and fell off his motor bike onto his right side on 16 May 2020; hospital notes and GP records did not record any specific right knee symptoms for 13 months after the accident; claimant had previous right knee injury and some symptoms a few years before the accident; claimant had advanced osteo-arthritis in the right knee and needed the surgery and related treatment which the Panel found reasonable and necessary in the circumstances however the Panel determined that the surgery (and related treatment) was not caused by the accident due to the claimant’s pre-accident history, the absence of specific knee complaints for six months after the accident and no record of knee complaints until 13 months after the accident; Held – Medical Assessor’s certificate confirmed.

Decision date: 5 March 2024 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Sophia Lahz | Injury module: Treatment Type: Surgery and Physiotherapy Treatment

El-Rifai v QBE Insurance (Australia) Limited [2024] NSWPICMP 126

Claimant was driving a car and wearing a seatbelt when he was rear-ended by another car; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s spine, shoulders and right knee affirmed; original medical certificate regarding proposed treatment and care of right shoulder surgery revoked; proposed treatment and care does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances; on review, the Panel found that the injuries to the claimant’s cervical spine, thoracic spine, lumbar spine left and right shoulders and right knee are all soft tissue injuries caused by the motor accident and are threshold injuries.

Decision date: 6 March 2024 | Panel Members: Member Ray Plibersek, Dr Ian Cameron, and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb; Treatment Type: Surgery

Workers Compensation Medical Appeal Panel Decisions

Delaney v Cessnock City Council [2024] NSWPICMP 127

The appellant submitted that the Medical Assessor (MA) erred in his whole person impairment (WPI) assessment of activities of daily living; the Panel agreed; the Panel notes that the MA documents clinical findings of stiffness in his lumbar spine, and evidence of left sided radiculopathy with positive sciatic tension and associated with this, muscle wasting and weakness and sensory changes involving L5 and S1 nerve roots; the totality of the evidence is strongly suggestive of a 2% WPI; Held – Medical Assessment Certificate revoked.

Decision date: 7 March 2024 | Panel Members: Member Deborah Moore, Dr Christopher Oates, and Dr Alan Home | Body system: Spine

Martin v Dare Disability Support Limited [2024] NSWPICMP 128

Whether Medical Assessor (MA) provided adequate reasons, and thereby erred, with respect to his finding that the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; whether MA applied incorrect criteria in assessing the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; Appeal Panel held that the MA’s reasons were inadequate and that as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel found however that based on the material before it, and for the reasons the Appeal Panel explained in its statement of reasons, the degree of the appellant’s permanent impairment was not fully ascertainable and hence the demonstrable error made no difference to the outcome; Held – MAC confirmed.

Decision date: 7 March 2024 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr John Baker | Body system: Psychological/Psychiatric

Secretary, Department of Education v Gray [2024] NSWPICMP 129

Psychological injury; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale, namely, travel; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.

Decision date: 7 March 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Liu v State of New South Wales (NSW Police Force) [2024] NSWPICMP 130

Primary psychological injury deemed to have occurred on 1 November 2010; appellant worker appealed the psychiatric impairment rating scale categories of social and recreational activities and social functioning; statement of appellant worker concerning the Medical Assessor’s (MA) examination not admitted; Appeal Panel found no error in the MA’s assessment of social and recreational activities and social functioning; Held – Medical Assessment Certificate confirmed.

Decision date: 11 March 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Secretary, Department of Planning, Industry and Environment v Dixon [2024] NSWPICMP 131

Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from 15% claim for psychological injury; whether obvious mathematical error should be resolved in one party’s favour or the other; whether adequate reasons were given for the categories assessed in the psychiatric impairment rating scale (PIRS) chart; whether subsequent traumas had been properly considered; Held – mathematical error probably amenable to section 325(3), but adequate reasons not given for the PIRS impairments, and Medical Assessor misunderstood effect of employer’s qualified expert regarding subsequent traumatic events, therefore re-examination conducted; Medical Assessment Certificate confirmed: observations about the effect of Secretary, Department of Education v Johnson on assessment of subsequent injuries.

Decision date: 11 March 2024 | Panel Members: Member John Wynyard Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Dial A Dump (EC) Pty Limited v Swain [2024] NSWPICMP 132

The appellant submitted that the Medical Assessor (MA) erred because the worker has provided differing histories of activities of daily living to MA Burns in Medical Assessment Certificate (MAC) dated 14 June 2023 and MA Shen dated 11 September 2023; the differing histories raises serious doubts as to the psychiatric impairment rating scale classes relating to self-care and personal hygiene, social functioning, and concentration, persistence, and pace; the Panel agreed; re-examination arranged; Held – MAC revoked.

Decision date: 11 March 2024 | Panel Members: Member Deborah Moore, and Dr Nicholas Glozier, Dr John Baker | Body system: Psychological/Psychiatric

Department of Communities and Justice v Virtue [2024] NSWPICMP 133

Employer appealed on the basis of calculation error and the extent of the deductible proportions made for pre-existing injury, condition or abnormality; the calculation error was corrected by the Appeal Panel, otherwise the deductions made by the Medical Assessor were upheld; Held – Medical Assessment Certificate revoked.

Decision date: 12 March 2024 | Panel Members: Member Jane Peacock, Dr James Bodel, and Dr Mark Burns | Body system: Right Lower Extremity, Left Lower Extremity, and Scarring (TEMSKI)

Buildsafe Sydney Pty Ltd v Stanford [2024] NSWPICMP 134

Appeal in respect of assessment of right upper extremity (shoulder), scarring (TEMSKI) and assessment of chronic pain in right ankle and foot; Panel found no error in assessment of right shoulder or scarring; Panel accepted that the Medical Assessor erred in assessing impairment based on loss of movement in right ankle and foot after finding that the worker did not have chronic regional pain syndrome 1 in circumstances where the parties agreed that there be an award for the respondent in respect of the allegation of injury to the right foot; Held – Medical Assessment Certificate revoked.

Decision date: 13 March 2024 | Panel Members: Member Carolyn Rimmer, Dr David Crocker, and Dr Drew Dixon | Body system: Right Upper and Lower Extremity, and Scarring (TEMSKI)

Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWPICMP 135

Whether Medical Assessor (MA) considered appellant’s statement; whether MA had regard to irrelevant consideration when rating appellant’s impairment in psychiatric impairment rating scale (PIRS) for concentration, persistence and pace; whether MA took into account all relevant matters when rating appellant’s impairment in PIRS for concentration, persistence and pace; Appeal Panel held MA had regard to all relevant evidence and took into account all relevant matters and did not consider any irrelevant matters; Held – Medical Assessment Certificate upheld.

Decision date: 13 March 2024 | Panel Members: Member Marshal Douglas, Dr Ash Takyar, and Dr Graham Blom | Body system: Psychological/Psychiatric

Wood v Campbelltown City Council [2024] NSWPICMP 136

Whether Medical Assessor (MA) erred by rating appellant’s impairment in psychiatric impairment rating scale for employability as class 2 rather than class 3; Appeal Panel held MA erred; Held – Medical Assessment Certificate revoked.

Decision date: 13 March 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

El-Jajieh v AAI Limited t/as AAMI [2024] NSWPICMR 5

Motor Accident Injuries Act 2017; merit review on preliminary issues in miscellaneous assessment application for reinstatement of claim under section 6.26(7) for claimant failing to comply with section 6.26(1) direction to provide particulars of her claim that comply with section 6.25; parties agreed that merit reviews must be resolved before miscellaneous assessment; insurer has foreshadowed applying for exemption from the Personal Injury Commission if the claim is reinstated due to issues of credit; reviewable decision is section 6.26 direction dated 25 November 2022; merit review under schedule 2(1) (x) and (z); the merit reviewer must assess whether the claimant has provided the insurer with all relevant particulars about a claim following section 6.25 and whether the insurer is entitled to give a direction to the claimant under section 6.26; Motor Accident Guidelines 8.2 clauses 4.119 and 4.120 authorise issuing section 6.26 directions and mandate examining what information is already available before seeking further information; parties provided copies of material available before section 6.26 direction was issued; merit reviewer must assess whether that material was sufficient to properly assess full value of the claim; clause 4.120 requires insurer to consider available material before requesting information; evaluation of evidence; claimant answered requests for particulars; provided information about how accident occurred, loss of earnings and injuries; claimant also provided authorities to insurer to obtain employment, medical and academic information; insurer proposed joint medical examination before issuing section 6.26 direction; section 6.26 disputes not about statutory benefits; limited to regulated costs; assessment via Teams with claimant questioned; correct and preferable; promote purpose of the MAI Act; Held – decision maker must consider whether claimant has satisfied section 6.25 and not whether claimant has failed to answer insurer’s specific request for particulars; insurer’s decision to issue a direction under section 6.26 is set aside; claimant provided all relevant particulars about her claim before 25 November 2022 and the insurer is not entitled to issue a direction to the claimant under section 6.26; claimant’s costs for these merit reviews are assessed at 16 monetary units for each merit review in accordance with the Motor Accident Injuries Regulation 2017; parties jointly applied for claims exemption following section 7.34; grounds satisfy Rule 99 (3) (a), (b) and (e) Personal Injury Commission Rules; complex factual liability and damages issues; recommended to Motor Accident Division Head to exempt claim.

Decision date: 15 February 2024 | Merit Reviewer: Terence O’Riain

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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