Legal Bulletin No. 158

Issued 26 April 2024

Welcome to the one hundred and fifty eighth 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 Decisions

Nilon v Berens Constructions Pty Ltd [2024] NSWPICPD 21

Workers compensation; section 4 of the Workplace Injury Management and Workers Compensation Act 1998; indicia relevant to a determination of whether a person is a ‘worker’; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; JMC Pty Limited v Commissioner of Taxation [2022] FCA 750; Secretary, Attorney General’s Department v O’Dwyer [2022] FCA 1183 applied; requirement to identify error in factual determinations; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied; Held – Member’s finding that the appellant was not a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed; appeal is dismissed.

Decision date: 15 April 2024 | Before: Deputy President Elizabeth Wood

Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22

Workers compensation; factual determinations; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied; Clause 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998; deemed worker; Scerri v Cahill (1995) 14 NSWCCR 389 applied; Held – Member’s Certificate of Determination dated 13 February 2023 is revoked; first respondent was not a deemed worker within the meaning of cl 2 Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998.

Decision date: 15 April 2024 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Strak [2024] NSWPIC 181

Assessment of damages; Motor Accidents Compensation Act 1999; self-represented claimant 75 years of age when he came off a pushbike on 2 September 2017; at date of assessment he was 81 years of age; question of mental capacity to prosecute claim where Medical Assessor (MA) Cameron suggested dementia; pre-existing injuries as a result of 11 prior accidents dating back to 1983; subsequent accident in 2021; assessed by MA Cameron at 2% whole person impairment for left shoulder; question of reliability of claimant’s evidence; Dr Teychenne diagnosed a traumatic brain injury and incomplete cervical cord lesion; Held – claimant tailored evidence to suit various claims; evidence of claimant treated with caution; not accept claimant sustained traumatic brain injury where Dr Teychenne did not have accurate history; not accepted that claimant sustained incomplete cervical cord lesion where no objective evidence on imaging and where history relied upon by Dr Teychenne to form clinical opinion is not accurate; find claimant sustained soft tissue injuries and aggravation of underlying degenerative conditions of the cervical spine, the lumbar spine and the left shoulder; damages past treatment expenses assessed at $5000; damages future treatment expenses assessed at $5000; no entitlement to past gratuitous care where no evidence care received; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd considered; future commercial assistance assessed at $10,000; disbursements assessed in favour of the claimant.

Decision date: 5 April 2024 | Member: Susan McTegg

Dinjar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 189

Motor Accident Injuries Act 2017; late claim for statutory benefits; claimant alleged neck and shoulder injuries in car accident in October 2020; claim made 33 months late in August 2023; claimant had long history of pre-accident neck and shoulder complaints and said he did not know there was a three year time limit on making a claim and that he thought he would recover from his injuries; he also said it was not until he saw a neurosurgeon who advised him to have surgery and that the accident may be to blame that the claimant considered the connection between his accident and his current state; the insurer conceded the explanation was full; Held – assessment on the papers; analysis of GP records; explanation was satisfactory and reasonable person with claimant’s background of 15 – 20 years of pain pre-accident whose symptoms improved soon after the accident but substantially deteriorated more than two years after the accident would have been justified in experiencing the same delay; costs allowed at the regulated rate; Karambelas v Zacnic, Figliuzzi v Yonan, Andriotis v NRMA, Hunter v Roberts, and Dahdah v Witte considered.

Decision date: 16 April 2024 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Davey v Awaken Coffee Van Pty Ltd [2024] NSWPIC 183

Workers Compensation Act 1987; whether the left total knee replacement surgery proposed by Dr Brighton was as a result of the left knee injury sustained by the applicant in the course of her employment with the respondent on 14 October 2020 within the meaning of section 60; Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4),and Murphy v Allity Management Services Pty Ltd considered and applied; expert evidence; Hancock v East Coast Timbers Products Pty Ltd, Makita (Australia) Pty Ltd v Sprowles,and NSW Police Force v Hahn considered; Held – the left total knee replacement surgery proposed by Dr Roger Brighton is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 14 October 2020 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the left total knee replacement surgery proposed by Dr Roger Brighton at the gazetted rates.

Decision date: 12 April 2024 | Member: Anthony Scarcella

Pilarski v State of New South Wales (NSW Police Force) [2024] NSWPIC 184

Workers Compensation Act 1987; claim for compensation benefits arising from alleged psychological injury (post-traumatic stress disorder); respondent relied on a defence under section 11A; respondent alleged that the condition resulted from reasonable actions taken by the respondent with respect to discipline or performance appraisal; Held – on the facts that the respondent did not discharge the onus of establishing that the applicant’s condition was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline or performance appraisal.

Decision date: 12 April 2024 | Member: Michael Moore

Williams v Secretary, Department of Justice [2024] NSWPIC 185

Workers Compensation Act 1987; alleged consequential condition of obesity caused by inability to exercise and pursue previous active lifestyle as a result of accepted work injury; claim pursuant to section 60 for costs of and incidental to bariatric weight reduction surgery; dispute as to the consequential condition; respondent did not dispute that the surgery was reasonably necessary for the treatment of the applicant’s obesity; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, and Kooragang Cement Pty Ltd v Bates cited; Held – that the applicant put on weight becoming morbidly obese as a result of the accepted injury sustained on 12 June 2019; that the laparoscopic mini gastric bypass surgery performed by Dr Ulvi Budak on 11 August 2021 was reasonably necessary treatment of the consequential condition of morbid obesity.

Decision date: 12 April 2024 | Member: John Turner

Ryan v Secretary, Department of Education [2024] NSWPIC 186

Workers Compensation Act 1987; the applicant claims weekly benefits resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to discipline and/or performance appraisal; the applicant’s capacity for work is also in issue; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or performance appraisal; the applicant has had no capacity for work and has entitlement to weekly compensation payable under section 37(1).

Decision date: 12 April 2024 | Member: Jacqueline Snell

Wilson v Secretary, Department of Communities and Justice [2024] NSWPIC 187

Workplace Injury Management and Workers Compensation Act 1998; application for leave to rely on un-notified matters pursuant to section 289A(4); respondent never issued dispute notice with respect to allegation of a psychological injury rather than a personal injury; respondent disputed that leave was required; in the alternative, leave sought to raise a dispute; Mateus v Zodune Pty Ltd t/as Tempo Cleaning, Federal Broom Co Pty Ltd v Semlitch, Zickar v MGH Plastic Industries Pty Ltd, Kennedy Cleaning Services Pty Ltd v Petkoska, Military Rehabilitation & Compensation Commission v May, AP v NSW Police Force, and Stone v Stannard Brothers Launch Services Pty Ltd discussed and applied; Held – particulars provided by applicant when notice of claim served; no explanation for delay; lack of merit and substance in the proposed dispute; respondent’s medical evidence lacking in probative value; prejudice to the applicant outweighed that of the respondent; leave to rely on un-notified matter refused; claim remitted to the President for referral to a Medical Assessor in respect of a psychological disease.

Decision date: 15 April 2024 | Principal Member: Glenn Capel

Formosa v BES Holdings (NSW) Pty Ltd [2024] NSWPIC 188

Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to right lower extremity (hip) and TEMSKI/scarring, with a deemed date of injury of late September 2020; whether the applicant sustained a consequential condition of the lumbar spine; Held – the applicant sustained a consequential condition of 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 the right lower extremity (hip), lumbar spine and TEMSKI/scarring.

Decision date: 15 April 2024 | Member: Karen Garner

Blackmore v G&A Blackmore Pty Ltd [2024] NSWPIC 190

Workers Compensation Act 1987; section 4(b)(ii); injury to the left hip disputed; costs of hip replacement surgery disputed; admissibility of documents; application of Way v Newcastle City Council, Gow v Patrick Stevedores No 2 Pty Limited, and Harman v Secretary of State for the Home Department; Held – additional documents not admissible as factually and legally irrelevant to the current proceedings; the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a  disease  process in the left hip within the meaning of section 4(b)(ii) arising out of or in the course of his employment with the respondent deemed to have occurred on 20 March 2023; the hip replacement surgery was/is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent within the meaning of section 60.

Decision date: 16 April 2024 | Member: Diana Benk

Corneliusen v Target Australia Pty Ltd [2024] NSWPIC 191

Workers Compensation Act 1987; claim for the cost of surgery on the applicant worker’s left shoulder as a result of an undisputed injury to the right shoulder and undisputed condition in the left shoulder consequent upon the right shoulder injury; the respondent employer declined liability relying upon section 59A(2)(ii), contending that more than two years had elapsed since the last receipt of weekly payments by the applicant; that section 59A(3) did not apply as the comments thereon by Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collett were merely obiter dicta and had no application to the current proceedings; and that in any event, the surgery proposed was not reasonably necessary as a result of injury to the right shoulder; Held – that the applicant was precluded by section 59A(2)(ii) from seeking an order for the cost of surgery; that the comments of Roche DP in Flying Solo were not obiter dicta and were relevant to the current proceedings; that the section 59A(3) applied, and that the surgery proposed on the applicant’s left shoulder was reasonably necessary as a result of injury to the right shoulder.

Decision date: 17 April 2024 | Member: Brett Batchelor

Motor Accidents Medical Review Panel Decisions

Badal v AAI Limited t/as AAMI [2024] NSWPICMP 208

Motor Accidents Compensation Act 1999; determination by Medical Assessor Kenna of 22 treatment disputes (disputes about relationship of the treatment to the accident and reasonable and necessary for 11 types of treatment); none of the treatment allowed; claimant involved in accident on 30 August 2017 and alleged injuries to her neck and lower back with symptoms in her upper and lower limbs; claimant provided radiology requested by a doctor but provided no notes in relation to that doctor; the Panel advised the claimant it would proceed on the basis that doctor had not provided any accident-related treatment and no response was received; the Panel also noted there were no medico-legal records relied on by the claimant and asked her solicitors to confirm that and no response was received; review of medical records provided indicated claimant had complaints of symptoms in most of her allegedly injured body parts before the accident, there was no mention of the accident in several consultations with the claimant’s GP in the first two weeks after the accident, claimant’s reported injuries and symptoms have varied greatly since the accident; Panel diagnosed soft tissue injuries only aggravating or exacerbating previous conditions and degenerative changes but that any exacerbation or aggravation has ceased; Held – only claim for past treatment was domestic assistance which was allowed for first 3 months after the accident; all other treatment was future treatment and Panel found not reasonable and necessary in the circumstances and not reasonable and necessary in any event; certificate revoked; AAI Limited t/as AAMI vs Phillips and Diab vs NRMA Limited applied.

Decision date: 5 April 2024 | Panel Members: Member Belinda Cassidy, Dr Sophia Lahz, and Dr David Gorman | Injury module: Treatment Type: Medical Special Consultation, Surgery, GP Consultation, Physiotherapy, Hydrotherapy, Massage, Radiological Investigation, Pain Management Program, Domestic Assistance, Other

Toomey v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 209

Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Kenna’s decision about a “threshold” injury sustained in November 2021 accident; parties agreed Panel need only consider left shoulder (SLAP tear first noted in August 2023) and right shoulder (further tear of an already torn supraspinatus) injuries; claimant’s GP wrote two reports saying claimant was well before the accident and had no complaints of shoulder pain before the accident; pre-accident GP records complaints in both left and right shoulder before the accident; claimant sustained injury in a fall nine months before the accident; attended GP eight days before the accident complaining of shoulder pain; had been prescribed Endone and Panadeine Forte and had scan of right shoulder before the accident which revealed a partially torn supraspinatus; claimant had five radiological studies after the accident with a variety of measurements of the size of the tear; most recent scan showed partial tear had progressed to full thickness tear; Held – claimant bears onus of proof to prove injury and that it is not a threshold injury; Lynch v AAI Limited and Briggs v IAG Limited followed; test of causation formulated in Guidelines applied and Briggs followed; Panel satisfied claimant could have injured her left shoulder and did sustain a soft tissue injury, but Panel not satisfied SLAP lesion identified two years after the accident was caused by the accident; Panel satisfied claimant could have injured right shoulder including further tearing the previously torn supraspinatus and that she did sustain a soft tissue injury of the right shoulder; the Panel was not satisfied that the claimant did further tear her supraspinatus in the accident; reliability of various imaging studies discussed; Certificate of MA Kenna confirmed.

Decision date: 5 April 2024 | Panel Members: Member Belinda Cassidy, Dr Mohammed Assem and Dr David Gorman | Injury module: Spine and Upper Limb

Arends v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 210

Motor Accidents Compensation Act 1999; claimant’s review under section 63 of medical assessment by Medical Assessor (MA) Home; original dispute concerned treatment and whole person impairment (WPI) of neck, back, knees and shoulders resulting from accident on 10 February 2016; pain medication treatment allowed by MA Home and WPI assessed at 7%; issues of causation due to pre-accident conditions (including total knee replacement) and subsequent accident (fall onto right shoulder) as well as limited complaints of injury made at hospital and to GP for first few months after the accident; claimant re-examined and issues of inconsistent history put to claimant in separate teleconference; Panel found neck and lower back now DRE I and 0%; no assessable impairment to right hip or right knee and no injury and therefore no impairment in left knee, right shoulder and left shoulder; Held – WPI not greater than 10% but as MA Home had included the percentage in his certificate and Panel found a different percentage, WPI certificate revoked; pain medication allowed and treatment certificate affirmed; no matter of principle.

Decision date: 5 April 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb; Treatment Type: Surgery, Physiotherapy, Domestic Assistance - Reasonable and Necessary, Medication - Prescription

Popovic v AAI Limited t/as AAMI [2024] NSWPICMP 211

Motor Accidents Compensation Act 1999; claimant’s application for review under section 63; Medical Assessor (MA) Shahzad determined claimant’s whole person impairment (WPI) at 6%; claimant alleges injuries to neck, back and shoulders in accident on 15 May 2017; no evidence of pre-accident symptoms but MA had deducted 50% of the claimant’s 12% WPI for a pre-existing condition; the insurer alleged there were no shoulder symptoms in the hospital notes and no shoulder symptoms complained of within a few months of the accident; insurer also referred to consistency issues in other examinations; Held – Panel satisfied mechanism of accident could have caused injury to the neck, back and shoulders; Panel satisfied on the contemporaneous medical records claimant did injure his neck, back and shoulders in the accident; the Panel found the claimant sustained soft tissue injuries to his cervical, thoracic and lumbar spines as well as soft tissue injuries to the left and right shoulder; cervical and lumbar spine assessed at DRE I 0%; no assessable impairment to thoracic spine; shoulders assessed by analogy due to inconsistencies of measurement at the examination and variation in measurements over time by other examiners; impairment assessed at 2% for each shoulder; claimant’s WPI not greater than 10%; certificate revoked as MA had included the 6% WPI in the certificate.

Decision date: 8 April 2024 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Caruso [2024] NSWPICMP 212

Motor Accident Injuries Act 2017; insurer’s application for review of 14% whole person impairment (WPI) assessment by Medical Assessor (NA) Nair; claimant pedestrian hit by a car on 11 January 2019; claimant alleged injuries to her neck, chest, shoulder, and lower limb; insurer had disputed assessment of 3% for “chronic trochanteric bursitis with abnormal gait” on basis claimant did not limp; medical examination found no abnormality now present in neck, minor restriction in right shoulder motion, chronic right sided trochanteric bursitis (with slow gait, difficulty hopping and some impairment to balance) and no complaints of chest or legs issues other than scarring; Held – no assessable impairment for the neck, right shoulder has 1% on range of motion method and left hip has 3%; claimant’s trochanteric bursitis was chronic (present 5 years after accident) and abnormal gait is not restricted to walking with a limp; Table 64 page 85 of AMA4 considered; when combined with 1% for the scarring impairment, claimant’s total WPI not greater than 10% and certificate of MA Nair revoked.

Decision date: 8 April 2024 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs, and Dr Margaret Gibson | Injury module: Member Belinda Cassidy, Dr Geoffrey Stubbs, and Dr Margaret Gibson

Djukic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 213

Review application of claimant of certificate and reasons of Medical Assessor (MA) Shahzad of 25 June 2023 who found a 10% whole person impairment (WPI) assessment for the cervical spine at 4% and lumbar spine at 4% and left shoulder at 2%; claimant injured in an accident on 24 February 2019 when driver of car in which claimant was a passenger lost control and collided with a tree however there was limited damage to the car; insurer submitted that the claimant had been involved in other accidents and described similar symptomatology and pain behaviours; claimant demonstrated inconsistent results on examination and Panel concerned about complaints of pain disproportionate to the nature of injury examined; Panel observed different results on day of examination to medical assessor; Held – Panel revoked certificate of MA Shahzad and found assessment of 2% WPI.

Decision date: 8 April 2024 | Panel Members: Member Alexander Bolton, Dr Sophia Lahz, and Dr Ian Cameron | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Awasthi [2024] NSWPICMP 214

The claimant was injured as she was travelling along the Princes Highway at Fairy Meadow when the insured vehicle came from the left, impacting her vehicle on the passenger side; insurer admitted liability; claimant suffered multiple fractures; claimant underwent open reduction and internal fixation of left tibial fracture; medical dispute as to extent of whole person impairment (WPI); Medical Assessor Home found 4% WPI; issue whether pelvis fracture was displaced; Review Panel required further diagnostic scan; MRI assessed at 10% including 2% for hip; Held – certificate revoked.

Decision date: 9 April 2024 | Panel Members: Member Gary Patterson, Dr Thomas Rosenthal, and Dr Drew Dixon| Injury module: Spine, Lower Limb, and Skin - Scarring

Dragas v Allianz Australia Insurance Limited [2024] NSWPICMP 215

Motor Accidents Compensation Act 1999; multiple treatment disputes; claimant involved in a motor accident on 18 November 2017; Medical Assessor (MA) Bodel determined that the proposed treatment for two right shoulder joint steroid injections were both reasonable and necessary; Medical Review Panel attended re-examination; Held – the right shoulder steroid injections were related to the subject accident and reasonable and necessary under the circumstances; the other injuries sustained in the subject accident were of a soft tissue nature on the background of underlying age-related degenerative change; certificate of MA Bodel affirmed.

Decision date: 9 April 2024 | Panel Members: Member Terence Stern, Dr Clive Kenna, and Dr Margaret Gibson | Injury module: Treatment Type: Medical Special Consultation, Surgery, and Facet Join Injections

AAI Limited t/as GIO v Dell (No 1) [2024] NSWPICMP 216

Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor (MA) Dixon’s whole person impairment (WPI) assessment of a neck and lower back injury; claimant had a 2012 lower back injury and developed cauda equina syndrome partly relieved by surgery and removal of sequestrated disc fragment; claimant riding his bicycle on 2 June 2017 when hit by a car and thrown off his bike onto the bonnet and down onto the road; claimant fractured his sacrum and developed neck pain which resolved after a few months and lower back pain which he said worsened his cauda equina symptoms; claimant had further surgery in August 2018 to remove a further piece of herniated disc at the same level as previously; insurer alleged only injury was fractured sacrum and that the claimant’s worsened cauda equina symptoms was a result of a deterioration of the original condition; insurer relied on a more than six-month gap in the records between the accident and the development of worsening symptoms; Held – Panel found the mechanism of the accident could have caused or contributed to the worsening of the claimant’s cauda equina and that it did cause or contribute to the worsening of the syndrome; the Panel accepted the claimant’s explanation for the absence of symptoms; fractured sacrum assessed at 0%; while radiology immediately after the accident showed fracture was minimally displaced, there was no subsequent evidence suggesting the fracture remained displaced; neck injury had resolved and attracted no impairment; lower back injury assessed on basis there was a previous (2018) surgery with no radiculopathy DRE IV less pre-existing impairment of DRE II on same basis (2012 surgery with no radiculopathy); WPI 10%; impairment to bladder, bowel and sexual functioning caused by the cauda equina syndrome assessed by others and also under review and considered; combined certification of greater than 10% issued; MA Dixon’s assessment of 10% WPI confirmed.

Decision date: 9 April 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr John O’Neill| Injury module: Spine

AAI Limited t/as GIO v Dell (No 2) [2024] NSWPICMP 217

Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor (MA) Korbel’s whole person impairment (WPI) assessment dated 3 November 2022; MA referred assessment of impairment to bladder and sexual functioning arising out of 2 June 2017 accident; bladder dysfunction assessed at 0% WPI and sexual dysfunction at 5% WPI; insurer challenged MA’s finding on causation based on previous cauda equina syndrome; claimant conceded bladder function similar now to what it was like at the time of the accident; claimant’s sensation in the penis similar to before the accident but his ability to maintain and sustain an erection had been affected; Held – Panel relied on Panel’s findings of causation of the lower back and worsening cauda equina injury in other proceedings; Panel assessed bladder function at same level as before the accident; 24% WPI less 24% WPI meant no WPI caused by the accident; Panel assessed sexual function at 20% and pre-existing impairment at 15%; degree of impairment caused by the accident was 5%; MA Korbel’s certificate confirmed.

Decision date: 9 April 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Geoffrey Stubbs| Injury module: Urinary and Reproductive Systems

AAI Limited t/as GIO v Dell (No 3) [2024] NSWPICMP 218

Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor (MA) Garvey’s whole person impairment (WPI) assessment dated 11 September 2023; MA referred assessment of impairment to bowel functioning arising out of 2 June 2017 accident; degree of impairment assessed was 30%; insurer challenged MA’s finding on causation based on previous cauda equina syndrome; claimant said bowel function was well controlled at time of accident and worsened after the accident; Held – Panel relied on Panel’s findings of causation of the lower back and worsening cauda equina injury in other proceedings; Panel assessed current bowel function at 35% and pre-existing impairment at 20%; degree of impairment caused by accident was 15%; MA Garvey’s certificate revoked.

Decision date: April 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr John O’Neill| Injury module: Digestive System

Workers Compensation Medical Appeal Panel Decisions

State of New South Wales (Mid North Coast Local Health District) v Hennessey [2024] NSWPICMP 219

Whether respondent suffered a subsequent condition; whether Medical Assessor (MA) had regard to deterioration of respondent’s impairment due to stressor to which respondent was exposed subsequent to her injury; whether MA had proper regard to clinical records of the respondent’s treating psychiatrist; Appeal Panel held the respondent did not suffer a subsequent condition, that the appellant’s permanent impairment resulted from her injury, and that the MA had regard to all the evidence; Held – Medical Assessment Certificate upheld.

Decision date: 11 April 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Graham Blom| Body system: Psychological/Psychiatric

Robinson v Meadowbank Education Inc [2024] NSWPICMP 220

Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale for self-care and personal hygiene and employability; Appeal Panel found no error with MA’s rating of appellant’s permanent impairment in self-care and personal hygiene but found the MA’s rating of the appellant’s impairment in employability was unsupported by the evidence and was an error; Held – Medical Assessment Certificate revoked.

Decision date: 12 April 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Ash Takyar| Body system: Psychological/Psychiatric

Campbell v State of New South Wales (NSW Police Force) [2024] NSWPICMP 221

Appellant challenged Medical Assessor’s (MA) ratings of her impairment in several psychiatric impairment rating scale (PIRS) categories; whether MA incorrectly characterised some of her activities with the consequence that the MA had regard to irrelevant matters when rating appellant’s impairment in several of the PIRS; whether MA had regard to all relevant evidence; Appeal Panel held that MA considered irrelevant matter when rating appellant’s impairment in PIRS for self-care and personal hygiene, but otherwise did not; the error of the MA when rating the appellant’s impairment in self-care and personal hygiene, when corrected, did not make a difference to the outcome; MA had regard to all relevant evidence; Held – Medical Assessment Certificate upheld.

Decision date: 12 April 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Marinos v Macquarie University [2024] NSWPICMP 222

Claim for primary psychiatric injury; worker appealed assessments in the psychiatric impairment rating scale categories of self-care and personal hygiene, social functioning, social and recreational activities, employability and concentration, persistence and pace; Medical Assessor erred in assessment of social and recreational activities, employability and concentration, persistence and pace; no error in assessment of self-care and personal hygiene and social functioning; Held – Medical Assessment Certificate revoked.

Decision date: 15 April 2024 | Panel Members: Member Carolyn Rimmer, Dr Graham Blom, and Dr Nicholas Glozier| Body system: Psychological/Psychiatric

Xing Xing Construction Pty Ltd v Wang [2024] NSWPICMP 223

Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against decision of lead assessor in respect of error in combining the two assessments, error in assessing impairment of the right thumb, and error in assessing scarring; employer submitted that because of the errors made by the lead assessor, the assessment of the non-lead assessor, who had assessed all body parts not just the digestive system which had been referred to him for assessment, should be preferred; Panel found error in combining the two assessments and error in assessing impairment of the right thumb; no error in assessment of scarring; Panel rejected the submission that the assessment of the non-lead assessor should be accepted; cross-appeal by worker against assessment of non-lead assessor of the digestive system; Panel accepted error in deduction under section 323 for subsequent injury; Held – Medical Assessment Certificate revoked.

Decision date: 15 April 2024 | Panel Members: Member Carlyn Rimmer, Dr Neil Berry, and Dr Drew Dixon | Body system: Right Upper Extremity, Digestive Tract, and Skin

Cook v Secretary, Department of Education [2024] NSWPICMP 224

Appeal against Medical Assessment Certificate (MAC) finding 6% whole person impairment; whether mistakes of fact made by Medical Assessor; whether all categories except employment assessed in error; Held – appeal incompetent; submissions sought to give evidence; appellant’s attention to detail slipshod, regrettable and lacking intellectual vigour; no authorities cited; no legislation cited; no impugned passages identified; submissions speculative and without support; MAC confirmed.

Decision date: 16 April 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr Ash Takyar| Body system: Psychological/Psychiatric

Qantas Airways Limited v Cura [2024] NSWPICMP 225

Hearing loss due to occupational noise exposure; employer appealed on basis of the inclusion of all losses at all frequencies and the loading for severe tinnitus; the Medical Assessor (MA) has used his clinical judgment taking into account the medical history and physical examination and his audiogram to find the hearing losses at all frequencies are occupational noise induced hearing losses; he refers to the other medical opinions but notes the audiograms of the IMEs were very different to the one he obtained on the day of assessment; he gives reasons why he prefers his own audiogram; his reasoning is not inadequate such as to constitute error; when the Medical Assessment Certificate (MAC) is read as a whole, the path of reasoning is clear and the decision to assess occupational noise induced hearing loss using all frequencies was open to the MA based on his clinical judgment noting the nature and extent of the occupational noise exposure over 33 years and the result of the audiogram taken on the day of assessment; tinnitus allowance of 4% also open to the MA and disclosed no error; Held – MAC confirmed.

Decision date: 16 April 2024 | Panel Members: Member Jane Peacock, Dr Brian Williams, and Dr Robert Payten| Body system: Hearing

Davis v Polbuild Pty Ltd [2024] NSWPICMP 226

Workplace Injury Management and Workers Compensation Act 1998; appellant suffered injury to right knee, the treatment for which included a total knee replacement; appellant had pre-existing osteoarthritis in right knee; Medical Assessor (MA) made a deduction under section 323(1) of 50%; whether that deduction was an error; whether the MA provided sufficient explanation for the deduction; Appeal Panel held the deduction MA made was not supported by the evidence and was an error; Held – Medical Assessment Certificate revoked.

Decision date: 17 April 2024 | Panel Members: Member Marshal Douglas, Dr Alan Home, and Dr James Bodel | Body system: Right Lower Extremity and Scarring

Malekzadeh v Southern Cross University [2024] NSWPICMP 227

Workplace Injury Management and Workers Compensation Act 1998; appellant relied on grounds for appeal provided in section 327(3)(b), (c) and (d); whether the additional relevant information on which the appellant sought to rely to establish s327(3)(b) was available to appellant and could not reasonably have been obtained by the appellant before the medical assessment; whether Medical Assessor (MA) considered all the evidence; whether MA correctly weighed the evidence; whether MA’s ratings of appellant’s impairment in psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social functioning, travel, and concentration, persistence and pace available on the evidence; whether the deduction MA made under section 323(1) of 50% available on the evidence; Appeal Panel held the additional relevant information was available to appellant and could reasonably have been obtained by the appellant before the medical assessment and section 327(3)(b) not established; Appeal Panel held MA considered all relevant evidence and his ratings of appellant’s impairment in self-care and personal hygiene, social functioning, concentration, persistence and pace was available on the evidence, and consequently no error in the MA’s ratings for these PIRS, but MA’s rating for appellant’s impairment in PIRS not available on evidence, and consequently Medical Assessment Certificate (MAC) contained a demonstrable error; MA’s deduction of 50% under section 323(1) also not available on the evidence, and was an error; Held – MAC revoked.

Decision date: 17 April 2024 | Panel Members: Member Marshal Douglas. Dr Nicholas Glozier, and Dr Douglas Andrews| Body system: Psychological/Psychiatric

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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