Legal Bulletin No. 161

Issued 17 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.

Supreme Court Decision

Needham v Wollongong City Council [2024] NSWSC 575

Administrative law; judicial review of decision of medical appeal panel; medical dispute under Workplace Injury Management and Workers Compensation Act 1998; where plaintiff had suffered injury to her left elbow in a fall; where defendant rejected plaintiff’s claim about resulting impairment of her left upper extremity; where plaintiff made an application for assessment of impairment of her left upper extremity; where medical assessor found impairment of ulnar nerve as well as elbow joint; where appeal against assessment upheld; whether appeal panel erred in finding that medical assessor had dealt with injury which went beyond the parties’ medical dispute which was confined to impairment of the left elbow; claim pursued in respect of impairment of left upper extremity included impairment of the ulnar nerve; Held – appeal panel’s decision set aside

Decision date: 16 May 2024 | Before: Schmidt AJ

Presidential Member Decision

Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (icare) [2024] NSWPICPD 26

Workers compensation; notice to reimburse pursuant to section 145(1) of the Workers Compensation Act 1987; application brought by uninsured disputing reimbursement notice; clause 2A of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998; assertion by uninsured that the worker was employed by labour hire agency who had a workers compensation policy of insurance; the Senior Member held that the worker was employed directly by the uninsured; challenge on appeal to the Senior Member’s findings made from the evidence; no error found in the Senior Member’s reasons; Held – the Senior Member’s Certificate of Determination dated 20 June 2023 is confirmed.

Decision date: 8 May 2024 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Donelian v CIC Allianz Insurance Limited [2024] NSWPIC 226

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4); claimant was standing on the driveway of a motor vehicle repair shop when struck by insured motor vehicle; sustained multiple injuries, including fracture of left wrist and fractures of the left foot; claimant was not keeping a proper lookout and had stepped back into the path of motor vehicle which was being reversed at the time, insurer admitted duty of care but alleged contributory negligence on the part of the claimant; contributory negligence assessed at 25%; claimant is an estimator; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss.

Decision date: 1 May 2024 | Member: David Ford

Insurance Australia Limited t/as NRMA Insurance v Lawton [2024] NSWPIC 232

Motor Accident Injuries Act 2017; proposed settlement approval; elderly claimant involved in high speed accident; liability wholly admitted; injuries to both legs; insurer conceded whole person impairment greater than 10%; entitled to damages for non-economic loss only; having regard to the age of the claimant and the impact the injuries have had to her quality of life and ongoing pain and suffering; entitled to treatment and care for the rest of the claimant’s life; proposed amount reasonable and within the range of likely potential damages; Held – settlement approved in the sum of $220,000 pursuant to section 6.23(2)(b).

Decision date: 6 May 2024 | Member: Elyse White

Yas v QBE Insurance (Australia) Limited [2024] NSWPIC 238

Motor Accident Injuries Act 2017; claim for damages; claimant self-represented; the claimant injured in a motor vehicle accident on 29 September 2019 at age 64 years; claimant made redundant from longstanding job on 20 October 2017, thereafter carer for mother until 19 December 2018; from 20 December 2018 received Newstart allowance and Coronavirus supplement until 4 January 2021 when eligible for age pension; claim economic loss for period 20 December 2018 to 4 January 2021; pre-existing right wrist fracture; chronic back pain, and from time to time pain in neck, right sacroiliac region and/or right hip; medical opinion effect of accident now resolved and current symptoms due to age and pre-existing factors; Held – claimant continued to suffer from impact of soft tissue injury to cervical spine, lumbar spine and left knee until at least 4 January 2021; claimant genuine in attempts to return to work; at time of accident claimant only fit for light sedentary work; accident destroyed any residual earning capacity; assess damages for economic loss by way of buffer of $50,000 inclusive of superannuation.

Decision date: 9 May 2024 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Tuckwell v Westpac Banking Corporation [2024] NSWPIC 227

Claim for costs of centralisation rhinoplasty surgery; accepted injury to the face and nose; respondent disputed that the proposed surgery was reasonably necessary; applicant failed to discharge the onus upon her to establish that the surgery was necessary as a result of the injury to her face and nose on 3 March 2022; Held – award for the respondent.

Decision date: 2 May 2024 | Member: Carolyn Rimmer

Riganias v Cre8tive Roofing Services Pty Ltd [2024] NSWPIC 228

Workers Compensation Act 1987; sections 4(a) and 4(b)(ii); injury simpliciter; aggravation of a disease injury; Rail Services Australia v Dimovski and AV v AW considered;mechanism of injury; identifiable pathological change; Ky v Blue Leaf Food Group Pty Ltd applied;onus of proof; Nguyen v Cosmopolitan Homes applied; increase and worsening of symptoms constitutes an aggravation or exacerbation of a disease injury; Federal Broom Co Pty Ltd v Semlitch applied; section 60(5); claim for medical expenses; whether proposed cervical spine surgery is reasonably necessary as a result of injury; Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held – proposed surgery is reasonably necessary as a result of the disease injury.

Decision date: 3 May 2024 | Member: Kathryn Camp

Cousens v Graeme Brett Morley t/as Morley Earthworks [2024] NSWPIC 229

Claim for weekly benefits; denial of injury withdrawn at hearing; only issue for determination is extent of incapacity for employment; the applicant injured her right shoulder when she fell from a motor bike while mustering cattle in the course of her employment; her claim was originally denied on the basis that she had engaged in wilful and serious misconduct at the time of her injury; that denial was withdrawn at the hearing and the matter proceeded as a dispute as to the applicant’s incapacity; the applicant’s uncontested evidence is that she could not afford to have her injury treated after the denial of liability, and that she remains effected by the effects of her injury to the extent she cannot work in paid employment; that evidence is supported by her IME; Held – the applicant was totally incapacitated for employment during the period claimed; having regard to her age and the nature of her work history, the applicant had little in the way of transferable skills which could be applied on the open labour market; the fact the applicant is a mother of two young children for whom she cares is not indicative of a residual capacity for employment; the respondent offers no medical evidence or vocational assessment to counter the evidence of the applicant and her IME, which evidence is accepted; respondent ordered to pay the applicant weekly compensation as claimed.

Decision date: 3 May 2024 | Member: Cameron Burge

Mervin v Yancoal Australia Pty Ltd [2024] NSWPIC 230

Workers Compensation Act 1987; whether the applicant sustained an injury arising out of or in the course of employment pursuant to section 4; whether the employment concerned was a substantial contributing factor; claim for weekly compensation pursuant to sections 33 and 36; claim for medical or related treatment expenses pursuant to section 60; Held – on 22 August 2023, the applicant sustained an injury arising out of or in the course of employment and the applicant’s employment was a substantial contributing factor to the injury; the applicant is entitled to weekly payments of compensation for the period claimed; the applicant is entitled to compensation for medical or related treatment expenses.

Decision date: 3 May 2024 | Member: Sophie Jones

Dixon v J M Hargreaves (NSW) Pty Ltd (Deregistered) & Ors [2024] NSWPIC 231

Workers Compensation Act 1987; claim for whole person impairment for binaural hearing loss and for the cost of supply and fitting of binaural hearing aids; determination of the last noisy employer of the worker; whether the last employer where the worker was exposed to excessive noise was connected to the State of New South Wales; reference to Tamboritha Consultants P/L v Knight, Martin v RJ Hibbens P/L and Workers Compensation Nominal Insurer v O’Donohue on the application of section 9AA; whether a previous employer in NSW was the last noisy employer of the worker; reference to Callaby v State Transit Authority in determination of the last employer where the tendency, incidents or characteristics of employment gave rise to a real risk of industrial deafness; Held – the last employer where the worker was exposed to excessive noise was not connected to the State of New South Wales; the first respondent identified as the last noisy employer of the worker in NSW; referral to a Medical Assessor for assessment of whole person impairment for binaural hearing loss; order for the payment of the cost of supply and fitting of bilateral hearing aids by the first respondent.

Decision date: 7 May 2024 | Member: John Isaksen

Hohepa v Truserv Pty Ltd [2024] NSWPIC 234

Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 33, 36, 37 and 38, and a general order for medical and related expenses pursuant to section 60; whether applicant sustained injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i), 4(b)(ii); Held – applicant did not sustain an injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i); applicant did sustain an injury to his lumbar spine pursuant to section 4(b)(ii); general order for payment of expenses pursuant to section 60; matter listed for a conference to deal with issue of calculation of weekly compensation pursuant to sections 33, 36, 37 and 38.

Decision date: 7 May 2024 | Member: Karen Garner

Coote v Designbuild NSW Pty Ltd [2024] NSWPIC 235

Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66; accepted injury to right biceps tendon on 19 October 2019 and consequential right wrist condition; disputed injury to right shoulder; Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant sustained an injury to his right shoulder on 19 October 2019 as alleged.

Decision date: 7 May 2024 | Member: Fiona Seaton

Mcelhinney v Patrick Stevedores Holdings Pty Ltd [2024] NSWPIC 237

Workers Compensation Act 1987; claim for injuries to back; claim for proposed future treatment expenses pursuant to section 60 being a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion; consideration of applicant’s statements, medical reports and other treatment records, investigative and surveillance reports, and claim correspondence; respondent concedes injury on 11 April 2021; consideration of whether the proposed surgery is reasonably necessary medical treatment for the applicant as a result of the accepted injury; Paric v John Holland (Constructions) Pty Limited, Paric v John Holland (Constructions) Pty Limited, Rose v Health Commission (NSW, Diab v NRMA Limited,and Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant by Dr Parkinson (a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion) as referred to in his 18 October 2023 request, is reasonably necessary medical treatment as a result of the accepted injury to the applicant on 11 April 2021; the respondent is to pay for the costs of and incidental to the surgery pursuant to section 60.

Decision date: 8 May 2024 | Member: Gaius Whiffin

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited v Prasad [2024] NSWPICMP 257

Motor Accident Injuries Act 2017; insurer’s application for review of 26% whole person impairment (WPI) assessment by Medical Assessor Samuell; claimant’s father seriously injured waiting for a bus and died nine days later; claimant, his brother and parents all lived together in the same house very close to where the accident happened; insurer conceded claimant sustained psychological injury as a result of the accident but disputed the nature and extent of the claimant’s current impairment relying on material which suggested significant improvement with support of rehabilitation advisors; Held – claimant satisfied the criteria for a persistent depressive disorder but not a post-traumatic stress disorder; claimant’s apparent better functionality earlier or is explained by the fact he was being supported by the insurer’s rehabilitation efforts; his current situation was entrenched and there was unlikely to be any improvement; WPI assessed at 22%; no matter of principle.

Decision date: 24 April 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Canaris, and Dr Matthew Jones | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Kirkpinar [2024] NSWPICMP 258

Review of medical assessment; total hip replacement; documented pre-existing symptomatic permanent impairment; left sided hemiplegia; pre-existing medical condition; bicyclist hit by car; significant pre-accident medical history; method of assessment; restricted range of motion; Held –Panel revokes the certificate of Medical Assessor Alan Home; non-accident-related impairment.

Decision date: 26 April 2024 | Panel Members: Member Hugh Macken, Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine and Lower Limb

Pietryga v Allianz Australia Insurance Limited [2024] NSWPICMP 259

Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Woo; the claimant suffered in a motor vehicle accident on 15 May 2019; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine and both shoulders; MA Woo certified cervical spine and lumbar spine injuries had previously been assessed as threshold injuries and therefore no assessment of permanent impairment was required; MA Woo concluded restricted range of motion of both shoulders could not be explained by any identified cause and found no assessable impairment; Held – severe T bone crash; imaging unhelpful; well established and chronic pain syndrome and appears very disabled; soft tissue injury to cervical spine and lumbar spine caused by accident; soft tissue injury to each shoulder secondary to cervical spine injury; presence of dysmetria in cervical and lumbar spine; cervical spine DRE II giving 5% WPI; lumbar spine DRI II giving 5% WPI; shoulder assessed by analogy at 2% WPI for each shoulder; certificate of MA Woo revoked and certified injures caused by accident gave rise to  greater than 10% WPI.

Decision date: 26 April 2024 | Panel Members: Member Susan McTegg, Dr Alan Home, and Dr Michael Couch| Injury module: Spine and Upper Limb

Kemp v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 260

Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor Rickard-Bell’s assessment of 7% whole person impairment (WPI); claimant aged 13 at time of accident; rear seat passenger involved in head on collision; claimant sustained physical injuries (30 minutes loss of vision and hearing and sore right hip) and developed psychological response within two months; claimant alleged school performance deteriorated after the accident and that she could not work more than 20 hours a week due to tiredness; insurer agreed claimant had developed a psychological injury; Held – claimant’s expert’s report had little weight due to not having all the relevant documents; the claimant’s evidence about school reports and results was inconsistent with the records; most areas of impairment class 2 mild impairment; WPI was 7%; no issue of principle.

Decision date: 29 April 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Gilbert [2024] NSWPICMP 261

Review of certificate and reasons of Medical Assessor (MA) Hyde-Page dated 16 February 2022; claimant injured in a high speed motor bike accident on 26 February 2003; claimant was an off duty policeman wearing all safety equipment when the collision occurred and he was thrown from his bike; claimant was taken to hospital by ambulance but found not to have suffered any fractures and only had multiple abrasions down his left side and leg and was discharged home; claimant was off work for six weeks; claimant developed symptoms around his left hip and groin around 2007 and 2009 but was not disabled and had made no prior complaints; claimant had scans of his left hip in 2015 and was reported to be developing osteoarthritis; claimant had an incident in 2007 when lifting heavy items from the boot of a police car and suffering immediate sharp pain in his left groin/leg area; claimant’s pain in 2015 was put down to a left inguinal hernia; claimant suffered further injury to his left hip in November 2020; claimant submitted that the development of osteoarthritis was a gradual onset; insurer denied the claimant suffered injury to his left hip in the 2003 accident; claimant medically examined and Panel doctors satisfied that the need for the claimant to undergo hip resurfacing was directly caused by the accident in 2003; dissenting reasons of Member Bolton who was not satisfied that the claimant suffered a compression injury to the left hip and that an osteoarthritic condition developed from 2003; Held – by majority decision, certificate of MA Hyde-Page revoked and claimant found by the Panel to have 20% whole person impairment.

Decision date: 29 April 2024 | Panel Members: Member Alexander Bolton, Dr Wing Chan, and Dr Michael Couch | Injury module: Lower Limb

Bogdanoski v Allianz Australia Insurance Limited [2024] NSWPICMP 262

Motor Accident Injuries Act 2017; dispute as to the level of whole person impairment (WPI) of a physical injury caused by the motor accident; original Medical Assessor found a 6% WPI due to injuries caused by the accident; accident also found to have caused injuries to the cervical spine, left shoulder and thoracic spine, resulting in a 0% WPI; dispute as to the deduction of pre-accident impairment to the lumbar spine; on basis of examination and medical evidence, Panel found a 10% WPI of the lumbar spine and deducted 5% on the basis of documentary evidence demonstrating a DRE category II impairment prior to the subject accident; Held – 7% total WPI; injuries caused by the motor accident do not exceed 10% WPI; original medical certificate revoked and replacement certificate issued.

Decision date: 30 April 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Curtin [2024] NSWPICMP 263

Motor Accident Injuries Act 2017; dispute as to whether injuries caused by the motor accident are threshold injuries for the purposes of the MAI Act; claimant was a pedestrian when she suffered injury due to a collision with a motor vehicle on 9 July 2021; parties agreed that the issue in dispute related to whether an annular fissure of the L4/5 level of the lumbar spine was caused by the motor accident; it was conceded by the insurer that such injury is not a threshold injury for the purposes of the MAI Act; the issue in dispute was whether the annular fissure was caused by the motor accident; claimant had suffered a previous lumbar spine injury as a result of a work accident; also suffered a subsequent lumbar spine injury as a result of a turbulent flight; original Medical Assessor found that the motor accident caused the annular fissure; Review Panel found that on the basis of the examination findings and the documentary medical evidence, on the balance of probabilities, the annular fissure was caused by the turbulent flight that occurred after the motor accident; Held – claimant suffered a soft tissue injury as a result of the motor accident, which is a threshold injury for the purposes of the MAI Act.

Decision date: 30 April 2024 | Panel Members: Member Elizabeth Medland, Dr Margaret Gibson, and Dr Christopher Oates | Injury module: Spine and Lower Limb

Chaalan v Allianz Australia Insurance Limited [2024] NSWPICMP 264

Review of decision of Medical Assessor (MA) Chan dated 2 June 2022; treatment and care dispute arising out of an accident on 28 February 2019; claimant was a passenger in a car which collided with a truck in circumstances which the claimant considered life-threatening; claimant was assessed for his psychiatric disabilities by MA Parmegiani and was diagnosed as having a post-traumatic stress disorder (PTSD); 88 days after the accident the claimant was admitted to hospital with atrial fibrillation which the claimant attributed to the accident but the insurer disputed this; MA Chan said that the claimant’s atrial fibrillation was not causally related to the accident and the claimant sought a review of his decision; the Panel made available to the parties research papers to the parties attributing atrial fibrillation where PTSD had developed; claimant had been a bodybuilder but denied taking anabolic steroids which can cause atrial fibrillation; Panel not satisfied that there was evidence confirming the taking of anabolic steroids by the claimant; Panel satisfied that atrial fibrillation was not a development of an autonomic state of the claimant and that his development of PTSD had subsequently caused atrial fibrillation both of which were causally related to the accident; Held – certificate of MA Chan revoked; Panel satisfied that treatment and care claimed by the claimant of his atrial fibrillation is reasonable and necessary and causally related to the accident.

Decision date: 1 May 2024 | Panel Members: Member Alexander Bolton, Dr Nigel Ackroyd, and Dr Margaret Gibson | Injury module: Treatment Type: Medical Specialist Consultation

Allianz Australia Insurance Limited v Long [2024] NSWPICMP 265

Motor Accidents Compensation Act 1999; claimant injured when truck crashed into cycling group on 3 December 2016; insurer’s application for review of Medical Assessor (MA) Wijentunga’s whole person impairment (WPI) assessment dated 7 December 2021; claimant in several motor accidents before subject accident, which caused hemopneumothorax, fractured ribs and clavicle with restricted range of movement in pelvis; hemopneumothorax permanent impairment dispute subject to current review; ribs assessed at 0% WPI and pelvis and clavicle at 2% WPI each; insurer challenged MA’s failing to apply clause 1.72 of the Guidelines and deduct same range of movement in uninjured lower extremity for internal hip rotation, when MA assessed lower extremity impairment specific to the reduced range of movement in the claimant’s left hip flexion; MA Gorman re-examined claimant for Panel; Held – Panel relied on re-examination report and permanent impairment findings; Panel assessed same findings for pelvis because range of movement was reduced in respect of flexion not internal rotation; internal rotation range of movement in both limbs due to constitutional condition; clavicle range of movement reduced further due to claimant being less active due to subject accident; subject accident caused 6% WPI; MA Wijetunga’s certificate replaced.

Decision date: 1 May 2024 | Panel Members: Member Terence O’Riain, Dr David Gorman, and Dr Margaret Gibson | Injury module: Upper and Lower Limb

Allianz Australia Insurance Limited v Poloa [2024] NSWPICMP 266

Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 21 October 2021 when her vehicle was rear ended by the insured vehicle; dispute about whether the injuries caused by the accident were threshold injuries; Held – original assessment confirmed; injury to right shoulder is a non-threshold injury.

Decision date: 2 May 2024 | Panel Members: Member Maurice Castagnet, Dr Neil Berry, and Dr Christopher Oates | Injury module: Spine and Upper Limb

Allianz Australia Insurance Limited v Herrera [2024] NSWPICMP 267

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 6 April 2021; Medical Assessor (MA) Woo determined whole person impairment (WPI) in respect of the injuries referred and caused by the motor accident was not greater than 10%; the MA diagnosed that the injuries to the chest, left elbow, left knee, right knee, left wrist and right wrist gave rise to a WPI of 5%; the Medical Review Panel examined the claimant and found permanent impairment to the left wrist and left knee which equated to a total WPI of 5%; Held – the certificate of the MA was affirmed.

Decision date: 2 May 2024 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Osmond v QBE Insurance (Australia) Limited [2024] NSWPICMP 268

Motor Accident Injuries Act 2017; claimant injured when her stationary vehicle was rear-ended at speed; two issues are in dispute arising from the findings of the same single Medical Assessor (MA); the first dispute is about whether the proposed treatment by way of a right wrist arthroscopic assisted volar ganglion excision is reasonable and necessary and is related to the right wrist injury caused by the accident; meaning of expression “reasonable and necessary” considered; the second dispute is about whether the injuries to the cervical spine and right wrist were threshold injuries; Held – the single MA’s findings in relation to the proposed treatment and threshold injury to the right wrist are confirmed; the MA’s finding in relation to threshold injury to the cervical spine is revoked.

Decision date: 2 May 2024 | Panel Members: Member Maurice Castagnet, Dr Drew Dixon, and Dr Clive Kenna | Injury module: Spine and Upper Limb; Treatment Type: Radiological Investigations

Seke v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 269

Motor Accident Injuries Act 2017; threshold dispute; substantial pre-existing psychological; aggravation of a psychological injury constitutes an injury within the meaning of the MAI Act; AAI Ltd v Hoblos and Todev v AAI Ltd applied; claimant re-examined; clinical expertise of the Medical Assessors; Panel satisfied that motor accident aggravated major depressive disorder with anxious distress; Held – Medical Assessment Certificate revoked; claimant suffered non threshold psychological injury.

Decision date: 2 May 2024 | Panel Members: Principal Member John Harris, Dr Samson Roberts, and Dr Christopher Rickard-Bell | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Secretary, Department of Planning, Industry and Environment v Bjork [2024] NSWPICMP 270

Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment of consequences of fracture of humerus which led to radial nerve injury; Medical Assessor assessed loss of the range of movement of the wrist; terms of referral did not include wrist; Skates v Hills Industries Ltd and Secretary New South Wales Department of Education v Connolly applied; in any event, 2.9 and 2.10 of Guidelines preclude range of motion assessment for nerve injury; Held – Medical Assessment Certificate revoked.

Decision date: 3 May 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Right Upper Extremity and Scarring

Woodward Foods Australia Pty Ltd v Meredith [2024] NSWPICMP 271

Workplace Injury Management and Workers Compensation Act 1998; activities of daily living; whether Medical Assessor (MA) appropriately considered contribution from shoulder injury; whether MA undertook comparative exercise or on a hypothetical; section 323; whether MA applied section 323(2) appropriately and provided adequate reasons for doing so; whether MA appropriately considered pre-existing condition in cervical spine; Held – Medical Assessment Certificate confirmed.

Decision date: 3 May 2024 | Panel Members: Member Parnel McAdam, Dr Alan Home, and Dr John Brian Stephenson | Body system: Spine and Left Upper Extremity

OOh! Media Operations Pty Ltd v Kaur [2024] NSWPICMP 272

Psychological injury; appellant alleged demonstrable error in the assessment because reasons so brief that an adequate path of reasoning not disclosed; Appeal Panel agreed; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.

Decision date: 6 May 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Ask Takyar | Body system: Psychological/Psychiatric

Gallagher v State of New South Wales (Northern NSW Local Health District) [2024] NSWPICMP 273

Claim for primary psychiatric injury; worker appealed on basis of error in the aggregate score in the psychiatric impairment rating scale (PIRS) calculations and the assessment in the PIRS category of social and recreational activities; Medical Assessor erred in calculation of the aggregate score; no error in assessment of assessment of social and recreational activities; Held – Medical Assessment Certificate revoked.

Decision date: 6 May 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Coles Supermarkets Australia Pty Ltd v Mukareva [2024] NSWPICMP 275

Workplace Injury Management and Workers Compensation Act 1998; employer appeal against DRE II cervical finding; whether surveillance report and footage should be admitted as fresh evidence; Held – surveillance fresh evidence application rejected as infringing Rule 109 of the Personal Injury Commission Rules 2021; surveillance fresh evidence rejected as infringing section 328(3); surveillance fresh evidence rejected as hypothesis unsupportable that video operative’s observations more reliable than Medical Assessor (MA) professional examination; surveillance fresh evidence rejected as MA already aware of “obvious embellishment;” surveillance fresh evidence rejected as footage unremarkable in any event; Medical Assessment Certificate confirmed.

Decision date: 6 May 2024 | Panel Members: Member John Wynyard, Dr Robin Fitzsimons, and Dr Roger Pillemer | Body system: Spine, Left and Right Upper Extremity

Dwyer v Secretary, Department of Communities and Justice [2024] NSWPICMP 276

Workplace Injury Management and Workers Compensation Act 1998; appeal from 8% assessment for psychological injury: whether incorrect criteria or demonstrable error; whether fresh evidence admissible; Held – misapprehension by appellant that facts alleged in submissions were evidence; misapprehension infected all the submissions; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Ltd, and Jenkins v Ambulance Service of New South Wales considered and applied; fresh evidence rejected on 4 bases; statutory declaration sworn after grounds of appeal lodged and no evidence that it was served; it infringed section 328(3) in that evidence available at time of assessment; it had no prima facie probative value; Lukacevic v Coates Hire Operations Pty Ltd considered and applied; it did not concern the evidence the Medical Assessor was considering; Medical Assessment Certificate confirmed.

Decision date: 6 May 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Villanueva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 7

Motor Accident Injuries Act 2017; claimant’s dispute about the cost of attendant care services provided to her by her sisters; claimant asserted attendant care services were paid for (and not gratuitous; the claimant relied on invoices rendered by her sisters to her, receipts issued by them for monies paid and certification by the sisters of the work that was done.; medical assessment determined by Review Panel that care provided by sisters was reasonable and necessary; insurer had conceded care was related to the injuries; see Villanueva v Insurance Australia Limited t/as NRMA Insurance; rate charged by sisters was $12.50, increased to $25 and increased again to $35 per hour; insurer had paid for $22,200 of the disputed care; Held – Merit Reviewer bound by medical assessment finding of 8 hours per week; $12.50 and $25 per hour reasonable cost as insurer had paid care at this rate; $35 an hour reasonable on basis of current attendant care rate in damages claims; total amount claimed $38,600; total amount of reasonable costs allowed $28,800; invoices properly verified and paid as no challenge by insurer to the scheme of arrangement for the payment of the costs.

Decision date: 6 May 2024 | Merit Reviewer: Belinda Cassidy

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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