Legal Bulletin No. 160

Issued 10 May 2024

Welcome to the one hundred and sixtieth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Member Decision

Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25

Workers compensation; clause 44 of the Workers Compensation Regulation 2016; restriction on the number of medical reports allowed into proceedings; appeal upheld; decision revoked and redetermined pursuant to section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 considered; claim for surgery pursuant to section 60 of the Workers Compensation Act 1987; whether surgery is “as a result of” injury; Fagan v Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 applied; Held – Certificate of Determination dated 20 June 2023 is revoked.

Decision date: 2 May 2024 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Young v QBE Insurance (Australia) Limited [2024] NSWPIC 197

Motor Accident Injuries Act 2017; claim for damages; the claimant was riding a motorbike when he changed lanes and collided with the rear of a vehicle stationary in lane three of a motorway; insurer alleged contributory negligence of 70%; injuries included fracture of right scapula, injury to the right foot, fracture of the right humerus, right shoulder subscapularis tear, complete tear of the posterior cruciate ligament, tear of the lateral cruciate ligament and lateral meniscal contusion of the right knee, whiplash injury to cervical spine, strain of lumbar spine, fracture of the left thumb, lacerations to the right knee, and post-traumatic stress disorder; dispute as to entitlement to economic loss where returned to work and no obvious loss; Held – claimant truthful witness; Braund v Henning and March v Stramare considered; applying Podrobersek v Australian Iron and Steel; insured driver at fault in running out of petrol, creating unexpected hazard; claimant guilty of contributory negligence of 25% for failing to keep proper lookout; non-economic loss assessed at $300,000; claimant worked as project manager and director of own company including undertaking landscaping work and labouring work for tradesman; regarding economic loss Hasher v Husher applied where it was the skill and labour of the claimant which generated the income of the business; loss of income for absence from work of 31 weeks; thereafter economic loss assessed by way of buffer $150,000 where claimant 59 years of age; alleged no longer able to undertake landscape and labouring work and only working 50% of pre-injury hours but where business not showing loss; total damages assessed $361,066.73 after reduction for contributory negligence; costs assessed in favour of claimant.

Decision date: 16 April 2024 | Member: Susan McTegg

Park v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 225

Assessment of damages; liability wholly admitted; claimant 79 years old; assessed at the Commission not greater than 10% whole person impairment; claimed working part-time for cash; no supporting evidence; disclosed on claim form not working; told treating medical professional not working; claim lacked substance; Held – claim dismissed pursuant to section 54(b) of the Personal Injury Commission Act 2020.

Decision date: 2 May 2024 | Member: Elyse White

Workers Compensation non-Presidential Member Decisions

Hallmann v Southern Cross University [2024] NSWPIC 209

Workers Compensation Act 1987; claims for spinal injuries, aggravation of myalgic encephalomyelitis/chronic fatigue syndrome with fibromyalgia, and other consequential conditions (accepted injuries); claim for treatment expenses pursuant to section 60; consideration of applicant’s and other statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the treatment expenses are reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 1 July 2020 as well as the applicant’s accepted injuries on 15 October 2020; if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited considered; Held – physiotherapy treatment, gym membership, personal training, and exercise physiology are reasonably necessary medical treatment for the applicant as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022; he is to be afforded eight weeks of physiotherapy treatment three times per week in accordance with Emile du Plessis’ request dated 6 April 2023, gym membership for three months in accordance with the tax invoice from Byron Gym dated 11 April 2023, 13 weeks of personal training twice per week in accordance with Jason Mickan’s request dated 30 August 2023, and eight weeks of exercise physiology once per week in accordance with Tim Boyd’s request dated 9 March 2023; the Commission only has evidence before it to allow it to order these periods of treatment; if the applicant requires treatment for a longer period, he will need to make an appropriate claim upon the respondent in this regard; the Commission currently makes no determination regarding the applicant’s entitlements following the periods referred to; award for the applicant accordingly.

Decision date: 26 April 2024 | Member: Gaius Whiffin

Ma v Secretary, Department of Transport [2024] NSWPIC 210

Workers Compensation Act 1987; claim for the cost of hearing aids pursuant to section 60; the applicant worker claimed he suffered industrial deafness; the respondent asserted that the applicant had not suffered industrial deafness arising out of or in the course of his employment; Held – finding that the audiogram relied upon by the applicant should be accepted; the noise study of the respondent has no probative value due to ambiguity; failure to test ‘real noise’ and lack of identification of the ‘expert’; the industrial deafness suffered by the applicant materially contributed to the reasonable necessity for the cost of the hearing aids claimed by the applicant.

Decision date: 26 April 2024 | Member: Diana Benk

Bloor v J J Richards and Sons Pty Ltd [2024] NSWPIC 211

Workers Compensation Act 1987; claim for permanent impairment regarding DVT pursuant to section 4(b)(i); applicant employed as garbage truck driver with respondent; only issue for determination is whether the applicant’s employment was the main contributing factor to the DVT, the presence of which is accepted; Held – the question of main contributing factor is one of causation, and the test is whether the applicant can establish employment was the main contributing factor to the development of the DVT after a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates and State Transit Authority of New South Wales v El-Achi applied; there can only be one “main contributing factor”, and as such the test for establishing employment as that one factor is more stringent than that for establishing work as “a substantial contributing factor” under section 9A; AV v AW followed; an evaluation of the lay and medical evidence in this matter establishes the applicant’s employment was the main contributing factor to the development of the DVT; that conclusion is supported not only by the applicant’s IME evidence, but that of his treating GP and specialists; on balance, those views are preferable to those of the respondent’s IME who, in part based his opinion on the mechanism of using the pedals on a truck to flex calf muscles; however, the pedals in the videos are different to those which the applicant used when driving; the documentary evidence shows the applicant spent large portions of long shifts in the one position while driving for the respondent; to the extent there is a contradiction between that documentary evidence and that of the respondent’s witness Mr Skinner, the documentary evidence which broadly supports the evidence of the applicant preferred; matter remitted to President for referral to Medical Assessor.

Decision date: 26 April 2024 | Member: Cameron Burge

Gu v Recruitment and Labour Services [2024] NSWPIC 213

Workers Compensation Act 1987; claim for section 66 benefits; lumbar spine accepted but right hip denied; whether applicant satisfied onus of proof; whether medico-legal opinion of applicant deficient; Held – issue to be determined by expert evidence; ACW v ACX considered and applied; respondent expert opinion of little weight; applicant expert preferred; Mosawi v Baron Forge Pty Ltd applied regarding nature of injury to be remitted.

Decision date: 29 April 2024 | Member: John Wynyard

Sadhrao v Bayfield Hotels (Woollahra) Pty Ltd ATF Light Brigade Hotel [2024] NSWPIC 215

Workers Compensation Act 1987; claim for payment of section 60 expenses in relation to proposed treatment of right shoulder problems; only issue was whether the applicant sustained an injury to the right shoulder in the admitted work injury; no dispute that the proposed treatment was reasonably necessary medical treatment; found on the evidence that the applicant did sustain an injury to the right shoulder as alleged; Held – award for the applicant for payment of the claimed section 60 expenses.

Decision date: 29 April 2024 | Member: Michael Moore

De'Athe v Frost Antiques Pty Ltd [2024] NSWPIC 217

Workers Compensation Act 1987; permanent impairment claim; operation of transitional provisions contained in schedule 6, part 18C; whether applicable in circumstances of matter, and if so, to what extent; the applicant suffered a previous non-compensable psychological injury in the employ of the respondent before suffering a further injury of the same nature with a deemed date of 22 July 2011; the matter was referred for medical assessment, and a deduction of 2/10ths was made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 by the Medical Assessor (MA); that finding was not the subject of any appeal; the applicant conceded she suffered a previous, non-compensable condition; Held – the transitional provisions apply to the matter.; the provisions require a factual examination of the evidence and to determine the amount, if any, of the deduction from the compensation awarded; on examining the lay and medical evidence, the appropriate deduction pursuant to the transitional provisions is a monetary figure in accordance with the findings of the MA, namely a 20% or two tenths deduction; Certificate of Determination dated 15 March 2024 confirmed.

Decision date: 30 April 2024 | Member: Cameron Burge

Humphrey v Woolworths Group Limited [2024] NSWPIC 218

Claim for weekly benefits and medical expenses in respect of injury to the lumbar spine; injury in dispute; applicant sustained injury at home four days prior to alleged injury; lack of contemporaneous history of injury to hospital, general practitioner, or physiotherapist; conflicting claim forms; applicant had made prior claims for injury to his lumbar spine and other injuries; consideration of Davis v Council of the City of Wagga Wagga, Mason v Demasi, and Nguyen v Cosmopolitan Homes; Held – the applicant did not establish injury on the balance of probabilities; award for the respondent.

Decision date: 30 April 2024 | Senior Member: Kerry Haddock

McDiarmid v Boral Limited [2024] NSWPIC 219

Workers Compensation Act 1987; claim for proposed left hip replacement surgery; dispute whether surgery was reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA discussed and applied; Held – surgery was reasonably necessary as a result of injuries; respondent to pay for proposed surgery pursuant to  section 60.

Decision date: 30 April 2024 | Member: Diana Benk

Elliott v UGL Engineering Pty Ltd [2024] NSWPIC 220

Workers Compensation Act 1987; claim for weekly payments for partial incapacity for a closed period and medical expenses for psychological injury; respondent concedes the worker sustained injury in the course of his employment but relies on section 11A that the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to retrenchment and/or dismissal; reference to Hamad v Q Catering P/L; reference to Ric Developments P/L v Muir in determination of the weekly payments claim; Held – the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to retrenchment and/or dismissal; award of weekly payments of compensation for partial incapacity for work but for a period less than that claimed by the worker; the respondent to pay the worker’s reasonably necessary medical treatment.

Decision date: 30 April 2024 | Member: John Isaksen

Holyoak v ISS Property Services Pty Ltd & Ors [2024] NSWPIC 223

Industrial deafness; concurrent employment; whether first respondent was a noisy employer; second respondent admits noisy employment; medical expenses; claim for hearing aids; no issue applicant has reasonable necessity for hearing aids; only issue is whether both respondents are liable for cost of the treatment; lump sum compensation; no issue matter will be referred for medical assessment; issue is whether both respondents will be liable for payment of compensation, and if so, to what extent as between them; Held – the first respondent is not a noisy employer; award for the first respondent; second respondent to pay the costs of and incidental to the hearing aids; permanent impairment claim remitted to the President for referral to Medical Assessor to determine the applicant’s whole person impairment.

Decision date: 1 May 2024 | Member: Cameron Burge

Fell v Willoughby City Council [2024] NSWPIC 224

Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury; respondent disputed that employment was the main contributing factor to alleged injury; respondent maintained it had a defence pursuant to section 11A, relying on its actions with respect to discipline, performance appraisal and/or provision of employment benefits; consideration of Department of Education and Training v Sinclair, Pirie v Franklins Ltd, Irwin v Director-General of Education, AV v AW, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd, Northern NSW Local Health Network v Heggie, and Hamad v Q Catering Limited; Held – applicant sustained psychological injury, being the aggravation, acceleration, exacerbation or deterioration of a disease, to which employment was the main contributing factor; injury was wholly or predominantly caused by respondent’s action with respect to discipline; respondent’s action was reasonable; award for the respondent.

Decision date: 1 May 2024 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Bowers v QBE Insurance (Australia) Limited [2024] NSWPICMP 242

Review of medical assessment; assessment of treatment and care - causation; claimant sustained non-threshold injuries; motor vehicle accident led to increase of symptoms which could give rise to further surgical treatment; lumbar spinal fusion; review of determination; no realistic expectation of improvement; need for re-examination of body parts injured; lumbar spinal surgery; Held – certificate confirmed.

Decision date: 18 April 2024 | Panel Members: Member Hugh Macken, Dr Geoffrey Stubbs, and Dr Shane Moloney | Injury module: Treatment Type: Surgery

Daley v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 243

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 19 June 2018; Medical Assessor (MA) Nigel Menogue determined whole person impairment (WPI) was not greater than 10%; the MA diagnosed that the injuries to the left shoulder, right elbow and left knee gave rise to a WPI of 8%; Medical Review Panel (MRP) attended an examination of the claimant and found permanent impairment of the left shoulder which equated to 3% WPI; MRP assessed WPI at 11%; Held – the Certificate of the MA was revoked, and a replacement Certificate issued.

Decision date: 19 April 2024 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb

Barzani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 244

Review of certificate of Medical Assessor (MA) Cameron of 5 July 2022 going to the degree of impairment of earning capacity of the claimant and to whether the claimant suffered a traumatic brain injury; the MA found that the claimant did not have an impairment of earning capacity; claimant injured in a motor vehicle accident on 5 July 2018; at the time of the accident the claimant held two jobs, one full-time as a customer relations officer and one part-time as a loading dock manager; shortly after the accident the claimant travelled on an overseas holiday and posted on social media details of unrestricted physical activities; on return to Australia the claimant resigned his full-time position and worked part-time thereafter in his old position as a loading dock manager/supervisor; medical examinations of the claimant were unremarkable; going to the question of whether the claimant had suffered an impairment of earning capacity MA Gibson found that he had not; regarding the issue of whether the claimant had suffered a traumatic brain injury MA Hodgkinson found that he had not; Held – certificate and reasons of MA Cameron affirmed.

Decision date: 19 April 2024 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson, and Dr Adeline Hodgkinson | Injury module: Spine, Brain Injury, Upper and Lower Limb; Treatment Type: Physiotherapy Treatment, Radiological Investigations, Facet Join Injections, Medication - Prescription

QBE Insurance (Australia) Limited v Suttie [2024] NSWPICMP 245

Motor Accident Injuries Act 2017; the claimant suffered injury on 21 September 2022 when the claimant had come to a stop on the Sturt highway prefatory to making a right hand turn into the driveway of her farming property; medical dispute as to necessary and reasonable treatment and care; causation; claim for costs of expenses incurred for maintenance of claimant’s farming property; whether such expenses fall within definition of domestic assistance under Guidelines; Held – certificate of Medical Assessor Middleton as to causation confirmed; certificate as to reasonable and necessary domestic care for closed period revoked.

Decision date: 22 April 2024 | Panel Members: Member Gary Victor Patterson, Dr Lauren Alach, and Dr Dawn Piebenga | Injury module: Treatment Type: Domestic Assistance - Reasonable and Necessary

Shinko v Allianz Australia Insurance Limited [2024] NSWPICMP 246

The claimant sustained injury in a motor vehicle accident on 25 February 2021; Medical Assessor Kenna certified lumbar spine decompressive surgery at one level did not relate to the injury caused by the accident and the need for surgery related to an incident two years post-accident when the claimant rolled over in bed; Held – prior to 20 March 2023 left sided pain due to meralgia paraesthetica and not radiculopathy; disc prolapse occurred when claimant rolled over in bed resulting in low back pain with acute radicular symptoms; proposed surgical treatment not related to the injury caused by the accident; on examination no evidence of ongoing radiculopathy; surgery no longer clinically indicated; surgery not reasonable and necessary in the circumstances.

Decision date: 23 April 2024 | Panel Members: Member Susan McTegg, Dr Geoffrey Stubbs, and Dr Shane Moloney | Injury module: Treatment Type: Surgery

Workers Compensation Medical Appeal Panel Decisions

The GEO Group Australia Pty Ltd v Coles [2024] NSWPICMP 247

Respondent suffered injury to lumbar spine and right lower extremity; respondent’s permanent impairment relating to right lower extremity assessed by reference to the criteria for knee replacement; whether Medical Assessor’s (MA) examination of the respondent’s right knee included extension lag; whether MA’s assessment of 2% whole person impairment (WPI) under paragraph 4.33 of the Guidelines available on the evidence; Appeal Panel held MA’s assessment of 2% WPI under paragraph 4.33 of the Guidelines available on the evidence; Appeal Panel held it could not be ascertained based on the MA’s findings from examination whether his examination of the appellant’s right knee included extension lag, which amounted to the MA providing inadequate reasons for his assessment and that was a demonstrable error; respondent re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 26 April 2024 | Panel Members: Member Marshal Douglas, Dr Mark Burns, and Dr John Brian Stephenson | Body system: Spine, Right Lower Extremity, and Scarring

The Frank Whiddon Masonic Homes of NSW v Garner [2024] NSWPICMP 248

Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment for a psychological injury; psychiatric impairment rating scale (PIRS) of employability; ascribing activities to correct PIRS table; Ballas v Department of Education and Tasevski v Westpac Banking Corporation referred to; Held – Medical Assessment Certificate revoked.

Decision date: 29 April 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom| Body system: Psychological/Psychiatric

Wilson v Australian Outdoor Living [2024] NSWPICMP 249

Workplace Injury Management and Workers Compensation Act 1998; appeal from 50% section 323 deduction for asymptomatic cervical degenerative pre-existing condition in a 66 year old worker; whether Medical Assessor (MA) had applied wrong test; whether error in not finding radiculopathy when other specialists allegedly had; Held – MA applied wrong test in finding that no cervical injury occurred; Skates v Hills Industries Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; no error in findings on radiculopathy; Wingfoot Australia Pty Ltd v Kocak considered and applied; Medical Assessment Certificate revoked and section 323(2) applied.

Decision date: 29 April 2024 | Panel Members: John Wynyard, Dr James Bodel, and Dr Margaret Gibson | Body system: Spine and Right Upper Extremity

Chambers v WEW Pty Ltd [2024] NSWPICMP 250

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; need for reasons for diagnosis; use of online investigation report; reassessment; Tasevski v Westpac Banking Corporation referred to; Held – Medical Assessment Certificate revoked.

Decision date: 30 April 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Dr Ash Takyar| Body system: Psychological/Psychiatric

Gilbert v Donhad Pty Ltd [2024] NSWPICMP 251

Claim for primary psychiatric injury; worker appealed assessments in the psychiatric impairment rating scale categories of social functioning and concentration, persistence and pace; Medical Assessor (MA) erred in assessment of concentration, persistence and pace and social functioning as did not undertake appropriate testing of the descriptors and it was not possible to following the MA’s reasoning process in those assessments; insufficient evidence on which to make a determination; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 30 April 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Inner West Council v McQuade [2024] NSWPICMP 252

Claim relating to multiple dates of injury; obvious error on face of Medical Assessment Certificate (MAC) requiring reassessment by Medical Appeal Panel member; parties made a consent referral seeking separate assessment for various dates of injury; on re-examination, it was not possible to apportion impairment between the myriad dates of injury as the pathology arising from the injuries was of the same nature; therefore, global whole person impairments were provided; Held – Appeal upheld; MAC dated 12 September 2023 set aside and the assessment of the Panel substituted; matter referred to a Member of the Workers Compensation Division of the Commission to deal with questions of apportionment and/ or aggregation between the various dates of injury.

Decision date: 30 April 2024 | Panel Members: Member Cameron Burge, Dr Chris Oates, and Dr Doron Sher| Body system: Right Upper and Lower Extremity, and Scarring

Quinton v Mid Western Regional Council [2024] NSWPICMP 253

Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made of one third under section 323(1) was an error; whether MA provided adequate reasons for deduction he made; whether MA adequately explained why he did not assume in accordance with section 323(2) that the deductible proportion is one tenth; Appeal Panel held that MA did not make an error and adequately explained his reasons for not applying section 323(2) and adequately explained his reasons for making a deduction under section 323(1) of one third; Held – Medical Assessment Certificate upheld.

Decision date: 30 April 2024 | Panel Members: Member Marshal Douglas, Dr Drew Dixon, and Dr Gregory McGroder| Body system: Left and Right Upper Extremity

Saveski v Brunjev Pty Limited [2024] NSWPICMP 254

Upper extremity assessments; appeal by the worker alleged deterioration two weeks after assessment and sought to rely on additional evidence; submitted the Medical Assessor (MA) was in error in finding that the worker had reached maximum medical improvement (MMI); the Appeal Panel found that the approach taken by the MA, when faced with inconsistent presentation by the appellant, is adequately reasoned and in accordance with the correct criteria in the Guidelines; the additional evidence does not reach the necessary threshold for the appeal to succeed, namely that the appellant has suffered a deterioration in his condition that results in an increase in the degree of permanent impairment; nor is the additional evidence sufficient to establish that the appellant has not reached MMI contrary to the finding of the MA; Held – Medical Assessment Certificate confirmed.

Decision date: 1 May 2024 | Panel Members: Member Jane Peacock, Dr Roger Pillemer, and Dr Gregory McGroder| Body system: Spine, Left and Right Upper Extremity

Qeshta (previously Gishta) v M & Y Formwork Pty Ltd (No 1 and 2) [2024] NSWPICMP 255

Appeal against findings from lead and non-lead Assessors resulting in total 11% whole person impairment; whether either Medical Assessor’s (MA) obliged to advise claimant of his conclusions about claimant’s presentation; whether rules of procedural fairness relevant to an MA’s task; whether failure by MA to consider whether pre-existing condition was caused by the workplace injury an error; whether failure by MA to consider conditions within the Guides that had no relevance an error; Held – thorough and conscientious approach by appellant limited by lack of familiarity with the jurisdiction; procedural fairness not relevant to MA in forming opinion as to presentation; Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; appellant misunderstood evidence concerning pre-existing conditions; no basis for claiming error for a MA not considering a guideline that had no relevance to the facts; Medical Assessment Certificates confirmed.

Decision date: 1 May 2024 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Neil Berry| Body system: Right Lower Extremity, Spine, Digestive System, and Respiratory System

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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