Legal Bulletin No. 162

Issued 24 May 2024

Welcome to the one hundred sixty second 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

The Executive Inn Pty Ltd v Mackinney [2024] NSWPICPD 27

Workers compensation; whether an accepted work injury has resolved; ongoing entitlement to weekly compensation; the relevance of medical evidence; May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 considered; Held – the Certificate of Determination dated 29 June 2023 is confirmed.

Decision date: 14 May 2024 | Before: President Judge Phillips

Cootamundra-Gundagai Regional Council v McInerney [2024] NSWPICPD 28

Workers compensation; Section 119 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); refusal of worker to attend Independent Medical Examination arranged after issuance of notice pursuant to section 78 of the 1998 Act; section 289A of the 1998 Act; section 44A of the Workers Compensation Act 1987; suspension of weekly payments for failure to attend Independent Medical Examination; Part 7 of the Workers Compensation Guidelines; Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 discussed and applied; Held – the decision of the Member dated 11 October 2023 is revoked and in substitution of that decision, it is determined that it is in the interests of justice for the un-notified issues to be determined by the Commission; the Certificate of Determination dated 23 November 2023 is revoked.

Decision date: 16 May 2024 | Before: Acting Deputy President Kylie Nomchong SC

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as Suncorp (QLD) v Dowdle [2024] NSWPIC 193

Motor Accident Injuries Act 2017; assessment of damages; liability wholly admitted; claimant sustained multiple fractures; claimant a professional truck driver having worked in this field for more than 30 years; attempted to return to work for two months after which he was certified to have no earning capacity; insurer conceded claimant entitled to damages for non-economic loss, past and future economic loss; claimant entitled to reasonable and necessary treatment for accident related injuries; Held – settlement within the range of likely potential damages assessment if claim was to proceed to assessment; settlement just, fair, and reasonable; settlement approved for non-economic loss damages in the sum of $471,062.66 in accordance with section 6.23.

Decision date: 9 April 2024 | Member: Elyse White

Insurance Australia Limited t/as NRMA Insurance v Mahoney [2024] NSWPIC 216

Motor Accident Injuries Act 2017; proposed settlement approval; claimant sustained injuries to his right arm and shoulder; 76-years-old claimant owned and operated consultancy business at time of accident; entitlement to past and future economic loss; claimant entitled to reasonable treatment for accident-related injuries for the rest of his life; Held – settlement approved in accordance with section 6.23 in the sum of $336,000.

Decision date: 30 April 2024 | Member: Elyse White

Allianz Australia Insurance Limited v McEvoy [2024] NSWPIC 239

Motor Accident Injuries Act 2017; proposed settlement approval; elderly claimant knocked to the pavement when insured driver backed out of driveway; liability wholly admitted; insurer’s medicolegal assessed whole person impairment of 14%; 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; proposed amount reasonable and within the range of likely potential damages; Held – settlement approved in the sum of $336,000 pursuant to section 6.23(2)(b).

Decision date: 2 May 2024 | Member: Elyse White

AAI Limited t/as GIO v Russell [2024] NSWPIC 240

Motor Accident Injuries Act 2017; 100-year-old driver of a motor vehicle involved in a collision with insured vehicle; claimant sustained fractures to cervical spine at C6 level, thoracic spine at T3 level, lumbar spine at L4 level, along with fractured ribs and general lacerations and bruising; claimant spent several months in hospital recovering from his injuries; insurer wholly admitted liability; conceded non-threshold injury and also conceded entitlement to damages for non-economic loss; claimant is retired; amount proposed for non-economic loss is $150,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 2 May 2024 | Member: David Ford

Brandon v QBE Insurance (Australia) Limited [2024] NSWPIC 244

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; claimant was driving his motor vehicle at a slow speed across a clearway zone in an attempt to make a right hand turn; insured driver approached the clearway zone at an excessive speed in the circumstances and did not keep a proper lookout for any vehicles attempting to cross the clearway zone; no explanation provided by the insured driver as to why he did not look out for vehicles attempting to cross the clearway zone; Held – motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.

Decision date: 10 May 2024 | Member: David Ford

AAI Limited t/as GIO v Gunaranchithan [2024] NSWPIC 246

Motor Accident Injuries Act 2017; settlement approval in the sum of $70,000; 71-year-old male; past and future economic only; no entitlement to non-economic loss; injuries to right shoulder supraspinatus tendon partial tear; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 13 May 2024 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241

Workers Compensation Act 1987; the applicant’s injury and resultant incapacity was found to be as a result of his failure to follow a reasonable management direction; Held – the respondent’s 11A defence was upheld.

Decision date: 9 May 2024 | Member: Lea Drake

Finlayson v Countrymade Furniture Pty Ltd [2024] NSWPIC 242

Claim for proposed spinal implant; dispute whether the treatment is 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 Ltd discussed and applied;Held – the provision of the implant is reasonably necessary as a result of workplace injury.

Decision date: 9 May 2024 | Member: Diana Benk

Ryan v Tomago Aluminium Company Pty Ltd [2024] NSWPIC 243

The applicant was found to have a continuing incapacity for work as a result of his injury, but his capacity to work was found to be greater than that assessed by his treating specialist; Held – he was found to have a capacity to undertake work from 31 March 2023 in retail sales for 38 hours per week at $27 per hour earning $1,026 gross per week.

Decision date: 9 May 2024 | Member: Lea Drake

Niemi v Premier Labour Services Pty Ltd (under External Administration) [2024] NSWPIC 245

Workplace Injury Management and Workers Compensation Act 1998; section 261; worker failed to make a claim within six months of date of injury; whether failure to make a claim was due to “other reasonable cause”; Albury Real Estate Pty Ltd v Rouse and Anor applied; Held – worker satisfied section 261(4); no bar to recovery; incapacity; gaps in evidence as to period of incapacity; worker was not incapacitated immediately following cessation of employment; totally incapacitated from 21 July 2021 to date; section 60 expenses; whether proposed surgery as a result of injury; medical opinion consistent that surgery was reasonably necessary; need for surgery arose as a result of injury.

Decision date: 10 May 2024 | Member: Parnel McAdam

Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249

Workers Compensation Act 1987; the applicant sought weekly payments of compensation, payment for spinal surgery and a general order for section 60 expenses arising from an injury occasioned by an aggravation to an underlying condition brought about by unergonomic workplace arrangements and an excessive workload; found there was no aggravation as alleged; Held – award for the respondent issued.

Decision date: 14 May 2024 | Member: Lea Drake

Kary v Red Metal Limited & Ors [2024] NSWPIC 250

Workers Compensation Act 1987; claim for lump sum death benefit and interest on lump sum; worker was a geologist who suffered “heart attack injury” while working on a mineral exploration site in the northern territory; liability disputed; applicant claimed that the worker sustained injury in the course of employment/arising out of employment, or in the alternative a “disease injury”; and sections 9a and 9b were satisfied; evidence that the worker was working in temperature exceeding 42 degrees Celsius and had complained about the heat prior to his death; medical evidence that heat was a substantial contributing factor to heart attack injury; consideration of Fisher v Nonconformist Pty Ltd, Secretary, Department of Communities and Justice v Galea, Seltsam Pty Limited v McGuiness, and Kennedy Cleaning v Petkoska; Held – the worker sustained injury in the course of employment, to which employment was a substantial contributing factor; section 9b satisfied; first respondent liable for payment of lump sum death benefit pursuant to section 25(1); matter listed for further preliminary conference to deal with issues relating to dependency, apportionment and interest.

Decision date: 14 May 2024 | Senior Member: Kerry Haddock

Toleafoa v R Polites Transport Pty Ltd & Ors [2024] NSWPIC 251

Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a); consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; Held – no other persons but the applicant, the second respondent, the third respondent, the fourth respondent, and the fifth respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) as agreed between the parties is approved; awards entered accordingly in favour of the applicant, the second respondent, the third respondent, the fourth respondent and the fifth respondent (including agreed amounts for fund management fees in relation to the third respondent and the fourth respondent, in accordance with section 25(1A)); awards also entered with the agreement of the parties in relation to the worker’s funeral expenses pursuant to section 26, and in relation to any claims for interest; the claims for weekly compensation payable to the second respondent, the third respondent, and the fourth respondent pursuant to section 25(1)(b), are discontinued with notations being made.

Decision date: 14 May 2024 | Member: Gaius Whiffin

Motor Accidents Medical Review Panel Decisions

Rahman v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 277

Motor Accident Injuries Act 2017; injury in motor accident on 8 October 2018; claimant on motor bike and struck by insured vehicle; thrown onto ground; assessment of permanent impairment; transverse fractures at three levels of lumbar spine assessed at 5%; ongoing cervical spine symptoms but not sufficient to establish DRE category II; left shoulder injury and ongoing minor restriction of movement assessed at 2%; injury to thoracic spine resolved; Held – claimant assessed at 7% permanent impairment due to physical injuries.

Decision date: 3 May 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Clive Kenna | Injury module: Spine and Upper Limb

Luckel v QBE Insurance (Australia) Limited [2024] NSWPICMP 278

Motor Accidents Compensation Act 1999; claimant’s application for review of Medical Assessor Shahzad’s assessment of 7% whole person impairment (WPI); claimant says she injured her upper and lower back, right hip and both knees on 18 January 2017; insurer challenged causation on basis of 2005 lower back injury and alleged long standing history of lower back complaints; claimant denied injuring lower back and said that injury was to her upper back; claimant had six months of treatment after the motor accident and then gap in medical records of two years before further complaints then a further gap; claimant had injury at work to upper back in September 2019 and lumbar spine laminoforaminotomy surgery in August 2021; Held – claimant injured both knees and thoracic spine in the accident from which she had recovered; claimant had lower back injury in 2005 which caused ongoing fluctuating level of symptoms before the accident; gap in recorded complaints to GP reflects minor nature of ongoing complaints; need for surgery not caused by accident; current WPI DRE II 5% due to no radiculopathy and previous WPI, DRE I 0%; no impairment to lower limbs as a result of accident; certificate revoked as figure of 7% included in it.

Decision date: 7 May 2024 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Peter Yu | Injury module: Spine and Lower Limb

QBE Insurance (Australia) Limited v Gohari [2024] NSWPICMP 279

Motor Accident Injuries Act 2017; threshold dispute; car brakes failed causing rear end collision; claimant subsequently underwent fusion surgery at L5/S1; radiculopathy; presence on prior occasion; David v Allianz applied; meaning of “should” in definition of atrophy (table 6.8 of the Guidelines); ordinary meaning of should does not mean that a precise measurement is mandatory; claimant suffered L3/4 disc injury; no prior symptoms; scan evidence showed disc protrusion; various references in medical opinions of radicular symptoms arising from the L3/4 disc; surgery at L5/S1 for pre-existing pars defect aggravated by the motor accident; unnecessary to decide if surgery resulted in injury being classified as non-threshold; Mandoukos v Allianz discussed; Held – claimant suffered a non-threshold injury.

Decision date: 7 May 2024 | Panel Members: Principal Member John Harris, Dr David Gorman, and Dr Drew Dixon | Injury module: Spine and Upper Limb

Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280

Motor Accident Injuries Act 2017; the claimant was driving home on 10 July 2020 on the M5 after work; he was travelling in the middle lane of three at approximately 100 kilometres per hour; the insured vehicle was travelling in the same direction; the two vehicles swerved into each other; there was an altercation between the two drivers; the claimant was struck by the insured vehicle as the claimant attempted to prevent it departing the scene; the insurer denied liability for the claim on the bases that the claimant was wholly at fault and that he suffered minor (now threshold) psychological injuries in the accident, namely adjustment disorder with mixed anxiety and depressed mood; Medical Assessor Wayne Mason so certified; certificate confirmed; Held – Review Panel finds PTSD not caused by the motor accident; motor accident caused the claimant to suffer an opioid use disorder in sustained remission, which is a non-threshold injury; Review Panel did not so certify as that condition/disorder outside terms of referral; Mandoukos v Allianz Australia Insurance Ltd applied.

Decision date: 8 May 2024 | Panel Members: Member Gary Victor Patterson, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural

Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 281

Motor Accident Injuries Act 2017; the claimant was driving home on 10 July 2020 on the M5 after work; he was travelling in the middle lane of three at approximately 100 kilometres per hour; the insured vehicle was travelling in the same direction; the two vehicles swerved into each other; altercation between the two drivers; insured driver intoxicated; claimant injured when struck by the insured vehicle as he tried to prevent it departing; incident captured on dash-cam footage taken by third vehicle; consideration of what constituted the motor accident; the insurer denied liability on the bases that the claimant was wholly at-fault and suffered only minor (now threshold physical injuries; claimant found to be 10% responsible for accident; Medical Assessor Alexander Woo certified that soft tissue injuries to the cervical and lumbar spine; both shoulders, right hip and right foot were all threshold injuries; Held – certificate confirmed.

Decision date: 8 May 2024 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

QBE Insurance (Australia) Limited v Al Baghdadi [2024] NSWPICMP 282

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 31 August 2020; a medical dispute arose as to whether or not the injury which Mr Al Baghdadi sustained was a threshold injury; the Medical Review Panel conducted an examination of the claimant; Medical Assessor Rickard-Bell’s determination of threshold Injuries revoked; Held – the Review Panel certifies that the injuries referred for assessment and caused by the accident, namely an adjustment disorder, is a threshold injury.

Decision date: 9 May 2024 | Panel Members: Member Terence Stern OAM, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural

Ali v AAI Limited t/as GIO [2024] NSWPICMP 283

Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by a Medical Assessor (MA) who determined that the claimant had a WPI not greater than 10%, that is, 7% WPI; review sought by claimant under section 63; claimant alleged a psychological injury caused by the death of his brother in a motor accident on 12 October 2016; clauses 1.5, 1.6, 1.7, 1.203 and 1.213 of Motor Accident Permanent Impairment Guidelines in respect of mental and behavioural disorders considered and applied; claimant did not meet the criteria for a DSM-5-TR psychiatric diagnosis; Held – the Panel revoked the certificate issued by MA Michael Li Ying Hong dated 18 November 2022; the Panel certified that the claimant did not sustain a recognised psychiatric injury caused by his brother’s death in the motor accident on 12 October 2016.

Decision date: 9 May 2024 | Panel Members: Member Anthony Scarcella, Dr Gerald Chew, and Dr Paul Friend | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Harris v Trojan Workforce No 3 Pty Ltd [2024] NSWPICMP 284

Appeal from assessment regarding cervical spine and nervous system; respondent conceded error regarding calculation of impairment for cervical spine; whether Medical Assessor (MA) had failed to consider medical material; whether he had given adequate reasons for a nil impairment for the nervous system; Held – WPI increased from 15% to 28% for a DRE IV cervical spine; Chapter 4 of the Guides considered and applied; nil impairment confirmed for nervous system; MA had addressed the relevant medical material and explained why he differed; presumption of regularity considered; whether impugned evidence rebutted presumption; Bojko v ICM Property Service Pty Ltd considered and applied; MA required to apply medical experience and expertise; Wingfoot Australia Pty Ltd v Kocak considered and applied.

Decision date: 10 May 2024 | Panel Members: Member John Wynyard, Dr Robin Fitzsimons, and Dr Mark Burns | Body system: Spine and Nervous System

Cook v Secretary, Department of Communities and Justice [2024] NSWPICMP 286

Appellant submitted Medical Assessor (MA) made errors with respect to his rating of her impairment in psychiatric impairment rating scale categories of travel and concentration, persistence and pace; Appeal Panel held MA’s ratings involved no error; Held – Medical Assessment Certificate upheld.

Decision date: 10 May 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric

Vu v U-Rect-It Pty Ltd [2024] NSWPICMP 287

Workplace Injury Management and Workers Compensation Act 1998; causation; whether Medical Assessor (MA) had made a finding as to injury by agreeing with respondent’s evidence; MA did not err; section 323; whether MA erred in making a deduction of one half; appellant suffered from pre-existing condition being congenital short pedicles; Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen distinguished; Held – MA erred; Medical Assessment Certificate revoked, new certificate issued with deduction of one tenth pursuant to section 323(2).

Decision date: 14 May 2024 | Panel Members: Member Parnel McAdam, Dr Christopher Oates, and Dr James Bodel | 14 Body system: Spine

Kennard's Hire Pty Ltd v Elliott [2024] NSWPICMP 288

Workplace Injury Management and Workers Compensation Act 1998; both parties appealed the Medical Assessment Certificate (MAC) regarding the deduction Medical Assessor (MA) made under section 323(1); whether MA gave proper consideration to the evidence; whether MA erred by assuming in accordance with section 323(2) that the deduction was 10%; whether MA erred by not applying paragraph 11.10 of the Guidelines; whether worker had pre-existing condition; Appeal Panel held that MA erred by not finding worker had pre-existing condition of recurrent depression but that error made no difference to the outcome; Held – MAC upheld.

Decision date: 14 May 2024 | Panel Members: Member Marshal Douglas, Dr John Baker, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Bartlett v Secretary, Department of Education [2024] NSWPICMP 289

Workplace Injury Management and Workers Compensation Act 1998; agreed injury to cervical spine and left shoulder; worker also suffered impairment of right shoulder; application of Guidelines paragraph 2.20 and AMA 5 section 16.4i; Nguyen v Pasarela Pty Ltd referred to; Held – Medical Assessment Certificate revoked.

Decision date: 14 May 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Brian Stephenson | Body system: Spine and Left Upper Extremity

Lekhin v Hairbiz International Pty Ltd [2024] NSWPICMP 290

The appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to several of the psychiatric impairment rating scale namely, self-care and personal hygiene, travel, concentration, persistence and pace, and failed to provide adequate reasons; Panel agreed; re-examination occurred; The MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked.

Decision date: 15 May 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Laxamana v Graphic Packaging International Australia Converting Ltd [2024] NSWPICMP 291

Appeal from finding that the appellant had not suffered industrial deafness; whether MA had given adequate reasons; whether he had failed to address reasoning of the medicolegal experts; whether he had reconciled his finding that the appellant's employment sufficient to cause industrial deafness with finding that there was no industrial deafness; Held – Medical Assessment Certificate revoked; referral in terms of medical dispute; MA finding made without jurisdiction; Skates v Hills Industries Ltd, Scone Race Club Ltd v Cottom, Jaffarie v Quality Castings Pty Ltd, and Haroun v Rail Corporation considered and applied; chapter 1.23 of the Guides relevant in reassessing entitlement.

Decision date: 15 May 2024 | Panel Members: Member John Wynyard, Dr Robert Payten, and Dr Brian Williams | Body system: Hearing

Bullers v State Of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICMP 292

Workplace Injury Management and Workers Compensation Act 1998; both parties appealed the Medical Assessment Certificate (MAC); worker submitted that there was additional relevant information and that the Medical Assessor (MA) made errors with respect to several psychiatric impairment rating scale (PIRS) categories; insurer submitted that MA erred by not making a deduction under section 323(1) and by adding a percentage whole person impairment (WPI) pursuant to paragraph 1.32 of the Guidelines for the effects of treatment; Appeal Panel found that additional relevant information would make no difference to outcome; Appeal Panel held that MA erred with respect to his ratings in some of the PIRS categories the appellant challenged; Appeal Panel held MA erred by not making a deduction under section 323(1) and by adding a percentage WPI pursuant to paragraph 1.32; Held – MAC revoked.

Decision date: 15 May 2024 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

QBE Insurance (Australia) Limited v Spence [2024] NSWPICMRP 4

Motor Accident Injuries Act 2017; review of decision of Merit Reviewer (MR) Medland in respect of the calculation of pre-accident weekly earnings (PAWE); claimant injured in motor vehicle accident on 12 August 2019; claimant asserted if uninjured he would have undertaken seasonal work for the 2019 harvest with Emerald Grain; question of whether earner under schedule 1 clause 2(a)(ii) or schedule 1 clause 2(b)(i); assessment of pre-accident weekly earnings; does schedule 1 clause 4(2)(c) require the likely weekly earnings to be averaged over 52 weeks; MR Medland certified PAWE to be $1,977.35; Held – claimant was an earner under schedule 1 clause 2(b)(i) where before the accident he had entered into an arrangement to undertake employment with Emerald Grain commencing on 21 October 2019; claimants earnings to be assessed under schedule 1 clause 4(2)(c); schedule 1 clause 4(2)(c) not require pre-accident weekly earnings to be averaged over 52 week period; obiter comment of Harrison AsJ in Allianz Insurance Australia Limited v Shamiri cited; Project Blue Sky v ABA, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Newcastle City Council v GIO General Ltd, and R v PLV cited; certificate of MR Medland revoked only as to amount of PAWE; Panel certified PAWE to be $1,898.40.

Decision date: 16 May 2024 | Merit Review Panel: Susan McTegg, Terence O’Riain, and Hugh Macken

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

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