Legal Bulletin No. 163
This bulletin was issued on 31 May 2024
Issued 31 May 2024
Welcome to the one hundred and sixty third 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
AAI Limited trading as GIO v Evic & Ors [2024] NSWSC 629
Civil procedure; joinder; whether the Attorney General for New South Wales is a necessary party; no question of principle; orders made; Held – the Attorney General for New South Wales be joined to the proceedings as fourth defendant pursuant to rule 6.24(1) of the Uniform Civil Procedure Rules 2005 on the basis that he bear his own costs and bear no liability for costs of the proceedings, subject to further order of the Court.
Decision date: 23 May 2024 | Before: Weinstein J
Presidential Member Decisions
David Jones Pty Limited v Singh [2024] NSWPICPD 29
Workers compensation; obligations of member to refer to arguments submitted; Wang v State of New South Wales [2019] NSWCA 263 considered and applied; whether a claim was made by a worker and disputed; Skates v Hills Industries Ltd [2021] NSWCA 142 applied; Held – the Certificate of Determination dated 5 July 2023 is revoked; matter is remitted to another Member for re-determination in accordance with these reasons.
Decision date: 21 May 2024 | Before: President Judge Phillips
Stuart v G Maroun and J Maroun and Workers Compensation Nominal Insurer [2024] NSWPICPD 30
Workers compensation; Section 9A of the Workers Compensation Act 1987; application of Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; ‘worker’; contract of employment: Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678, Mooney v White [2022] NSWPICPD 13; intention to enter legal relations: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; failing to respond to a substantial, clearly articulated argument relying upon established facts; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389, Day v SAS Trustee Corporation [2021] NSWCA 71, Wang v State of New South Wales [2019] NSWCA 263; drawing of inferences; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines [1952] HCA 19; 85 CLR 352, Fuller-Lyons v New South Wales [2015] HCA 31, Chen v State of New South Wales (No; 2) [2016] NSWCA 292; ‘in the course of employment’, WorkCover Authority of NSW v Walsh [2004] NSWCA 186, Dew v Maher [1996] NSWCA 154; 14 NSWCCR 56, Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36; section 14 of the 1987 Act, Scharrer v Redrock Co Pty Ltd [2010] NSWCA 365; 8 DDCR 243; re-determination pursuant to section 352 of the 1998 Act; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1, Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25; Held – Order No; 1 of the Certificate of Determination dated 12 May 2023 is confirmed; Order No; 2 of the Certificate of Determination dated 12 May 2023 is revoked; the matter is remitted to Senior Member Beilby to deal with those issues that remain, consistent with these reasons.
Decision date: 21 May 2024 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Davies v Allianz Australia Insurance Limited [2024] NSWPIC 208
The claimant sustained injury in a motor vehicle accident at a workplace on 20 September 2021; liability denied by the insurer due to insufficient information; claimant sought exemption under rule 99(3) of the Personal Injury Commission Rules 2021 where the claim involves issues of liability including contributory negligence, fault or causation and where a material witness resides outside the State; Held – no power to compel the attendance of witnesses in the Personal Injury Commission; complex issues of liability; court hearing provides subpoena power to secure attendance of witnesses including interstate witness; utilise subpoena power to access records; permit cross examination of witnesses; assessment process will not afford both parties a fair hearing; claim not suitable for assessment; exemption recommended; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 17 April 2024 | Member: Susan McTegg
Burgess Accident and Compensation Lawyers v Adams & Co Lawyers [2024] NSWPIC 222
Motor Accident Injuries Act 2017; assessment and apportionment of costs between the claimant’s current lawyers (the applicant) and former lawyers (the respondent); claimant injured and made a damages claim which settled at an assessment conference in September 2023 on an inclusive of costs basis; the claimant retained the applicant lawyers shortly before an assessment conference hearing which was vacated; the respondent lawyers had lodged the claim, provided particulars and lodged the application for assessment; Regulation 22(3) provides the Commission with power to apportion costs between the two legal practitioners and as the claim was a damages claim, the dispute was to be referred to a Member of the Motor Accidents Division; parties agreed that the Member should approach the assessment of costs on the basis the claim settled for $270,000 plus costs of $30,000; Held – the former legal representative was entitled to all of stages 1 and 2, 50% of stage 3 and two conference fees; the current solicitors were not entitled to stage 4, as the claim settled without the issuing of a certificate; costs for legal services were awarded to the former solicitor in the sum of $9,362 which was an apportionment of 43% of the total amount of legal services costs allowed; discussion of various provisions of the Regulation relevant to costs and an outline of the operation of the costs regime provided.
Decision date: 19 April 2024 | Member: Belinda Cassidy
Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) [2024] NSWPIC 252
Motor Accident Injuries Act 2017; statutory benefits claim; whether accident caused wholly by the fault of the claimant for the purposes of section 3.11 and section 3.28; where claimant’s vehicle, without warning, veered to the right, crossed the centre line, and collided with another vehicle; claimant had no recollection of the accident or circumstances leading to it; insurer relied on res ipsa loquitur to support an inference that the accident was caused by the claimant’s fault; evidence of habit and practice relied on by the claimant; whether inadvertence is fault; reliance by insurer on estoppel; whether costs order under section 8.10(4)(b) should be made; reference to Insurance Australia Limited t/as NRMA v Richards, Schellenberg v Tunnel Holdings Pty Ltd, Joy v Phillips, Mills & Co Ltd, Eichstaedt v Lahrs, Lahrs v Eichsteadt, Connor v Blacktown District Hospital, WorkCover Authority (NSW) v Billpat Holdings Pty Ltd, Acatincai v Insurance Commission of Western Australia, Elayoubi v Zipser, R v Gordon (No 4), Phelan v Melbourne Health, Gooley v NSW Rural Assistance Authority (No3), and Pell v The Queen, Davis v Swift, Australian Broadcasting Tribunal v Bond, Sungravure Pty Ltd v Meani, Medida Pty Ltd v Tobin, Aardvark Security Services Pty Ltd v Ruszkowski, Paul Perry Horse Training Pty Ltd v Harker, Davis v Bunn, Luxton v Vines, Anchor Products Limited v Hedges, AAI Ltd trading as GIO v Moon, San v Rumble (No 2), Ho v Professional Services Review Committee; Held – res ipsa loquitor arose for consideration; what occurred was sufficiently unusual to raise a probability that the course of the claimant’s vehicle is to be accounted for by some failure in due care; inference drawn that the claimant’s vehicle veering to the right was a result of her failing to exercise reasonable skill and care in the control and management of her vehicle; the claimant’s failure to exercise reasonable skill and care was causative of the accident; for the purposes of section 3.11 and section 3.28 the accident was caused wholly by the fault of the claimant; exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
Decision date: 15 May 2024 | Senior Member: Brett Williams
Walker v AAI Limited t/as GIO [2024] NSWPIC 253
Motor Accident Injuries Act 2017; claimant involved in a significant impact when forced head on into a power pole; had previous history of drug abuse; 10 years pre-accident claimant underwent intensive rehabilitation and had been abstinent until around the time of the accident; dispute on cause of relapse, post-accident criminal offences and inappropriate work relationship in breach of terms of employment; claim for past and future economic loss and superannuation; due to intervening events earning capacity difficult to accurately assess; buffers assessed considering claimant’s accident related injuries, age and prospects of future capacity; Held – damages assessed in the sum of $165,000 for past and future economic loss and superannuation pursuant to section 7.35(1) and section 7.36.
Decision date: 16 May 2024 | Member: Elyse White
Workers Compensation non-Presidential Member Decisions
Brakel v Sanctuary Contract Recruitment Pty Ltd & Ors [2024] NSWPIC 254
Workers Compensation Act 1987; application for apportionment of lump sum death benefit and funeral expenses in respect of the death of a worker; identification of dependants; Held – the applicant, second respondent and third respondent were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1) and 85A; agreement on interest.
Decision date: 16 May 2024 | Member: Rachel Homan
Fichera v State of New South Wales Police Force [2024] NSWPIC 255
Workers Compensation Act 1987; claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by bullying, intimidation and harassment; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal; Northern NSW Local Health District v Heggie, Hamad v Q Catering Ltd and Attorney General’s Department v K considered; Held – action taken by respondent was reasonable with respect to performance appraisal and section 11A applies; award for the respondent.
Decision date: 16 May 2024 | Member: Diana Benk
Culhana v State of New South Wales (NSW Police Force) & Ors [2024] NSWPIC 257
Workers Compensation Act 1987; application for compensation in respect of death of worker; deceased worker had an accepted psychological injury; whether Barrett’s oesophagus, adenocarcinoma and subsequent death resulted from the psychological injury; Kooragang Cement Pty Ltd v Bates referred to; material contribution; Held – deceased worker died as a result of injury for the purposes of sections 25(1) and 26.
Decision date: 17 May 2024 | Member: Rachel Homan
Workers Compensation Act 1987; permanent impairment compensation for hearing loss; worker died between date of claim and commencement of proceedings; threshold in section 66(1); date at which assessment should be made and application of presbycusis tables; assessment of permanent impairment; Etherton v ISS Property Services Pty Ltd referenced; Held – the assessment of permanent impairment does not exceed the threshold; no order.
Decision date: 20 May 2024 | Member: Catherine McDonald
BVN v Tomago Aluminium Pty Ltd [2024] NSWPIC 260
Workers Compensation Act 1987; claim for weekly payments in relation to an alleged psychological injury; whether applicant suffered injury as alleged, and if so whether the injury was caused by the respondent’s reasonable conduct with respect to performance appraisal, discipline and/ or the provision of employment benefits; Held – the applicant suffered injury as alleged; the injury was not wholly or predominantly caused by the respondent’s reasonable conduct as alleged; the applicant was and remains wholly incapacitated for employment as a result of his injury; the respondent is to pay the applicant weekly compensation from 22 May 2023 pursuant to section 37 to date and continuing.
Decision date: 21 May 2024 | Member: Cameron Burge
Wilcox v Integrated Living Australia Ltd [2024] NSWPIC 261
Workers Compensation Act 1987; section 60; whether proposed treatment reasonably necessary; claim for pulsed radiofrequency following failed fusion surgery in presence of spinal cord stimulated; competing medical opinions; Diab v NRMA Ltd applied; Held – treatment reasonably necessary; respondent pay applicant’s section 60 expenses.
Decision date: 21 May 2024 | Member: Parnel McAdam
Khalil v HealthShare NSW [2024] NSWPIC 262
Sections 4 and 66 of the Workers Compensation Act 1987 (1987 Act), section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); dispute as to whether injury to right shoulder is injury simpliciter or a disease injury due to the nature and conditions of employment; dispute as to consequential conditions of left shoulder, lumbar spine and cervical spine; dispute as to whether impairments of right shoulder, left shoulder, lumbar spine and cervical spine can be combined for the purposes of assessing impairment for section 66 of the 1987 Act; dispute as to admission of evidence pursuant to regulation 44 of the Workers Compensation Regulation 2016; McCarthy v Patrick Stevedores No 1 Pty Limited, Perry v Tanine Pty Ltd t/as Ermington Hotel, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, AV v AW, Ariton Mitic v Rail Corporation of NSW, Federal Broom Co Pty Ltd v Semlitch, Cemco (Australia) Pty Ltd t/as Carrall’s Engineering and Mining v Carrall, 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 – the applicant sustained a disease injury as defined by section 4(b) of the 1987 Act to her right shoulder being an aggravation of a disease in accordance with section 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015; the applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May 2015; the applicant sustained consequential conditions of her cervical spine and lumbar spine as a result of injury to her right shoulder on 2 May 2015 and consequential condition sustained to her left shoulder; the injuries to the right shoulder, left shoulder, cervical spine and lumbar spine can be combined for the purposes of assessing permanent impairment pursuant to section 66 of the 1987 Act.
Decision date: 21 May 2024 | Member: John Turner
Tololeski v Traffic Management Services (Aust) Pty Ltd [2024] NSWPIC 263
The applicant sought a finding of total incapacity following an injury in 2019 and a reoccurrence following a return to work in 2021; the respondent relied on finding of fitness from the applicant’s general practitioner and a rehabilitation provider; that evidence was not rejected; Held – finding of total incapacity made.
Decision date: 21 May 2024 | Member: Lea Drake
Firozabady v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 264
Claim for consequential conditions to right ankle, right knee and lumbar spine for injury to the first MTP joint in 2012; whether applicant had antalgic gait; whether other injuries relevant; Held – 1397 pages of ARD contained confusing and sometimes contradictory evidence; applicant continued at work for a year without treatment after injury until a junior ward doctor at the hospital where she was employed noticed her limping; applicant returned to pre-injury duties after arthrodesis and claim closed; then suffered unrelated injuries for which she was prescribed medication which alleviated her foot symptoms to the extent that she overused her injured foot; remained employed until 2016 but not supplied with recommended boot for another three years; award applicant.
Decision date: 22 May 2024 | Member: John Wynyard
Tysoe v State of New South Wales (NSW Police Force) [2024] NSWPIC 265
Workers Compensation Act 1987; section 67; injury to the cervical spine and left shoulder; dispute limited to the quantum of pain and suffering compensation payable pursuant to section 67; Government Supply Department v Abbott, Tyler v Marsden Industries, Jones Bros Bus Co Pty Ltd v Baker, Staker v North Broken Hill Pty Ltd, O’Neill v Star City Pty Ltd, Ainsworth Nominees Pty Ltd v Crouch, Rico Pty Ltd v Road Traffic Authority, Corporate Ventures Pty Ltd v Borovac,and Bohanna & Appleton v Bohanna cited; Held – award in favour of the applicant for pain and suffering compensation pursuant to section 67 in the amount of $12,000.
Decision date: 22 May 2024 | Member: John Turner
Bollore Logistics Australia Pty Ltd v Nicola Michelle Pendry-Clare & Ors [2024] NSWPIC 266
Death claim; determination of dependency, apportionment, and payment of death benefit, interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd,and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment.
Decision date: 22 May 2024 | Principal Member: Glenn Capel
Motor Accidents Medical Review Panel Decisions
McCartney v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 293
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 6 February 2020; a dispute arose as to whether the physical injuries to the lumbar spine, right leg, right foot, and thoracic spine are threshold injuries; the Medical Review Panel conducted an examination of the claimant; Held – Medical Assessor’s determination of threshold injuries partially confirmed; the thoracic spine was a soft tissue injury which has resolved.
Decision date: 9 May 2024 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Shane Moloney| Injury module: Spine and Lower Limb
Suncorp (QLD) v Jankowski [2024] NSWPICMP 294
Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 29 December 2015 on the Pacific Highway near Tyndale; the claimant was riding his motorcycle which was struck in the rear by a truck; injuries to neck, back and both shoulders; medical dispute as to whole person impairment; Medical Assessor Berry found 14% whole person impairment for left shoulder and lumbar spine; Review Panel assessed left shoulder by analogy because of inconsistencies in movement; Review Panel found soft tissue injury to lumbar spine not caused by motor accident; Held – certificate revoked.
Decision date: 13 May 2024 | Panel Members: Member Gary Victor Patterson, Dr Thomas Rosenthal, and Dr Michael Couch| Injury module: Spine, Upper Limb, and Skin - Scarring
QBE Insurance (Australia) Limited v Subocz [2024] NSWPICMP 295
Medical review of certificate of Medical Assessor (MA) Bodel; the claimant suffered injury in a motor cycle accident on 9 May 2017; the dispute related to the assessment of whole person impairment (WPI) under the Motor Accidents Compensation Act 1999 of cervical spine, lumbar spine, both shoulders, right hip, both knees, left ankle, and chest-undisplaced fracture; MA Bodel assessed 21% WPI; dispute as to causation of cervical spine, lumbar spine, both shoulders, both knees and right hip; Held – straightforward presentation; causation established other than for right knee; soft tissue injury; cervical spine DRE II giving 5% WPI; lumbar spine DRE II giving 5% WPI; right shoulder 1% WPI; left shoulder resolved; right hip 3% WPI; left knee 3% WPI, left ankle 4% WPI; chest- undisplaced fracture resolved; certificate of MA Bodel revoked and certified injures caused by accident gave rise to 22% WPI.
Decision date: 13 May 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Margaret Gibson| Injury module: Spine, Upper and Lower Limb
Musawi v AAI Limited t/as GIO [2024] NSWPICMP 296
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 11 June 2021; a medical dispute arose as to whether or not the injury which the claimant sustained was a threshold injury; the Medical Review Panel conducted an examination of the claimant; Held – Medical Assessor Wijetunga’s determination of threshold injuries was affirmed; the Review Panel certifies that the injury referred for assessment and caused by the accident, namely the lumbar spine injury, is a threshold injury.
Decision date: 14 May 2024 | Panel Members: Member Terence Stern OAM, Dr Rhys Gray, and Dr Les Barnsley| Injury module: Spine
Insurance Australia Limited t/as NRMA Insurance v Deakin [2024] NSWPICMP 297
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 11 October 2017; Medical Assessor (MA) McGrath determined that the injury to the right wrist gave rise to a whole person impairment (WPI) of 15% and the proposed treatment for 3 cortisone injections was reasonable and necessary; the insurer submitted that the Medical Assessor failed to provide proper reasons in support of a causation finding; the Medical Review Panel conducted an examination and considered the issue of causation according to the Guidelines; the Panel determined permanent impairment of the right wrist equated to a total WPI of 18%; the Panel further held the proposed treatments, past and future domestic assistance relating to the injury to the right wrist were caused by the accident and were reasonable and necessary; Held – the certificate of MA McGrath was revoked.
Decision date: 14 May 2024 | Panel Members: Member Terence Stern OAM, Dr Michael Couch, and Dr Sophia Lahz | Injury module: Upper Limb; Treatment Type: Domestic Assistance - Reasonable and Necessary, Domestic Assistance - Causation, and Facet Joint Injections
Insurance Australia Limited t/as NRMA Insurance v Delaney [2024] NSWPICMP 298
The claimant suffered injury in a motor vehicle accident on 18 June 2018; complaints of neck pain following the accident; no evidence of radiculopathy; on 8 December 2018 the claimant developed new symptoms in the neck when tackled whilst playing with children; cervical fusion surgery on 17 June 2019; Medical Assessor (MA) Nair certified injury to cervical spine was a threshold injury whilst the arm and shoulder conditions were residual cervical radiculopathy; Held – accident was capable of causing a disc prolapse that compromised the nerve; accident did not cause the C6 nerve compromise which caused by C5/6 disc bulge where the early MRI scan did not show evidence of marked foraminal encroachment on the right; there was no evidence of oedema, no complaint of pain and neurological symptoms in the distribution of the C6 dermatome between the accident and December 2018; a history of new symptoms developing after incident in December 2018; claimant sustained soft tissue injury to the cervical spine caused by the accident or threshold injury; soft tissue injury to both shoulders and both arms in accordance with the principle in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; certificate of MA Nair affirmed.
Decision date: 15 May 2024 | Panel Members: Member Susan McTegg, Dr Les Barnsley, and Dr Clive Kenna| Injury module: Spine and Upper Limb
AAI Limited t/as GIO v Iliev [2024] NSWPICMP 299
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 13 February 2019; Medical Assessor (MA) Home determined that the injuries referred by the Personal Injury Commission and caused by the accident gave rise to whole person impairment (WPI) of 12%; the Medical Review Panel considered the issue of causation according to the Guidelines and determined WPI on the clinical signs on examination found at the time of the assessment by the Review Panel; the Review Panel certified that the injuries referred and caused by the accident equated to a total WPI of 7%; Held – the certificate of MA Home was revoked and a new certificate issued.
Decision date: 16 May 2024 | Panel Members: Member Terence Stern OAM, Dr David Gorman, and Dr Shane Moloney | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
State of New South Wales (NSW Police Force) v Sochacki [2024] NSWPICMP 300
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; psychiatric impairment rating scale; appeal only re-categorisation of social and recreational activities, based on a statement in one report 10 months before Medical Assessment Certificate (MAC); Ballas v Department of Education and Minister for Immigration and Ethnic Affairs v Wu Shan Liang referred to; Held – MAC confirmed.
Decision date: 16 May 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Dr Nicholas Glozier| Body system: Psychological/Psychiatric
Baptistcare NSW & ACT v Matheson [2024] NSWPICMP 301
Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in that he failed to take an adequate history regarding the worker’s secondary and other psychological condition and the effects of treatment; that the worker should be examined by a member of the Appeal Panel; a re-examination is required to address the extent of the deduction that should be applied pursuant to section 323 and whether there should be any allowance for the effects of treatment; the Panel agreed; re-examination occurred; the MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked.
Decision date: 17 May 2024 | Panel Members: Member Deborah Moore, Dr John Baker, and Dr Nicholas Glozier| Body system: Psychological/Psychiatric
Stellar Asia Pacific Pty Ltd v Micallef [2024] NSWPICMP 303
Claim for primary psychiatric injury; the Medical Assessor (MA) assessed 15% whole person impairment (WPI) and found no pre-existing psychological condition; failure by MA to refer to clinical note of GP made in 2013 about three years before employment with the respondent in which the GP referred to a low mood and prescribed anti-depressants; appeal panel found that the MA erred in failing to address these clinical notes and did not provide adequate reasons for concluding that there no pre-existing condition; the appeal panel satisfied that there was a pre-exiting condition but found that it did not contribute to the impairment assessed; the assessment of total WPI by the appeal panel is the same as that made by the MA and in those circumstances the appeal panel will confirm the Medical Assessment Certificate (MAC) as the review has not led to a different result and should not be interfered with; Robinson v Riley applied; Held – MAC confirmed.
Decision date: 17 May 2024 | Panel Members: Member Carolyn Rimmer, Dr Nicholas Glozier, and Dr Michael Hong| Body system: Psychological/Psychiatric
Walsh v Michael Sklovsky Pty Ltd t/as ISHKA [2024] NSWPICMP 304
Whether Medical Assessor (MA) erred by concluding appellant had not achieved maximum medical improvement; whether appellant needed to be re-examined; Appeal Panel held MA erred by concluding appellant had not achieved maximum medical improvement; Appeal could correct that error and assess degree of permanent impairment of appellant based on MA’s findings, so no need to re-examine worker; Held – Medical Assessment Certificate revoked.
Decision date: 21 May 2024 | Panel Members: Member Marshal Douglas, Dr Christopher Oates, and Dr John Brian Stephenson | Body system: Spine
Jennar v Secretary, Department of Transport [2024] NSWPICMP 305
Workers Compensation Act 1987; threshold claim under section 32A in respect of injury to the lumbar spine in 1997; worker appealed in relation to application of paragraph 3.28 of the Guidelines; Panel satisfied that paragraph 3.28 applied and not table 17-33 of AMA5; no error in methodology used by Medical Assessor but failure to add additional 1% whole person impairment for medial meniscectomy; Held – Medical Assessment Certificate revoked.
Decision date: 21 May 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr Drew Dixon | Body system: Left and Right Lower Extremity
Metal Manufacturers v Hughes [2024] NSWPICMP 306
Workplace Injury Management and Workers Compensation Act 1998; appeal against failure by Medical Assessor to apply section 323 deduction; whether crane driver worker with many previous awards in his favour should have been the subject of section 323 deductions; worker been employed since 1988 when he was 28yrs; Held – the injury was a deemed injury and the appellant employer had failed to establish that the worker was suffering any pre-existing condition prior to his employment; Craigie v Faircloth & Reynolds Pty Ltd and Ors and Cullen v Woodbrae Holdings Pty Ltd referred to and applied; Medical Assessment Certificate confirmed.
Decision date: 21 May 2024 | Panel Members: Member John Wynyard, Dr Drew Dixon, and Dr Tommasino Mastroianni| Body system: Spine, Left and Right Upper Extremity
Firat v Ocart Pty Ltd (Liquidated) [2024] NSWPICMP 307
Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor’s (MA) ratings of appellant’s impairment in all psychiatric impairment rating scale (PIRS), other than employability, accorded with the evidence; whether the MA’s deduction under section 323(1) was based on correct criteria; whether the MA’s deduction under section 323(1) accorded with the evidence; whether the MA provided the appellant with medical advice and thereby took into account an irrelevant consideration; Appeal Panel found that the MA’s ratings of appellant’s impairment in the challenged PIRS and the MA’s deduction under section 323 accorded with the evidence; Appeal Panel found the MA applied correct criteria with respect to the section 323 deduction; Appeal Panel found the MA did not provide medical advice to the appellant; Held – Medical Assessment Certificate upheld.
Decision date: 22 May 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Graham Blom| Body system: Psychological/Psychiatric
Siemens Healthcare Pty Ltd v Flower [2024] NSWPICMP 308
Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of a one-tenth deduction under section 323; there was no basis upon which to make a section 323 deduction beyond one-tenth and the Appeal Panel can discern no error in the failure by the Medical Assessor to make a deduction greater than one-tenth for reasons which were adequately explained and correspond to a correct evaluation of the evidence that was before him; Held – Medical Assessment Certificate confirmed.
Decision date: 22 May 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong| Body system: Psychological/Psychiatric
Fornara v Tabcorp Holdings Ltd [2024] NSWPICMP 309
Whether Medical Assessor (MA) obtained a correct history regarding the appellant’s capacity in self-care and personal hygiene and in travel; whether MA’s rating of the appellant’s impairment in self-care and personal hygiene and in travel accorded with the evidence; Appeal Panel found MA obtained a correct history and his ratings of appellant’s impairment in self-care and personal hygiene and in travel accorded with the evidence and was correct; Held – Medical Assessment Certificate upheld.
Decision date: 22 May 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Blacktown City Council v Cimino [2024] NSWPICMP 310
Whether the Medical Assessor erred with his ratings of the respondent’s impairment in the psychiatric impairment rating scale categories for self-care and personal hygiene, social and recreational activities, and concentration persistence and pace; Appeal Panel found no error; Held – Medical Assessment Certificate upheld.
Decision date: 22 May 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Breda v State of New South Wales - Fire and Rescue NSW [2024] NSWPICMP 311
Workplace Injury Management and Workers Compensation Act 1998; appeal against 9% whole person impairment for psychological injury; claimant employed by Fire and Rescue; lodged fresh evidence in statement and psychologists report; whether fresh evidence admissible; whether Medical Assessor (MA) erred in assessment of social functioning and concentration, persistence and pace; Held – fresh evidence rejected; statement did not challenge MA reasons or conduct, rather that his rating should have been higher; statement rejected as of marginal weight; psychologist report rejected as infringing section 328(3); substratum of opinion incorrect; impermissibly cavilling with MA’s findings; breaching section 326 and doubts as to expertise; Medical Assessment Certificate confirmed.
Decision date: 22 May 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Debattista [2024] NSWPICMP 312
Workplace Injury Management and Workers Compensation Act 1998; wrist injury aggravating Keinbock’s disease; Medical Assessor (MA) diagnosed carpal tunnel syndrome as had some other examiners; no nerve conduction studies as required by AMA 5; assessment of the range of motion; whether MA was required to explain why his assessment differed from other examiners; State of NSW (NSW Department of Education) v Kaur referred to; Held – Medical Assessment Certificate revoked.
Decision date: 22 May 2024 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr David Crocker | Body system: Left and Right Upper Extremity, and Scarring
Sutton v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 313
Workplace Injury Management and Workers Compensation Act 1998; appeal from one tenth section 323 deduction, and failure to apply Chapter 1.32 of the Guides; whether Medical Assessor (MA) applied section 323 correctly; whether effects of treatment warranted application of a modifier; Held – appellant had serious prior brain condition treated by surgery 8 months before subject motor vehicle injury; MA found it was not causal, but that the motor vehicle injury had caused musculoligamentous strain of the neck; his reasons for the one tenth deduction were not clear, and reference to post-operative scarring not adequately explained; Cole v Wenaline Pty Ltd considered and applied; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked; section 323 not applied; no evidence that treatment effects qualified under Chapter 1.32 as substantial or total elimination of impairment.
Decision date: 22 May 2024 | Panel Members: Member John Wynyard, Dr Michael Davies, and Dr Robin Fitzsimons| Body system: Spine and Occipital Nerve
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.
Subscribeto receive legal bulletins to your inbox.