Legal Bulletin No. 164
This bulletin was issued on 7 June 2024
Issued 7 June 2024
Welcome to the one hundred and sixty fourth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Presidential Member Decision
Murphy v Westpac Banking Corporation [2024] NSWPICPD 31
Workers compensation; section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; application for an extension of time; reliance of worker on contemporaneous diary entries with respect to “bullying” by supervisor; whether the worker suffered a compensable injury of the type diagnosed by the medical practitioners upon which the worker relied; absence of contemporaneous medical notes by medical practitioners; Held – the appeal is dismissed; the Member’s Award is confirmed.
Decision date: 24 May 2024 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Grinter v CIC Allianz Insurance Limited [2024] NSWPIC 267
Motor Accident Injuries Act 2017; Motor Accident Injuries Regulations 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained serious injury in a motor accident on 8 July 2021; claimant was driving a vehicle which collided with the rear of a large trailer being towed by a truck; in dispute was whether the rear and side lights of the truck and trailer were on shortly before and at the time of impact; Held – on balance of probabilities lights were working on the trailer at the time of the accident; the insured truck would have been visible by the claimant at a distance of 113 metres providing sufficient time to either brake or steer his vehicle to avoid collision; the claimant ran into the back of the insured truck and trailer because he was not keeping a proper lookout; claimant was wholly at fault for accident; costs in favour of the claimant assessed on the basis of exceptional circumstances under section 8.10(4); application by insurer for an order under section 8.3(4) that it be permitted to pay legal costs to its lawyers outside of costs permitted by the Regulations on the basis of exceptional circumstances; application opposed by claimant; AAI Limited T/as GIO v Moon only available judicial guidance; in exercising discretion for insurer to pay legal costs to its lawyers in excess of the regulated amount appropriate yardstick provided where it has been found that exceptional circumstances exist to justify an order in favour of the claimant under section 8.10(4); where the insurer bears the evidentiary onus.
Decision date: 23 May 2024 | Member: Susan McTegg
Wright v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 268
Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; claimant injured in an accident at his workplace as a result of a collision between two uninsured forklifts; where accident did not occur on a “road” as defined; claim made on Nominal Defendant; whether section 1.10A applies to the claim; where claim made prior to amendments to the MAI Act by the Motor Accident Injuries Amendment Act 2022 to include section 1.10A; claims for compensation and damages made under the Workers Compensation Act 1987; damages claim settled; worker’s compensation rights extinguished; whether section 30 of the Interpretation Act 1987 applies; whether order for costs should be made in accordance with section 8.10(4)(b); Kraljevich v Lakeview and Star Limited, Maxwell v Murphy, Australian Education Union v General Manager of Fair Work Australia, ADCO Constructions Pty Ltd v Goudappel, Australian Education Union v General Manager of Fair Work Australia, QBE Insurance (Australia) Limited v Abberton, Patman v Fletcher’s Fotographics Pty Ltd, Project Blue Sky Inc v Australian Broadcasting Authority, Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd, AAI Ltd trading as GIO v Moon applied; Held – a contrary intention sufficient to displace section 30 of the Interpretation Act appears clearly from the text of schedule 4 part 7 section 14; the provision is designed to operate in a manner which is inconsistent with the maintenance of the existing right asserted by the claimant; the purpose and intention of section 1.10A is to make it clear that the provisions of the MAI Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages; provisions in division 2.4, including section 2.29, restrict the circumstances in which the Nominal Defendant has a liability for a statutory benefits claim; the role played by section 1.10A is consistent with the other provisions in division 1.3 and the overall scheme of the Act; section 1.10A and section 2.29 apply to the claim; the Nominal Defendant does not have a liability to pay statutory benefits to the claimant under Part 3 of the MAI Act because the accident in which he was injured did not occur on a “road”; orders for costs made under section 8.10(4)(b) and section 8.3(4) of the MAI Act.
Decision date: 23 May 2024 | Senior Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Leece v Nuveen Real Estate (Australia) Ltd & Ors [2024] NSWPIC 269
Claim for interest on lump sum death benefit; liability for payment of death benefit accepted; apportionment agreed. no agreement on claim for interest; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Pty Ltd, Kratz as executrix of the estate of the Late Owen Beddall v Qantas Airways Limited, Powell v McClenahan & Ors, Aseru Facility Services Pty Ltd v Harrison & Ors, and Rogers v State of New South Wales (Northern NSW Local Health District) & Ors; Held – award of interest on lump sum apportioned to applicant and second respondent from the date that each claim was “duly made”; award of funds management in respect of the interest payable on the amount apportioned to the second respondent; interest awarded at rate 2% above applicable RBA cash rate.
Decision date: 23 May 2024 | Member: Kerry Haddock
Singh v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 270
Permanent impairment claim; whether applicant suffered injury to his left shoulder as alleged and, if so, whether he suffered a consequential condition to his right shoulder; applicant had serious pre-existing problems in the left shoulder and alleged injury to that body system in the course of his employment; although he acknowledged pre-existing problems, the applicant asserted those issues had largely resolved before the alleged injury; Held – that assertion was not supported by contemporaneous medical evidence which demonstrated ongoing serious treatment for the left shoulder condition before the alleged injury; nevertheless, the evidence discloses the applicant suffered injury as alleged; the CCTV footage of the incident at issue is at best for the respondent ambiguous and at worst supportive of the applicant’s version of events, as is his contemporaneous reporting of the incident to the respondent and to his GP; the question of any deduction to be made for pre-existing conditions is, once injury is established, a matter for a Medical Assessor; the evidence also establishes the presence of a consequential condition to the right shoulder as a result of the injury to the left shoulder; both claimed body systems referred for medical assessment.
Decision date: 23 May 2024 | Member: Cameron Burge
Theoret v Port Macquarie Neighbourhood Centre Inc [2024] NSWPIC 271
Claim for cost of sacroiliac joint fusion surgery; causal nexus; absence of report of sacroiliac joint dysfunction for a period of 17 years from date of injury; suggested misdiagnosis and misdescription of complaint of pain in the low back; interval of time; Kooragang Cement Pty Ltd v Bates and Azzopardi v Tasman UEB Industries considered; onus of proof on the balance of probabilities; Nguyen v Cosmopolitan Homes considered and applied. Held – worker has not established that she suffered an injury to her sacroiliac joint; award for the respondent.
Decision date: 23 May 2024 | Member: Kathryn Camp
Papa v R P Bricklaying Pty Ltd [2024] NSWPIC 272
Workers Compensation Act 1987;claim for permanent impairment compensation pursuant to section 66; accepted injuries to right lower extremity (ankle) and injury/consequential condition of right lower extremity (hip) determined by Commission; accepted consequential condition of lumbar spine; claim for consequential condition of left lower extremity (knee) and right and left upper extremities (shoulders); respondent disputed consequential conditions of left lower extremity and right and left upper extremities; consideration of Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Nguyen v Cosmopolitan Homes; applicant sustained consequential condition of his left lower extremity as a result of injury to his right lower extremity; Held – award for respondent with respect to consequential condition of right and left upper extremities; matter remitted to President for referral to Medical Assessor.
Decision date: 23 May 2024 | Member: Kerry Haddock
McKay v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 273
Workers Compensation Act 1987; Claim for weekly compensation denied on the basis that the applicant was not a “worker” or a deemed worker within schedule 1 clause 2 of the Act; contract between applicant and first respondent entirely oral; Construction Forestry Maritime Mining and Energy Union & Anor v Personnel Contracting Pty Limited and UPVC Window Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare) considered and applied; Held – on consideration of the contractual language and the mode of execution of the contract finding that it was a contract for services; finding that at the date of the injury the applicant was not “regularly carrying on a trade business” and was deemed to be a worker in accordance with clause 2; Malivanek v Ring Group Pty Limited considered and applied; finding that the first respondent was not insured against his liability under the Act; award for applicant against the first respondent noting that the second respondent is deemed to be the insurer of the first respondent by section 142A.
Decision date: 23 May 2024 | Member: Paul Sweeney
Carrier v GIO General Ltd & Ors [2024] NSWPIC 275
Permanent impairment; whether applicant suffered second injury to same body system, and if so, whether matter should be referred for assessment where all IMEs agree on whole person impairment; the applicant suffered an accepted injury to his cervical spine with the first respondent; he allegedly suffered a second injury by way of exacerbation of that injury owing to the nature and conditions of his employment with the second respondent; Held – on balance, the evidence discloses the applicant suffered the second injury; although the underlying pathology in the applicant’s neck remains the same, his symptoms have worsened; it is the cause of the exacerbation one must examine, not the underlying pathology caused by the earlier accepted injury; the three IMEs being in agreement as to the overall percentage impairment means there is no need for referral to a Medical Assessor, as the role of determining apportionment falls to the Commission constituted by a Member; having regard to the totality of the lay and medical evidence, the first respondent is 65% responsible for the applicant’s impairment, and the second respondent 35%; orders made accordingly.
Decision date: 24 May 2024 | Member: Cameron Burge
Barden v Walgett Shire Council [2024] NSWPIC 276
Matter remitted from Presidential Unit after appeal by each party; claim for weekly benefits for psychological injury; respondent submitted that Member’s award of weekly benefits for a closed period had been revoked by Deputy President and required re-determination; applicant submitted that only the period in respect of which Member had made an award for the respondent required re-determination; respondent had paid weekly benefits in accordance with Member’s determination; applicant sought to amend application to close the period of the claim in written submissions in reply; respondent opposed amendment but did not submit it would suffer prejudice if amendment allowed; neither party able to rely on independent medical evidence that post-dated Member’s determination; applicant relied mainly on his statement evidence and clinical records; consideration of section 42 of the Personal Injury Commission Act 2020; Personal Injury Commission Rules 2021; Held – amendment to application allowed; award of weekly benefits was revoked by Deputy President and required re-determination; applicant had no work capacity during the period claimed; award for the applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987; respondent to have credit for payments made.
Decision date: 24 May 2024 | Member: Kerry Haddock
Workers Compensation Act 1987; application seeking orders that the applicant was not liable to reimburse the Insurance Fund an amount specified in a notice pursuant to section 145(1); extent of incapacity resulting from injury; whether treatment expenses reasonably necessary; whether notice valid in circumstances where applicant believed the payments had not been adequately explained or justified; Held – the injured worker had current work capacity for part of the period in which she was paid on the basis of no current work capacity; amount the applicant is required to reimburse the Insurance Fund reduced; the medical and related treatment expenses were reasonably necessary as a result of the injury.
Decision date: 24 May 2024 | Member: Rachel Homan
Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278
Workers Compensation Act 1987; the applicant sought a finding that she was injured by the nature and conditions of her employment and that liability for the surgical intervention recommended by her treating specialist be ordered against the respondent; Held – the applicant suffered a neck injury as a result of the nature and conditions of her employment; surgical intervention is reasonably necessary and arises from the injury suffered by the applicant from the nature and conditions of her employment; award in favour of the applicant for the payment of section 60 expenses incurred for the treatment of an injury sustained to the applicant’s neck, including the payment for surgery and ancillary treatment.
Decision date: 27 May 2024 | Member: Lea Drake
Hurley v BWN [2024] NSWPIC 279
Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted physical injury; whether psychological condition was a “primary psychological injury” or was a “secondary psychological injury” that was, by virtue of section 65A(1) excluded from giving rise to a claim for lump sum compensation for permanent impairment under section 66(1); Held – the applicant’s psychological injury is a “primary psychological injury” pursuant to section 65A that may give rise to a claim for lump sum compensation under section 66(1).
Decision date: 27 May 2024 | Member: Diana Benk
Gowman v Kimberly Clark Australia Pty Ltd [2024] NSWPIC 280
Claim in respect of lump sum benefits; discussion on effect of previous referral to Medical Assessor where claim discontinued before Certificate of Determination issued; applying Singh v B & E Poultry Holdings Pty Ltd; Held – applicant had had his assessment in relation to that injury; further claim made in relation to separate injurious events can be referred for assessment.
Decision date: 27 May 2024 | Senior Member: Elizabeth Beilby
Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWPIC 281
Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application for reconsideration to revoke a Certificate of Determination (COD) so that the worker can be assessed for impairment for worker with “highest needs”; applicant has undergone spinal surgery since the issue of the previous Medical Assessment Certificate (MAC); previous MAC had been confirmed on appeal; applicant now has higher assessment of whole person impairment then assessed under previous MAC; respondent did not consent to the recission of the COD or referral; consideration of sections 322A and 329 of the 1998 Act and section 57 of the Personal Injury Commission Act 2020; consideration of Hochbaum v RSM Building Services Pty Limited, Whitton v Technical and Further Education Commission t/as TAFE NSW, Gusavac v GPC Asia Pty Ltd, Bunfield v State of New South Wales (NSW Police Force), BEX v Koskela Pty Limited, Lazio Formwork Pty Ltd v Kelly, Kelly v Lazio Formwork Pty Ltd, Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Limited, Railcorp NSW v Registrar of the WCC of NSW; Held – COD rescinded; matter remitted to the President to determine whether it can be referred for a further assessment of permanent impairment as provided for by section 329(1).
Decision date: 28 May 2024 | Member: John Turner
Short v White Collar Blue Pty Ltd [2024] NSWPIC 282
Permanent impairment claim; left knee injury not disputed and will be the subject of referral to Medical Assessor; claimed lumbar spine injury and/or consequential condition disputed; whether applicant suffered lumbar injury, and if so, whether there is a causal connection between it and the left knee injury suffered several minutes earlier on the same day; whether the applicant suffered a consequential condition to his lumbar spine as a result of the left knee injury; Held – the applicant suffered a lumbar injury as alleged; the lumbar injury was causally connected to the left knee injury, noting the applicant’s uncontested evidence he undertook the heavy lifting task which caused the lumbar injury with increased loading on his back owing to the pain in his left knee; the applicant also suffered a consequential condition in his lumbar spine as a result of the left knee injury, caused by an altered gait and chronic limp; both left knee and lumbar spine referred for assessment, with a combined assessment to be provided.
Decision date: 28 May 2024 | Member: Cameron Burge
Townsend v CPB Contractors Pty Ltd [2024] NSWPIC 283
Workers Compensation Act 1987; the applicant sought an award for weekly payments of compensation or earning capacity rising after his resignation from employment; Held – finding that there was insufficient evidentiary material to find continuing capacity; an award for the applicant in relation to section 60 expenses.
Decision date: 28 May 2024 | Member: Lea Drake
Boulaine v Giorgio Armani Australia Pty Ltd [2024] NSWPIC 284
Workers Compensation Act 1987; claims for injuries to both knees, left shoulder, neck, back, and secondary psychological condition (accepted injuries); claim for treatment expenses pursuant to section 60 (physiotherapy treatment, exercise physiology, and psychological treatment); consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the treatment expenses are reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020, if so, the extent to which the treatment is required and the frequency in relation to which the treatment is required; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited considered; Held – physiotherapy treatment, exercise physiology and psychological treatment are reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020; she is to receive payment of $675 in past treatment expenses, re-imbursing to her amounts previously paid by her for psychological treatment and exercise physiology; she is to be afforded six months of physiotherapy treatment three times per week, six months of exercise physiology twice per week, and six months of psychological appointments once per month; if she requires treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard; the Commission currently makes no determination regarding the applicant’s entitlements following the periods referred to; awards for the applicant accordingly.
Decision date: 29 May 2024 | Member: Gaius Whiffin
McHatton v APCD Pty Ltd [2024] NSWPIC 285
Workers Compensation Act 1987; claim for weekly benefits and medical expenses in relation to a psychological injury; fact of injury admitted, however, respondent raises defence pursuant to section 11A in relation to discipline; Held – on a common-sense evaluation of the causal chain including the lay and medical evidence, the applicant’s injury was predominantly caused by an email forwarded by his manager to the sales team on 5 May 2023 which stated the sales team would be subject to disciplinary action if they did not comply with the longstanding directions of the respondent with regards to notifying the national manager of their whereabouts when not in the office; Kooragang Cement Pty Ltd v Bates followed; Smith v Roads and Traffic Authority of NSW discussed; the applicant’s perception that the email was targeted at him because of an interaction with his manager the day before the email was sent was the predominant cause of his injury; however, the applicant’s perception of the email is irrelevant when assessing whether it was reasonable; that process involves an objective analysis of the conduct having regard to established principles; Irwin v Director-General of Education NSWCC 14068/97, Commissioner of Police v Minahan, and Ritchie v Department of Community Services followed; having regard to the totality of the evidence, the proposed actions of the respondent with regards to discipline which were the predominant cause of the injury at issue, namely forwarding the email, were reasonable; award for the respondent.
Decision date: 29 May 2024 | Member: Cameron Burge
Motor Accidents Medical Review Panel Decisions
AAI Limited t/as GIO v Radosevic [2024] NSWPICMP 314
Motor Accident Injuries Act 2017; insurer’s review of Medical Assessor (MA) Bodel’s assessment of 18% whole person impairment (WPI); claimant injured in accident on 4 October 2020, alleged injuries to chest, spine (cervical, thoracic and lumbar), both shoulders and right knee; MA found impairments in both left and right shoulders, lumbar spine and right knee and found all other injuries resolved with no impairment; Held – chest injury and thoracic spine resolved with no symptoms and no impairment; lumbar spine and cervical spine injured in accident (soft tissue) with symptoms of pain but no radicular symptoms or signs of radiculopathy; DRE for each 0%; right knee injury produced minor symptoms but no loss of motion, no indication of arthritis and no ligament laxity therefore no impairment; Panel determined shoulder range of motion could not be used due to inconsistency and variation; MA’s satisfied there was an impairment which was analogous to crepitation of the acromioclavicular joint and assessed 3% for the right and 2% for the left shoulder.
Decision date: 17 May 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Oates, and Dr Thomas Rosenthal | Injury module: Spine, Upper and Lower Limb
Allianz Australia Insurance Limited v Herrera [2024] NSWPICMP 315
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 6 April 2021; Medical Assessor (MA) Curtin determined that the injuries to the skin (facial scarring), and the scarring to the left knee gave rise to a whole person impairment (WPI) of 3%; the Medical Review Panel considered the issue of causation according to section 6.6 of the Guidelines and determined permanent impairment of the face scarring and left knee scarring equated to a total WPI of 3%; Held – the Certificate of the MA Curtin was affirmed.
Decision date: 17 May 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Michael Glynn | Injury module: Skin
Insurance Australia Limited t/as NRMA Insurance v Brewer [2024] NSWPICMP 317
Motor Accident Injuries Act 2017; claimant was a driver in a utility that collided with a car in an intersection; insurer alleged pre-existing psychiatric conditions including depression; claimant denied pre-existing psychiatric injury; original assessment found the claimant sustained post-traumatic stress disorder/persistent depressive disorder; claimant assessed with a whole person impairment (WPI) of 22%, claimant’s pre-existing WPI for a previous motor accident in 2017 found to be 5% with 1% allowance for treatment giving a total WPI of 18%; insurer alleged pre-existing psychiatric conditions including depression attributed to previous motor accident; claimant denied pre-existing psychiatric injury; Panel determined that the claimant does not meet DSM-5 criteria for major depressive disorder or post-traumatic stress disorder; Panel’s diagnosis of the claimant’s symptomatology and presentation was unspecified trauma and stressor related disorder; DSM-5-TR F43.9; Panel found degree of permanent impairment caused by the motor accident is 5%; claimant may have had a depressive psychiatric impairment as a result of the 2017 motor accident but that he recovered from pre-existing impairment prior to the occurrence of the subject motor accident in 2020; Held – original medical certificate set aside.
Decision date: 20 May 2024 | Panel Members: Member Ray Plibersek, Dr Gerald Chew, and Dr Tom Newlyn | Injury module: Mental and Behavioural
Nyarkoa v Allianz Australia Insurance Limited [2024] NSWPICMP 318
Motor Accident Injuries Act 2017; claimant was injured when her car was hit from behind whilst turning into a driveway; she received injuries to her spine, shoulders, knee and leg; also claimed for treatment and care for a right shoulder rotator cuff surgery; the Panel found a total whole person impairment of 0%; as a result of the accident the claimant sustained a number of soft tissue injuries including bilateral knee sprain and lumbar spine; no evidence of significant structural damage or injuries shown to spine, shoulders, knees, legs or hands caused by the motor accident; GP records show that claimant has a significant past history of injury and disability including bilateral knee replacements; workplace accident in 2001 where claimant fell down some stairs and injured her left leg and knee; claimant’s GP records also show a history of shoulder and back complaints prior to the subject motor accident; Panel also found that the proposed right shoulder rotator cuff repair did not relate to the injury caused by the motor accident and was not reasonable and necessary; Held – original medical certificate set aside regarding permanent impairment; original medical certificate affirmed regarding proposed right shoulder rotator cuff surgery.
Decision date: 20 May 2024 | Panel Members: Member Ray Plibersek, Dr Thomas Rosenthal, and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb
Allianz Australia Insurance Limited v BMO [2024] NSWPICMP 320
Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; degree of permanent impairment that has resulted from psychiatric injury caused by motor accident ; where Medical Assessor (MA) found permanent impairment of 24%; surveillance evidence relied on by insurer; claimant’s reliability in issue; Held – while the Panel has given the surveillance weight, the whole of the evidence has been taken into account; the claimant suffered psychological injury as a consequence of the accident; the psychological injury gave rise to a permanent impairment of 11%; as different findings made with respect to the diagnosis and permanent impairment MA’s certificate revoked and new certificate issued.
Decision date: 21 May 2024 | Panel Members: Senior Member Brett Williams, Dr Michael Hong, and Dr John Baker | Injury module: Mental and Behavioural; Treatment Type: Gym/Exercise Program
Wood v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 321
Review of certificate and reasons of Medical Assessor (MA) Harrington of 11 June 2021; claimant injured on 10 June 2015; dispute relating the whole person impairment assessment where MA Harrington found 0% whole person impairment (WPI) for injuries to the claimant’s hip and lumbar spine on the basis the injuries had resolved; claimant previously examined for treatment and care determination by MA Machart who found that surgery by way of a right L5/S1 rhizolysis was reasonable and necessary and causally related to the accident; claimant submitted the Panel was bound to follow that assessment; claimant did not seek immediate treatment following the accident and saw his GP six weeks after the accident; claimant developed right sided sciatica 2 years post-accident and attributed this to the accident; claimant had a motor bike accident in 2016 causing injuries requiring hospitalisation and then a Thai massage in July 2017 when the masseurs knee pushed down on the claimant’s right gluteal area with acute increase in low back pain; Panel not satisfied that MA Machart had all relevant material before him when making his determination; Panel satisfied that the claimant’s right hip disability was not related to the accident and was caused by subsequent events; Held – Panel not bound by the decision of MA Machart; the claimant’s right sided L5/S1 lesion developing two years post-accident was not related to the accident; surgery by way of an L5/S1 microdiscectomy was not reasonable and necessary due to the accident but might have been reasonable and necessary due to intervening events; claimant had a DRE 1 category soft tissue injury to his lumbar spine; claimant had 0% WPI; certificate and reasons of MA Harrington revoked.
Decision date: 21 May 2024 | Panel Members: Member Alexander Bolton, Dr Sophia Lahz, and Dr Christopher Oates | Injury module: Spine and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Abraham [2024] NSWPICMP 322
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 20 September 2019; Medical Assessor (MA) Assem determined that the injuries referred by the Personal Injury Commission and caused by the accident gave rise to a whole person impairment (WPI) of 11%; the Medical Review Panel considered the issue of causation according to the Guidelines and determined the issue of WPI as determined on the clinical signs on examination found at the time of the assessment by the Review Panel; the Review Panel found permanent impairment to the right upper extremity and the cervical spine; the Review Panel certified that the injuries referred and caused by the accident equated to a total WPI of 13%; Held – the Certificate of MA Assem was revoked and a new certificate issued.
Decision date: 22 May 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb
AAI Limited t/as AAMI v Burns [2024] NSWPICMP 323
Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 3 February 2019; medical dispute review under section 7.26 about whether the motor accident caused whole person impairment (WPI) greater than 10%; Medical Assessor (MA) found accident did not injure left hip; examined and assessed the claimant’s scarring and range of motion in left leg at 25% permanent impairment including left hip injury range of motion; insurer alleged error because MA did not consider the neuropathy and use of walking stick before the accident; Panel re-examined claimant; considered healthy before accident; lack of documentary evidence to calculate pre-accident permanent impairment; no deduction; Held – claimant reassessed at 29% permanent impairment; different outcome for body parts; previous certificate revoked.
Decision date: 22 May 2024 | Panel Members: Member Terence O'Riain, Dr Drew Dixon, and Dr Christopher Oates | Injury module: Spine, Skin, Upper and Lower Limb
Alzebari v QBE Insurance (Australia) Limited [2024] NSWPICMP 324
Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 May 2019; Medical Assessor (MA) Samuell determined that the injuries referred by the Personal Injury Commission and caused by the accident had resolved and consequently gave rise to whole person impairment (WPI) of 0%; 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 Panel; the Review Panel certified that the claimant has a valid DSM-5-TR psychiatric diagnosis of prolonged grief disorder which was caused by the accident and equated to a total WPI of 5%; Held – the Certificate of MA Samuell was revoked and a new certificate issued.
Decision date: 23 May 2024 | Panel Members: Member Terence Stern, Dr Gerald Chew, and Dr Thomas Newlyn | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v BTR [2024] NSWPICMP 325
Review of certificate of Medical Assessor (MA) Home; the claimant sustained fractured right femur, fractured right sacral ala, a fracture of the 1st digital phalanx, second and 3rd proximal phalanx of the right foot; non-displaced calcaneal anterior process fracture; lateral malleolus fracture; ongoing back pain, thigh discomfort, ankle and neck pain; MA Home found physical injuries gave rise to need for past domestic assistance and for future domestic assistance from date of assessment and continuing for one year; whether treatment reasonable and necessary referred back to Medical Assessment Services for assessment by Occupational Therapist (OT); question of child care assistance for two children including autistic son; claim for past domestic assistance abandoned by claimant; Held – need for child care for son reasonable and necessary but does not relate to the injury caused by the accident; physical injuries give rise to need for domestic assistance from the date of the medical assessment and continuing for one year relating to the injury caused by the accident; whether future domestic assistance reasonable and necessary in the circumstances referred back to Medical Assessment Service for assessment by an OT.
Decision date: 23 May 2024 | Panel Members: Member Susan McTegg, Dr Margaret Gibson, and Dr Shane Moloney | Injury module: Upper limb
Workers Compensation Medical Appeal Panel Decisions
BRN v The Intermedia Group Pty Ltd [2024] NSWPICMP 256
Workplace Injury Management and Workers Compensation Act 1998; whether additional information would change the outcome; whether Medical Assessor (MA) afforded procedural fairness to the appellant; whether MA’s ratings of appellant’s impairment in self-care and personal hygiene and in travel are correct based on the history the MA obtained; Appeal Panel held the additional information would not change the outcome and section 327(3)(b) not established; Appeal Panel found MA afforded the appellant procedural fairness; Appeal Panel found the MA’s rating of appellant’s impairment in travel involved no error but there was error with respect to MA’s rating of appellant’s impairment in self-care and personal hygiene; Held – Medical Assessment Certificate revoked.
Decision date: 1 May 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Douglas Andrews| Body system: Psychological/Psychiatric
Janissen v Halfway Hamburgers Pty Ltd [2024] NSWPICMP 326
Whether Medical Assessor’s (MA) ratings of appellant’s impairment in psychiatric impairment rating scale categories of social functioning, concentration persistence and pace, and employability correct based on the evidence; Appeal Panel held MA did not have regard to all the evidence; appellant re-examined; Held – Medical Assessment Certificate revoked.
Decision date: 23 May 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Gray v State of New South Wales (Central Coast Local Health District) [2024] NSWPICMP 327
Workplace Injury Management and Workers Compensation Act 1998; assessment by two Medical Assessors (MA) for orthopaedic injuries, scarring and for hearing loss; worker appealed regarding assessment of, and section 323 deduction for, hearing loss and regarding assessment of knee injury; employer appealed regarding lack of section 323 deduction for cervical spine; no error in primary assessment of hearing loss but MA was in error to make a deduction based on documents concerning another person; no error in assessment of knee injury on the day; Cole v Wenaline Pty Ltd referred to; no error in declining to make section 323 deduction regarding cervical spine; Held – Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Catherine McDonald, Dr Henley Harrison, and Dr Gregory McGroder | Body system: Right Upper Extremity, Left Lower Extremity, Spine, and Hearing
Martin v Busways Wyong North Pty Ltd [2024] NSWPICMP 328
The appellant submitted that the Medical Assessor erred in his assessments with respect to two of the psychiatric impairment rating scale categories, namely, concentration, persistence and pace and employability; Panel agreed; re-examination occurred; the MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Calvary Retirement Communities Hunter- Manning Ltd v DeGioannis [2024] NSWPICMP 329
Workplace Injury Management and Workers Compensation Act 1998; knee injury; section 323 deduction; previous ACL injury disclosed in radiology; work-related knee injury, meniscectomy and then total knee replacement; Medical Assessor accessed some records from local health service but did not provide them to parties; procedural fairness; section 323 deduction can be assessed from radiology; Held – Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Doron Sher | Body system: Right Lower Extremity
New Stand Shop Fitters Pty Ltd v Barber [2024] NSWPICMP 330
Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against 15% whole person impairment (WPI); whether Medical Assessor (MA) erred in not differentiating the impact on activities of daily living between the cervical spine and left upper extremity injuries; whether MA erred in not making a section 323 deduction; Held – additional WPI available for ADL restrictions only as provided in guides; no relevant authority cited for suggestion that there be a differentiation; MA gave adequate reasons for not applying section 323; Vitaz v Westform NSW Pty Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; Ryder v Sundance Bakehouse considered; Medical Assessment Certificate confirmed.
Decision date: 24 May 2024 | Panel Members: Member John Wynyard, Dr Roger Pillemer, and Dr Margaret Gibson | Body system: Spine and Upper Left Extremity
Garrett v International Health and Medical Services Pty Ltd [2024] NSWPICMP 331
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) correctly identified the injury referred for assessment; whether MA assessed the appellant’s permanent impairment from the referred injury; whether MA incorrectly apportioned appellant’s permanent impairment between the various matters from which the appellant’s injury arose; whether MA incorrectly made a deduction under section 323(1); Appeal Panel held that it is for the Commission to determine any controversy between the parties regarding what factors gave rise to the appellant’s injury and what the injury was the appellant suffered in her employment, and not for the MA or the Appeal Panel to do so; Appeal Panel held that MA wrongly apportioned appellant’s impairment between the various matters from which the appellant’s injury arose; Appeal Panel held MA erred by making a deduction under section 323; Held – Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Davistown RSL Club Ltd v Conley [2024] NSWPICMP 332
Appeal by the employer alleging Medical Assessor (MA) failed to exclude impairment from subsequent injury; the overall impairment assessment of the cervical spine is 30% as assessed by the MA and not the subject of complaint on appeal; excluding from the impairment assessment one tenth (3%) to take account of the impairment that results from the further injury in 2014 leaves 27%; this is reasoned on the basis that consistent with the history taken by the MA and consistent with a review of the other evidence before him, the 2009 injury was the index injury from which the worker never recovered fully; surgery was considered as a treatment option after the 2009 injury but not pursued because the worker was reluctant to undertake surgery at that time; she returned to work only ever performing modified duties; remained symptomatic after the 2009 injury; in 2014 after lifting a single tray of glasses she suffered an aggravation of the previous injury; she again returned to work continuing to perform modified duties.; resigned in 2019 and ultimately she came to surgery in 2021; in the Appeal Panel’s view, excluding one tenth from the overall impairment assessment accounts for the degree of any permanent impairment that can be considered to result from the 2014 incident; Held – Medical Assessment Certificate revoked.
Decision date: 27 May 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Tomassino Mastroianni | Body system: Spine
Secretary, Department of Communities and Justice v Dykes [2024] NSWPICMP 333
Workplace Injury Management and Workers Compensation Act 1998; whether rating of lower extremity impairment by reference to Table 17-22 of AMA 5 for patella subluxation or dislocation with residual instability was properly explained; whether rating of lower extremity impairment by reference to Table 17-22 of AMA 5 for patella subluxation or dislocation with residual instability was supported by the evidence; whether the assumption that Medical Assessor (MA) made under section 323(2) that deductible proportion for section 323(1) was 10% was at odds with the evidence; Appeal Panel held MA adequately explained his assessment and that the findings he made and history he obtained supported application of Table 17-33; Appeal Panel held section 323(2) assumption was not at odds with the evidence; Held – Medical Assessment Certificate upheld.
Decision date: 27 May 2024 | Panel Members: Member Marshal Douglas, Dr Doron Sher, and Dr David Crocker | Body system: Lower Left Extremity and Scarring
DMAC Personnel Pty Ltd v Williams [2024] NSWPICMP 334
Workplace Injury Management and Workers Compensation Act 1998; whether the deduction Medical Assessor (MA) made under section 323(1) should have been greater than 10%; whether MA had proper regard to the evidence when rating respondent’s impairment in social functioning and in concentration persistence and pace; whether MA adequately explained his ratings of respondent’s impairment in social functioning and in concentration persistence and pace; Appeal Panel held MA did make an error with respect to section 323 by finding the respondent had a pre-existing condition, but neither party identified that error so Appeal Panel could not correct it; Appeal Panel found that an error of the type the appellant contended the MA made with respect to the section 323 deduction was not an error; the Appeal Panel found MA did not adequately explain his reasons for his ratings of respondent’s impairment in social functioning and in concentration persistence and pace; respondent re-examined; based on history obtained and findings made at re-examination, Appeal Panel rated respondent’s impairment in social functioning and in concentration persistence and pace the same as MA did, so notwithstanding errors identified in Medical Assessment Certificate (MAC), no difference in outcome; Held – MAC upheld.
Decision date: 27 May 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Ash Taylor | Body system: Psychological/Psychiatric
Harris v Australian Health & Nutrition Association Ltd [2024] NSWPICMP 335
The appellant suffered industrial deafness; grounds of appeal related to whether the Medical Assessor (MA) erred in not assessing loss of hearing for occupational industrial deafness at and below 2000Hz; finding of fact by MA that noisy employment was for a period of 21 years was unchallenged; audiogram undertaken by MA unchallenged; appellant submitted configuration and length of exposure consistent with examples in the Guidelines for including lower frequencies and otherwise relied on report of Dr Fagan; appellant misstated factual finding by MA as to length of exposure; audiogram inconsistent with examples and Dr Fagan’s assessment; audiogram for levels at 2000Hz were not sufficiently different from 3000Hz and inconsistent with occupational noise exposure; Held – Medical Assessment Certificate confirmed.
Decision date: 27 May 2024 | Panel Members: Principal Member John Harris, Dr Robert Payten, and Dr Brian Williams | Body system: Hearing
Swat v Southern Metropolitan Cemeteries Land Manager [2024] NSWPICMP 336
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; section 323; worker had history of episodes of depression; whether worker suffered from a pre-existing condition or had a genetic vulnerability; Held – evidence of previous bouts of depression constituted more than a vulnerability; Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen distinguished; consideration of psychiatric impairment rating scale of travel; worker was working as a courier; consistent with class 1 impairment; no error or incorrect criteria; Medical Assessment Certificate confirmed.
Decision date: 29 May 2024 | Panel Members: Member Parnel McAdam, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Rabiei v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 10
Miscellaneous claims assessment; claimant’s application for merit review in respect of insurer’s determination the claimant’s pre accident weekly earnings (PAWE) was $1171.16; claimant is a self-employed landscaper and retail sales assistant; claimant submitted substantial payments of cash were made by his clients in respect of the landscaping work and submitted such cash payments should be taken into account by the insurer when assessing PAWE; the insurer required verification of such payments by the clients in the form of statutory declarations; claimant produced letters from clients verifying cash payments but was unable to obtain clients to sign statutory declarations; determined in view of the substantial amount of cash payments; the requirement of the insurer is not unreasonable in the circumstances and accordingly determined such cash payments could not be taken into account by the insurer when calculating PAWE; Held – decision of the insurer is affirmed; claimant’s PAWE is $1,171.16.
Decision date: 24 May 2024 | Merit Reviewer: David Ford
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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