Legal Bulletin No. 157

Issued 19 April 2024

Welcome to the one hundred and fifty 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

Tasevski v Westpac Banking Corporation [2024] NSWSC 401

Administrative law; judicial review of decision of medical appeal panel; medical dispute under Workplace Injury Management and Workers Compensation Act 1998; where medical assessor’s assessment upheld by appeal panel; where appeal panel erred by misunderstanding the applicable legal test; whether panel failed to exercise its statutory functions according to law; whether same conclusion would have been arrived at regardless of error; Held – Appeal Panel’s decision is set aside; matter remitted for reconsideration by different Appeal Panel.

Decision date: 18 April 2024 | Before: Schmidt AJ

Presidential Member Decision

Hanson v Wilke and Company Pty Ltd [2024] NSWPICPD 20

Workers compensation; Section 261 of the Workplace Injury Management and Workers Compensation Act 1998; compensation sought in respect of alleged injury that occurred over 23 years prior; whether employer paid taxi fare for worker to attend hospital after incident; whether seeking payment of taxi fare to hospital constituted giving notice of injury; Held – the Senior Member’s Certificate of Determination dated 26 May 2023 is confirmed.

Decision date: 10 April 2024 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

CIC Allianz Insurance Limited v Leighton [2024] NSWPIC 102

Motor Accident Injuries Act 2017; the claimant alleges injury in a motor vehicle accident on 22 December 2018; insurer sought exemption of claim under section 7.34(1)(b) on the basis it is alleged the claimant has made a false or misleading statement in a material particular; alleged false or misleading statement in respect of reasons for termination of employment; inability to drive and substance abuse; Held – application relates to credibility of claimant; Insurance Australia Limited t/as NRMA v Banos cited; not satisfied assessment process would afford both parties a hearing which in a practical sense is fair; as per IAG Ltd t/as NRMA Insurance v Abiad it is appropriate that the insurer’s claims be tested in a courtroom where evidence is given under oath and the rules of evidence apply; recommend claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 8 March 2024 | Member: Susan McTegg

Romero v CIC Allianz Insurance Limited [2024] NSWPIC 113

Motor Accident Injuries Act 2017; damages assessment; where 37-year-old claimant was injured when a taxi collided with her on a pedestrian crossing; liability wholly admitted; assessment for past and future economic loss; pre-existing condition; multiple sclerosis; impact of pre-existing condition on capacity to earn; impact of injuries on capacity to earn; increase in vicissitudes; Wilson v Peisley considered; damages for accommodation and travel; sub-section 4.5 (1)(b); Held – damages for past and future economic loss assessed at $431,394 and no award for accommodation and travel expenses.

Decision date: 11 March 2024 | Member: Maurice Castagnet

QBE Insurance (Australia) Limited v Blakeney [2024] NSWPIC 148

Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; Held – a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommendation to exempt the claim; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 13 March 2024 | Member: Terence O’Riain

Fasanella v AAI Limited t/as GIO [2024] NSWPIC 162

The claimant sustained catastrophic injury in a motor vehicle accident on 1 September 2020; liability denied by the insurer; quantum of claim agreed; dispute as to liability listed for assessment on 4 April 2024; claimant sought attendance of insured driver; insured driver refused to give evidence at the assessment conference; rule 99(3) of the Personal Injury Commission Rules includes whether the claim involves issues of liability including contributory negligence, fault or causation; Held – no power to compel the attendance of witnesses in the Personal Injury Commission; complex issues of liability; court hearing provides subpoena power to secure attendance of insured driver; assessment process not afford both parties a fair hearing; claim not suitable for assessment; exemption recommended; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 26 March 2024 | Member: Susan McTegg

Javed v Allianz Australia Insurance Limited [2024] NSWPIC 163

Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claim for damages for past and future economic loss; no entitlement to damages for non-economic loss; where the claimant was staying in Australia on a temporary student visa to complete his studies as an international student; Held – proposed settlement of $165,000 is approved.

Decision date: 2 April 2024 | Member: Maurice Castagnet

AAI Limited t/as GIO v De Jong [2024] NSWPIC 170

Motor Accidents Compensation Act 1999; damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; struck by motorcycle; liability admitted by insurer; no entitlement to damages for non- economic loss; Reece v Reece and Varga v Galea applied; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 9 April 2024 | Member: Terence Stern OAM

AAI Limited t/as GIO v Newing [2024] NSWPIC 171

Motor Accident Injuries Act 2017; settlement approval in the sum of $51,200; 28-year-old male; past and future economic only; no entitlement to non-economic loss; tiny avulsion fracture; right ankle now healed; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 9 April 2024 | Member: Shana Radnan

Kaur v Transport Accident Commission [2024] NSWPIC 177

Motor Accident Injuries Act 2017; claims assessment dispute; claim for damages submitted to insurer at the same time the claim was referred to the Personal Injury Commission under division 7.6 for assessment; no particulars or relevant documentation provided when the claim was lodged; no offer of settlement or invitation to engage in settlement discussions; whether the claimant had complied with section 7.32 (3 ); meaning of “best endeavours”; whether proceedings should be dismissed’ Held –for the purposes of section 7.32(3) the claimant failed to use her best endeavours to settle a claim before referring it for assessment under division 7.6; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020.

Decision date: 10 April 2024 | Member: David Ford

QBE Insurance (Australia) Limited v Jackson [2024] NSWPIC 178

Motor Accident Injuries Act 2017; settlement approval in the sum of $48,661; 43-year-old female; past and future economic only; no entitlement to non-economic loss; past history of depression 10 years; whole person impairment 5%; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 10 April 2024 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Brennan v BWP [2024] NSWPIC 165

Workers Compensation Act 1987; psychological injury; claim for weekly compensation; causation; whether injury the result of discipline; 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; actions of the respondent not deemed to be ‘discipline’ and/or in the alternatively were not reasonable; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37 and section 60 medical expenses.

Decision date: 4 April 2024 | Member: Diana Benk

Pockran v Toll Holdings Ltd t/as Toll Transport Pty Ltd [2024] NSWPIC 166

Workers Compensation Act 1987; claim for section 60 past and future medical expenses for injury to right lower extremity (right knee); respondent disputes right knee injury, notice of injury, notice of claim, substantial contributing factor and reasonable necessity of the claimed section 60 expenses; consideration of applicant’s statements, respondent’s statements, medical reports and other treatment records, claim correspondence and documents; considered Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Hancock v East Coast Timber Products Pty Ltd, Krstevska v Fast Fluid Management Australia Pty Ltd,and Mason v Demasi; Held – the applicant injured his right knee on 9 June 2021 during the course of his employment with the respondent; the applicant’s employment with the respondent was a substantial contributing factor to his right knee injury; the applicant has established special circumstances pursuant to section 254(3)(a) and section 254(3)(b) of Workplace Injury Management and Workers Compensation Act 1998 in relation to notice of injury and reasonable cause pursuant to section 261(4) of the 1998 Act in relation to making a claim for compensation.

Decision date: 4 April 2024 | Member: Anne Gracie

BFZ v Inner West Council [2024] NSWPIC 167

Workers Compensation Act 1987; the applicant relied on a series of events at work; many of the events occurred; perception by worker that they were directed at her; applicant suffered from an underlying psychiatric condition which included symptoms of paranoia; misperception; Application of A-G v K; finding of injury pursuant to section 4(b)(ii); discussion of AV v AW; respondent failed to discharge onus that actions with respect to discipline wholly or predominantly caused injury; medical opinion did not consider other work events which were causative of injury; Held – finding of injury pursuant to section 4(b)(ii); section 11A defence failed; section 66 claim remitted to Medical Assessor.

Decision date: 5 April 2024 | Principal Member: John Harris

Arnold v Hyne & Son Pty Ltd [2024] NSWPIC 168

Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66, and weekly benefits, as a result of an undisputed injury to the lumbar spine in the course of the applicant’s employment with the respondent, and disputed conditions in the thoracic spine and left and right upper extremities (shoulders) consequent upon the lumbar spinal injury; the lumbar spinal injury required surgery; the condition in the thoracic spine was claimed to result from muscle guarding, and restriction of movement, in the thoracic spine; the conditions in the left and right shoulders were claimed to result from multiples falls experienced by the applicant as a result of the lumbar spinal injury; detailed examination of the treating and qualified medical evidence, along with the applicant’s evidence; finding that the conditions in the thoracic spine and shoulders were consequent upon the lumbar spinal injury; matter referred to a Medical Assessor for assessment of permanent impairment as a result of the injury to the lumbar spine, conditions in the thoracic spine and left and right upper extremities consequent upon the lumbar spinal injury, and scarring (TEMSKI); Held – applicant’s claim for weekly benefits deferred until after issue of the Medical Assessment Certificate and expiration of the appeal period in respect thereof.

Decision date: 5 April 2024 | Member: Brett Batchelor

Hong v GGPB Power Pty Ltd [2024] NSWPIC 169

Claim for weekly payments of compensation, medical expenses and permanent impairment for psychological injury, and medical expenses for damage to the teeth as a result of a physical altercation with a co-worker in the workplace; respondent disputes that injury was sustained arising out of or in the course of employment as worker abandoned his employment due to his actions; reference to Schinnerl v Commissioner of Police, Makko v Bullock Manufacturing Pty Ltd, and Stojkovic v Telford Management Pty Ltd; in the alternative, respondent relies on defence of the worker’s injury being solely attributable to serious and wilful misconduct; Held – upon review of the evidence, including five witnesses to the altercation, the worker acted outside the scope of his employment when he sustained injury; the worker has failed to establish that he sustained injury arising out of or in the course of his employment; award for the respondent.

Decision date: 8 April 2024 | Member: John Isaksen

Yu v Ensign Services Pty Ltd [2024] NSWPIC 172

Claim for weekly benefits; respondent alleges effects of accepted right shoulder injury have passed, and disputes alleged consequential conditions to the right wrist and hand, cervical spine and a secondary psychological condition; respondent alleges applicant instead demonstrates abnormal illness behaviour; Held – the respondent has the onus of demonstrating the effects of an accepted injury have ceased; Commonwealth v Muratore and University of New South Wales v Brooks referred to; the balance of the medical evidence supports a finding the applicant has suffered post-surgical frozen shoulder and that the effects of her injury are ongoing; the applicant has suffered consequential conditions to her right hand and wrist as a result of her injury; award for the respondent on the claim for consequential condition to the cervical spine; award for the respondent on the claim for secondary psychological condition.

Decision date: 9 April 2024 | Member: Cameron Burge

Diakanastasis v Secretary, Department of Education [2024] NSWPIC 173

Workers Compensation Act 1987; worker worked at Penrith for four days per week and for one day per week at Revesby; he was involved in a motor vehicle accident when travelling to work at Revesby; dispute as to whether the worker was in the course of employment when he sustained an injury whilst traveling from his abode to Revesby; alternatively, whether there was a real and substantial connection between the worker’s employment and the motor vehicle accident; sections 4 and 10 (3A); Henderson v Commissioner of Railways WA, Green v Secretary, Department of Education, NSW Police Force v Cox, Bina v ISS Property Services Pty Ltd, Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden, State Super Financial Services Australia Limited v McCoy,and Field v Department of Education and Communities discussed and applied; Held – the worker was on a daily or period journey when he sustained injury; there was no real and substantial connection between the deceased’s employment and the motor vehicle accident in which he was injured; award for the respondent.

Decision date: 9 April 2024 | Principal Member: Glenn Capel

Roeser v AKM Earth Pty Ltd [2024] NSWPIC 174

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained injury to the cervical spine; whether C5/6 and C6/7 anterior cervical discectomy and fusion surgery proposed by Dr Neil Cochrane in his report dated 18 July 2023 is reasonably necessary medical treatment; Held – on 22 August 2018, the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a pre-existing cervical spine condition and his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; injury to the cervical spine established pursuant to section 4; C5/6 and C6/7 anterior cervical discectomy and fusion surgery is reasonably necessary medical treatment pursuant to section 60.

Decision date: 9 April 2024 | Member: Sophie Jones

Hartley v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 175

Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation and hearing aids in relation to industrial deafness; fact of injury not disputed; applicant brings proceedings against nominal insurer and employer; onus is on the applicant to show employer was uninsured at deemed date of injury (in this instance 1 January 1980); employer leads uncontested evidence that it had insurance at relevant time, but owing to effluxion of time, the identity of the insurer is unknown; applicant’s solicitor undertook searches with some of the 62 insurers who provided cover at the relevant time to no avail; the claim was disputed by both respondents on the basis it was made out of time per section 261; the applicant alleged he was ignorant of his rights to make a claim until receipt of an IME report shortly before the making of the claim; however, the evidence demonstrated he had twice consulted with a solicitor as long ago as 2017 and was informed at that time he could make a claim provided he presented the solicitor with evidence of employment; no explanation was provided for the delay between the provision of that advice and the making of the claim in or about 2019; Held – the applicant has not discharged the onus of proving the first respondent was uninsured at the deemed date of injury; award for the second respondent; the applicant had knowledge of his rights to bring a claim in 2017 but did not do so until 2019; the claim was therefore made out of time against both respondents; award for the second respondent.

Decision date: 9 April 2024 | Member: Cameron Burge

Uborg v Maranoa Haulage Pty Ltd [2024] NSWPIC 176

Workers Compensation Act 1987; claim for complex regional pain syndrome (CRPS); whether medical dispute existed; whether Commission could make section 66 order without remittal to Medical Assessor; Held – the alleged dispute was an attempt by the respondent’s legal advisor to distance the respondent from the opinion of its expert witness; all medical experts in agreement that CRPS is the appropriate diagnosis; respondent misunderstood their expert’s response to a question; Etherton v ISS Property Services Pty Ltd, The Star Entertainment Group Ltd v Samaan and first instance cases cited; Table 17.1 of the Guides considered; section 319 of the Workplace Injury Management and Workers Compensation Act 1998 considered; Procedural Direction PIC 6 applied; award applicant for section 66 claim.

Decision date: 9 April 2024 | Member: John Wynyard

Watts v State of New South Wales (NSW Police Force) [2024] NSWPIC 179

Workers Compensation Act 1987; claim for accepted psychological injury and disputed consequential thyroid condition; claim for treatment expenses pursuant to section 60 in relation to total thyroidectomy surgery; consideration of medical reports and other treatment records, claim correspondence, medical literature, and factual material; consideration of whether the need for the applicant’s total thyroidectomy surgery on 21 February 2023 was materially contributed to by his accepted psychological injury from his employment with the respondent, in order to make the respondent liable to compensate the applicant regarding the costs of and incidental to the surgery; Murphy v Allity Management Services Pty Limited, Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Limited, Kumar v Royal Comfort Bedding Pty Limited, Kooragang Cement Pty Ltd v Bates, DGL (Aust) Pty Limited v Martino, Moriarty-Baes v Office Works Superstores Pty Limited, Fisher v Nonconformist Pty Limited, Hancock v East Coast Timber Products Pty Limited, Roads and Traffic Authority v Royal, Amaca Pty Limited v Ellis,and Drca v KAB Seating Systems Pty Ltd considered; Held – the applicant has sustained a consequential condition to his thyroid resulting from his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent; the total thyroidectomy surgery performed upon the applicant by Professor Sidhu on 21 February 2023 was reasonably necessary treatment for the applicant, and was materially contributed to by his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent; the respondent is liable to compensate the applicant for the expenses paid by him of and incidental to the total thyroidectomy surgery; award for the applicant in the amount of $6,000 (with leave given to the respondent to approach the Commission should this amount exceed appropriate scale costings) pursuant to section 60 in this regard.

Decision date: 10 April 2024 | Member: Gaius Whiffin

Princehorn v Port Hunter Cranes Pty Ltd [2024] NSWPIC 180

Claim for proposed surgery for left ankle; liability dispute for left ankle; factual and medical causation; Kooragang Cement Pty Ltd v Bates referred to; Held – left ankle injury sustained in course of employment; respondent to pay for cost of surgery.

Decision date: 10 April 2024 | Member: Michael Wright

Motor Accidents Medical Review Panel Decisions

Toumeh v Allianz Australia Insurance Limited [2024] NSWPICMP 121

Claimant was a front seat passenger in a car doing a three-point turn when her car was hit by another car; 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 shoulder of partial rupture of tendons were caused by the motor accident and are non-threshold injuries; neither party disputed the original Medical Assessor’s determination regarding the treatment and care dispute of a cortisone injection to the left shoulder which was found to relate to the injury caused by the motor accident and is reasonable and necessary; Held – original medical certificate regarding permanent impairment revoked.

Decision date: 1 March 2024 | Panel Members: Member Ray Plibersek, Dr Christopher Oates, and Dr Drew Dixon | Injury module: Spine, Upper Limb, Brain Injury; Treatment Type: Facet Join Injections

Dyer v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 149

Review of decision of Medical Assessor (MA) Shen of 3 October 2024 who found the claimant had a 6% whole person impairment (WPI) assessment for psychiatric disability; application for review by claimant; claimant injured in an accident on 1 July 2018 when the driver of a car travelling in the opposite direction lost control and collided with the claimant who was a front seat passenger teaching her daughter how to drive a car; claimant diagnosed with somatic symptom disorder with predominant pain and post-traumatic stress disorder related to the accident and exacerbation of major depressive disorder with ongoing major depressive episode; issue of whether the claimant had a pre-existing psychiatric diagnosis of major depressive disorder and substance use disorder disparity of assessments between psychiatric specialists; claimant affected by functional neurological disorder but this not taken into account by the Panel as it was not a psychiatric diagnosis; Held – that claimant had persistent depressive disorder and WPI of 8%; certificate of MA Shen revoked.

Decision date: 13 March 2024 | Panel Members: Member Alexander Bolton, Dr Matthew Jones, and Dr Michael Hong | Injury module: Mental and Behavioural

Simkovic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 191

Medical review of certificate of Medical Assessor (MA) Home; the claimant suffered injury in a motor vehicle accident on 20 November 2020; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine, left shoulder, right knee and left hand; MA Home certified 5% WPI cervical spine; 0% WPI lumbar spine and 5% WPI left shoulder; total WPI 10%; abnormal posture and muscle spasm of left trapezius consistent throughout 90 minute examination; elements of chronic pain syndrome; soft tissue injury to cervical spine and lumbar spine caused by accident; soft tissue injury to left shoulder with subacromial bursitis and supraspinatus tendinosis to each shoulder; soft tissue injury to right knee; injury to left hand not caused by accident; 5% WPI cervical spine; 5% WPI lumbar spine; 13% WPI left shoulder; Held – certificate of MA Home revoked; injuries caused by accident give rise to 21% WPI.

Decision date: 19 March 2024 | Panel Members: Member Susan McTegg, Dr Michael Couch, and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

Li v Allianz Australia Insurance Limited [2024] NSWPICMP 192

Motor Accident Injuries Act 2017; threshold dispute; claimant’s mother died in a motor vehicle accident; claimant called to scene; witnessed severe injuries and subsequent death; no pre-existing history and no other subsequent causes for psychological symptoms; claimant re-examined; clinical expertise of the Medical Assessors; discussion of DSM-5 for diagnosis of post-traumatic stress disorder and major depression; Panel satisfied that motor accident caused these psychological disorders; Held – Medical Assessment Certificate revoked; claimant suffered non threshold psychological injury.

Decision date: 2 April 2024 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr John Baker | Injury module: Mental and Behavioural

Buckley v Transport Accident Commission [2024] NSWPICMP 193

Motor Accident Injuries Act 2017; threshold dispute; claimant/passenger involved in a motor accident on 3 July 2019 when vehicle lost traction, ran off road and rolled over; chronic pre-existing history of post-traumatic stress disorder; issue whether the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; claimant re-examined; clinical expertise of the Medical Assessors was that the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; AAI Ltd v Hoblos and Todev v AAI Ltd applied; aggravation of post-traumatic stress disorder constituted a non-threshold injury; Held – Medical Assessment Certificate revoked; claimant suffered non-threshold psychological injury.

Decision date: 2 April 2024 | Panel Members: Principal Member John Harris, Dr Glen Smith, and Dr Michael Hong | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Cobcroft v Mushroom Composters Pty Ltd [2024] NSWPICMP 196

Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) erred by making a deduction of 4/10th under section 232(1) for proportion of appellant’s permanent impairment that was due to a pre-existing condition; Appeal Panel held MA did not make any error; Held – Medical Assessment Certificate upheld.

Decision date: 4 April 2024 | Panel Members: Member Marshal Douglas, Dr Drew Dixon, and Dr Mark Burns| Body system: Right Lower Extremity and Scarring

Randstad Pty Ltd v Ali [2024] NSWPICMP 197

Whether Medical Assessor (MA) erred by not finding that a proportion of the appellant’s permanent impairment from an injury to the appellant’s lumbar spine was due to pre-existing degeneration in appellant’s lumbar spine; Appeal Panel held MA was not in error as the appellant’s lumbar spine injury was a disc prolapse at L5/S1 that required a microdiscectomy following which the appellant continued to have radiculopathy; the appellant’s permanent impairment was assessed on that basis, and his pre-existing condition did not contribute to that impairment; Held – Medical Assessment Certificate upheld.

Decision date: 4 April 2024 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer, and Dr Tommasino Mastroianni | Body system: Spine

Stacey v Secretary, Department of Education [2024] NSWPICMP 198

Appeal from nil finding for cardiovascular impairment; appellant suffered complications from knee surgery which resulted in DVT and other complications, including more knee surgery: whether referral terms appropriate; whether adequate reasons given; whether correct criteria applied; Held – the referral terms were those pleaded in the ARD; usual practice of referrals by Commission noted; Medical Assessor (MA) stated ‘not applicable’ in answer to templated invitation to comment on other material; MA referred to inappropriate chapter of the Guides in his Table 2 Certificate; examination findings queried; error established, El Masri v Woolworths Ltd considered and applied; appellant re-examined; Medical Assessment Certificate revoked.

Decision date: 4 April 2024 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Richard Haber | Body system: Cardiovascular System

Opera Services Pty Ltd v Williams [2024] NSWPICMP 199

Injury to cervical spine, lumbar spine and gastrointestinal tract; employer appealed; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.

Decision date: 5 April 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Doron Sher | Body system: Spine and Upper and Lower Gastro-Intestinal Tract

Lachlan Shire Council v Cunningham [2024] NSWPICMP 200

Psychological injury; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale, namely, employability and error in failing to make a deduction for a pre-existing condition, abnormality or injury; no error found; Held – Medical Assessment Certificate confirmed.

Decision date: 5 April 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Bunnings Group Limited v Kennedy [2024] NSWPICMP 201

Appeal from decision of Medical Assessor (MA); whether assessment made on basis of incorrect criteria and contains a demonstrable error; the dispute referred to the MA by the Commission was for bilateral upper extremities; the MA included in his assessment a component for bilateral shoulders, however, the respondent’s claim was not made in relation to any shoulder impairment; the appellant employer appealed; the respondent opposed the appeal and also sought leave to amend the claim to plead a bilateral shoulder impairment; Held – leave to amend refused; to allow an amendment post-Medical Assessment Certificate (MAC) in circumstances where the appellant did not have the opportunity to examine and assess the shoulders would be against the principles of procedural fairness and natural justice; the MAC contains a demonstrable error and was decided on incorrect criteria; MAC dated 23 August 2023 revoked, and a new Certificate issued.

Decision date: 5 April 2024 | Panel Members: Member Cameron Burge, Dr James Bodel, and Dr Alan Home | Body system: Left Upper Extremity

George Weston Foods Ltd v Khaled [2024] NSWPICMP 202

Workplace Injury Management and Workers Compensation Act 1998; right upper extremity injury; appeal by the employer worker concerned absence of a section 323 deduction by the Medical Assessor (MA); a section 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed; the pre-existing condition has not contributed to the overall level of permanent impairment assessed because of the approach taken by the MA in using the contralateral limb (left upper extremity) as the baseline for assessment of the right upper extremity; Held – Medical Assessment Certificate confirmed.

Decision date: 9 April 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, Dr Gregory McGroder | Body system: Right Upper Extremity and Scarring

Transport of NSW v El-Harris [2024] NSWPICMP 203

Hearing loss due to occupational noise exposure; employer appealed on the basis of a failure to take account of hearing loss in employment outside of New South Wales by making a deduction or apportionment; Appeal Panel found no error; 46-year employment history of noisy employment since 1971; if noise induced hearing loss is considered to have occurred over the whole of this period, the contribution of any pre-existing injury in the period between 1972 and 1974 to the level of permanent impairment assessed as a result of injury deemed to have occurred in 2017 after 40 years of exposure to noise in the employ of the appellant, is negligible and should not be appropriately the subject of a deduction or apportionment in the circumstances of this case; Held – Medical Assessment Certificate confirmed.

Decision date: 9 April 2024 | Panel Members: Member Jane Peacock, Dr Raj Thandavan, Dr Robert Payten | Body system: Hearing

Sydney Trains v O'Sullivan [2024] NSWPICMP 204

Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed 8% whole person impairment (WPI) of the right upper extremity, 8% WPI of the left upper extremity and 2% WPI for scarring and made no deduction pursuant to section 323; Panel satisfied MA erred in incorrectly assuming that a prior injury to the right shoulder was included in the referral and in not making a deduction under section 323; Panel made a deduction of one fifth in respect of the right shoulder for prior injury pursuant to section 323; Held – Medical Assessment Certificate revoked.

Decision date: 9 April 2024 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni, and Doron Sher| Body system: Left and Right Upper Extremity, and Scarring

Tuicomia v Secretary, Department of Education [2024] NSWPICMP 205

Right upper extremity and left upper extremity injury; right upper extremity assessed by the Medical Assessor but left upper extremity found to have not reached maximum medical improvement (MMI); worker appealed the finding of not MMI; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked.

Decision date: 9 April 2024 | Panel Members: Member Jane Peacock, Dr Tommasino Mastroianni, Dr Doron Sher | Body system: Left and Right Upper Extremity

De La Rosa v Dominion Global Pty Ltd ATF Dominion Global Unit Trust [2024] NSWPICMP 206

Appellant had trigeminal neuralgia resulting from an injury of a malarial infection; the trigeminal neuralgia caused episodic symptoms; Medical Assessor (MA) found the appellant had not achieved maximum medical improvement and did not assess the degree of the appellant’s permanent impairment seemingly on the basis that the appellant’s symptoms were episodic; the issue raised on appeal was whether the MA erred by finding the appellant had not achieved maximum medical improvement; Appeal Panel found that the appellant had received extensive treatment over the course of years and his condition will likely remain the same with some periodic fluctuations for the foreseeable future; Appeal Panel held MA erred; Held – Medical Assessment Certificate revoked

Decision date: 9 April 2024 | Panel Members: Member Marshal Douglas, Dr Robin Fitzsimons, and Dr Mark Burns | Body system: Trigeminal Neuralgia

Gulliver v In-Store Merchandising Services Pty Ltd [2024] NSWPICMP 207

Workplace Injury Management and Workers Compensation Act 1998; left lower extremity injury; total knee replacement after injury; appeal by worker concerned the section 323 deduction of 2/5ths made by the Medical Assessor (MA); account must be taken of the contribution of the pre-existing condition and abnormality of the left knee to the overall level of permanent impairment assessed however deduction was excessive and at odds with the available evidence; a deduction of one-tenth was applied by the Appeal Panel; Held – Medical Assessment Certificate revoked.

Decision date: 9 April 2024 | Panel Members: Member Jane Peacock, Dr Brian John Stephenson, Dr James Bodel | Body system: Left and Right Upper and Lower Extremity

Motor Accidents Merit Review Panel Decision

Kipkorir v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMRP 2

Review of decision of Merit Reviewer (MR) Ruschen in respect of the calculation of pre-accident weekly earnings (PAWE); PAWE assessed at $460.60; question of whether earnings received on or after the day of the accident excluded from the calculation regardless of whether the work was carried out before the day of the accident; question of unidentified cash earnings; Held – on evidence of the claimant the Panel was satisfied unidentified cash earnings on building sites were gross earnings received by the claimant during the relevant period; words “the weekly average of the gross earnings received by the earner as an earner before the day of the accident” not include payment for work undertaken during the relevant period but not received until after the accident; interpretation satisfies the objects of the Motor Accident Injuries Act 2017 in promoting the recovery and return to work of those injured in accidents whilst keeping in mind the overall aim of keeping scheme premiums affordable; Project Blue Sky v ABA and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue cited; certificate of MR Ruschen revoked; PAWE certified at $815.50.

Decision date: 10 April 2024 | Merit Reviewer Panel: Susan McTegg, Elizabeth Medland, and Hugh Macken

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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