Legal Bulletin No. 165

Issued 14 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 Decisions

Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32

Workers compensation; appeal from reconsideration application; former sections 350 and 378 of the Workplace Injury Management and Workers Compensation Act 1998; section 66(1A) of the Workers Compensation Act 1987; previous assessment of whole person impairment of 12% for the purposes of lump sum compensation; subsequent total knee replacement; section 327(7) of the Workplace Injury Management and Workers Compensation Act 1998; worker seeks to have Certificate of Determination rescinded so an appeal or reconsideration can be made against previous assessment of whole person impairment; worker also seeks assessment of whole person impairment for the purposes of section 39 of the Workers Compensation Act 1987; series of ‘trial and error’ attempts to have the worker’s permanent impairment assessment reviewed or reconsidered; whether reconsideration application made and determined; Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; UBS AG v Tyne [2018] HCA 45; Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 and Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113; 102 NSWLR 941 discussed and applied; Held – leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; the appeal is upheld; the Certificate of Determination dated 9 May 2023 (as amended on 24 July 2023) is revoked.

Decision date: 31 May 2024 | Before: Acting Deputy President Kylie Nomchong SC

Secretary, Department of Education v Willow [2024] NSWPICPD 33

Workers compensation; section 11A(1) of the Workers Compensation Act 1987; whether action taken or proposed to be taken with respect to discipline; factual findings; considering Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; Department Education and Training v Sinclair [2005] NSWCA 465; Held – the Certificate of Determination dated 8 May 2023 is confirmed.

Decision date: 5 June 2024 | Before: Acting Deputy President Michael Perry

Motor Accidents non-Presidential Member Decisions

Attard v QBE Insurance (Australia) Limited [2024] NSWPIC 207

Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; complex causation issues; accident involving a forklift and a truck at claimant’s workplace; claimant instructed by a supervisor to recover a truck that had become stuck on a gutter by attaching a chain to the forklift the claimant was operating; the chain snapped under tension and whipped into the forklift striking the claimant in the face causing injury; whether the motor accident fell within the definition of “motor accident” in section 1.4; whether the motor accident was a result of any fault on the part of the owner of the relevant vehicle within the requirements of section 4.1 or whether it was related to the system of work; in respect of the forklift subject to an unregistered vehicle permit, whether the motor accident occurred in the use or operation of a vehicle on “any road or related area”; sections 2.3(b) and 4.1(1); likely that lay witnesses and liability expert witness will be required to give oral evidence; claimant seeks to proceed against a non-CTP party (his employer); Insurance Australia Limited t/as NRMA Insurance v Banos, IAG Limited t/as NRMA Insurance v Khaled, IAG Limited t/as NRMA Insurance v Qin,and IAG Limited t/as NRMA Insurance v Xie considered and applied; Held – a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 22 April 2024 | Member: Anthony Scarcella

Insurance Australia Limited t/as NRMA Insurance v Zelewski [2024] NSWPIC 287

Motor Accidents Compensation Act 1999; self-represented claimant; pre-accident medical history disclosed significant medical injuries, disabilities, and symptoms; reliability of claimant’s evidence approached with caution; whole person impairment assessed not greater than 10%; issues with claimant pre-accident employment, no records relied upon and contract for closed period; claimant 66 years old; damages limited to economic loss and treatment; Held – damages assessed in the sum of $118,369 for past and future economic loss and superannuation and treatment expenses pursuant to section 94.

Decision date: 14 May 2024 | Member: Elyse White

Dennis v Transport Accident Commission [2024] NSWPIC 288

Motor Accident Injuries Act 2017; recommendation claim not suitable for assessment; claimant’s son sustained a severe traumatic brain injury with multiple orthopaedic injuries whilst a passenger in a motor vehicle; claimant has commenced a mental harm claim; the son’s claim has been exempted from the Commission based on lack of legal capacity and has been commenced in the jurisdiction of the District Court; claimant will be acting as the tutor for the son in those proceedings; submitted the two related claims should be determined together by the District Court; submitted on behalf of the claimant the matter should be exempted on discretionary grounds; Held – the matter be exempted under section 7.34 (1)(B) on the grounds the claim involves issues of liability, including contributory negligence, fault or causation; Rule 99(3)(b) of the Personal Injury Commission Rules 2021; and a claimant or witness considered by the Commission to be a material witness resides outside the State; Rule 99(3)(c); recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 14 May 2024 | Member: David Ford

Ok v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 290

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36 (3) and 7.36 (4); claimant was a pedestrian at Sydney International Airport when he was struck by the insured vehicle which was departing from the airport departures ramp; insured admitted liability and no allegation of contributory negligence; claimant suffered injury to right hip and lower back as well as psychological injuries; claimant is a manager of a restaurant; claim for past economic loss for a closed period of nine months only; Held – claimant is entitled to damages for past economic loss.

Decision date: 17 May 2024 | Member: David Ford

CIC Allianz Insurance Limited v Slyney [2024] NSWPIC 293

Motor Accident Injuries Act 2017;settlement approval; claimant T-boned at an intersection; conflicting statements whether the claimant or insured driver faced a green light; insurer took a sensible approach and without admitting liability proposed an offer of settlement; entitlement only to past and future economic loss and superannuation; claimant 68 years old; was working full time at the date of accident; work capacity limited to one day a week to age 70 years when claimant says she intended to retire; Held – settlement approved in the sum of $172,000; insurer entitled to credit for statutory benefits paid; issued pursuant to section 6.23.

Decision date: 3 June 2024 | Member: Elyse White

QBE Insurance (Australia) Limited v Kerlin [2024] NSWPIC 294

Motor Accident Injuries Act 2017; settlement approval; section 6.23; dental injuries; time off for treatment; future economic loss; assumption as to most likely future circumstances; consideration of medical material; Held – settlement approval; past economic loss; future economic loss.

Decision date: 3 June 2024 | Member: Hugh Macken

BWU v AAI Limited t/as GIO [2024] NSWPIC 297

Motor Accidents Injuries Act 2017; assessment of damages; no issue as to liability; claim for past and future economic loss; no claim for non-economic loss, however, noted that no Commission medical certificate as to the primary physical injury; claimant was aged 19 at the time of the accident; claimant suffering migraines and a psychological injury caused by the accident which has significantly impacted her earning capacity in the past and into the future; complex medical history; future economic loss claim made on basis of claimant’s stated intention to become a psychologist; Held –the claimant is unlikely to reach such goal but for the accident; future economic loss awarded on a buffer basis; total damages awarded $472,416 plus costs.

Decision date: 5 June 2024 | Member: Elizabeth Medland

Allianz Australia Insurance Limited v Tang [2024] NSWPIC 298

Motor Accidents Injuries Act 2017; compensation to relatives claim; approval of settlement under section 6.23; claimant self-represented; mother sustained catastrophic injury as a result of the motor vehicle accident and died; liability admitted by insurer; past and future damages for financial dependency and domestic services awarded; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 6 June 2024 | Member: Terence Stern OAM

Workers Compensation non-Presidential Member Decisions

Alleman v Gunnedah Shire Council & Ors [2024] NSWPIC 70

Application for compensation in respect of death of worker; deceased worker had a pre-existing bipolar affective disorder and comorbid alcohol use disorder; excessive drinking at a work conference; subsequent stressful events in workplace; Federal Broom Co Pty Ltd v Semlitch, AV v AW, and BGV v Waverley Council referred to; Held – applicant failed to discharge onus of demonstrating on the balance of probabilities that employment was the main contributing factor to an aggravation of the deceased worker’s disease; award for the first respondent employer.

Decision date: 20 February 2024 | Member: Rachel Homan

BTY v Michael Hill Jeweller (Australia) Pty Ltd [2024] NSWPIC 126

Workers Compensation Act 1987; claim for weekly benefits and medical expenses in respect of psychological injury; respondent relied on a defence pursuant to section 11A; applicant was involved in a verbal and physical altercation with a colleague at the back of the store; CCTV footage of the altercation; applicant was issued with a first and final warning after an investigation; consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd; Mason v Demasi, Hamad v Q Catering Limited, Irwin v Director-General of Education, and Northern NSW Local Health Network v Heggie; Held – applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline; respondent’s action with respect to discipline was reasonable; award for the respondent.

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

Short v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 291

Procedural ruling; application for direction for production; sections 42 and 49 of the Personal Injury Commission Act 2020; rule 47 of the Personal Injury Commission Rules 2020; consideration of whether third party had failed to comply with a request made under an authority; whether documents had an apparent relevance; Waind v Hill and National Employers’ Mutual General Association Ltd applied; consideration of whether the documents would likely materially assist; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd and R v Saleam applied; Held – direction for production on psychologist granted; on exercise physiologist declined.

Decision date: 31 May 2024 | Member: Parnel McAdam

Huang v GMP Pharmaceuticals Pty Limited [2024] NSWPIC 292

The applicant sought a finding that she had suffered a central cord lesion as diagnosed by Dr Teychenne; that diagnosis was rejected; Held – the application was referred to the President for referral to a Medical Assessor in relation to a traumatic brain injury, a head injury, a neck injury and day central and peripheral nervous system injury.

Decision date: 31 May 2024 | Member: Lea Drake

Meyer v Gunnedah Shire Council [2024] NSWPIC 295

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained a consequential condition in her left shoulder as a result of the workplace injury to her right shoulder; whether the treatment expenses claimed for proposed left shoulder surgery are reasonably necessary; Held – the applicant sustained a consequential condition in her left shoulder; the left shoulder surgery proposed is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the applicant’s section 60 expenses in respect of the proposed left shoulder surgery and associated hospital fees, anaesthetist fees and rehabilitation costs.

Decision date: 3 June 2024 | Member: Sophie Jones

Jepson v Pipeline Scaffolding Pty Ltd [2024] NSWPIC 296

Death claim; determination of dependency and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors discussed and applied; Held – no other dependants; orders for payment of the death benefit and agreed interest.

Decision date: 3 June 2024 | Principal Member: Glenn Capel

Motor Accidents Medical Review Panel Decisions

Mahroei v QBE Insurance (Australia) Limited [2024] NSWPICMP 339

Motor Accident Injuries Act 2017; threshold dispute for motor accident in June 2019; motor accident modest rear end collision; prior motor accident in September 2017 caused psychiatric injury; claimant re-examined by Medical Assessors; findings made that prior accident caused an adjustment disorder; inconsistent histories as to employment prior to motor accident; analysis of pre accident psychiatric symptoms; Panel satisfied thatclaimant suffered pre-existing adjustment disorder; Panel not satisfied that motor accident caused or aggravated psychiatric condition; reasons provided for rejecting medical opinions that claimant suffered psychiatric injury caused by motor accident; Held – assessment confirmed; no psychiatric injury caused by motor accident.

Decision date: 24 May 2024 | Panel Members: Principal Member John Harris, Dr Melissa Barrett, and Dr John Baker | Injury module: Mental and Behavioural

Morgan v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 340

The claimant was the seat-belted driver of a Nissan Navara utility vehicle on 22 February 2022 north-bound on King Georges Road, Beverly Hills; the vehicle in front of him suddenly stopped; claimant was rear-ended by a truck in the rain; neither ambulance nor Police Officers attended; the claimant consulted his general practitioner, three weeks later, for treatment of neck pain, lumbar back pain and bilateral wrist pain; the insurer admitted liability for the claim on the basis that the claimant was not at-fault and his injuries were not minor (now threshold) injuries for the purposes of the Motor Accident Injuries Act 2017; medical disputes as to treatment and care; causation regarding proposed L5/S1 nucleoplasty; MRI scan of left shoulder and left shoulder subacromial bursa ultrasound-guided injection; request for nucleoplasty withdrawn; Review Panel certifies none of the proposed treatments relate to motor accident; Held – certificate of Medical Assessor Woo otherwise confirmed

Decision date: 27 May 2024 | Panel Members: Member Gary Victor Patterson, Dr Geoffrey Stubbs, and Dr Shane Moloney | Treatment Type: Surgery

Stevenson v QBE Insurance (Australia) Limited [2024] NSWPICMP 341

Motor Accidents Compensation Act 1999; the claimant was a paramedic travelling in the front passenger seat of an ambulance with sirens and lights activated; as the ambulance was traversing an intersection, it was struck on the driver’s side, by a 58-tonne truck and trailer; the ambulance was flipped onto the claimant’s passenger side; claimant had to be cut from the vehicle by other emergency service personnel; claimant sustained multiple injuries; whole person impairment dispute; Held – Review Panel satisfied that lumbar spine asymptomatic prior to motor accident; Review Panel finds significant restriction in range of motion of right shoulder; claimant accepted as genuine; Review Panel finds more than 10% whole person impairment; certificate of Medical Assessor McGrath revoked.

Decision date: 27 May 2024 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Nasari v AAI Limited t/as GIO [2024] NSWPICMP 342

Motor Accident Injuries Act 2017; threshold dispute for motor accident in September 2020; sideswipe collision; pre accident psychiatric symptoms; pre-accident clinical records; Panel reconstituted by substitution of Member; claimant previously examined by Medical Assessors (MA) before reconstitution; Panel determined that review could proceed without further examination; no objection by parties; probability of mistake in clinical records confirmed by GP; claimant functioning well prior to motor accident; deterioration in condition after motor accident; MA examination; finding that claimant suffered major depressive episode and specific phobia (driving); Held – assessment revoked; non-threshold psychiatric injury caused by motor accident.

Decision date: 27 May 2024 | Panel Members: Principal Member John Harris, Dr Gerald Chew, and Dr Glen Smith | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Kim [2024] NSWPICMP 343

Motor Accident Injuries Act 2017; insurer’s application for review of Medical Assessor (MA) Home’s decision about treatment; claimant injured in accident on 27 January 2022 and referred two disputes about cervical spine surgery and lumbar spine surgery at the same time; both disputes referred to MA Home who conducted one examination and issued one document certifying the cervical spine surgery was related to the injuries caused by the accident and was reasonable and necessary in the circumstances; however, he certified that the lumbar spine surgery was not; the insurer sought a review of the cervical spine surgery, but the claimant did not apply for review of the lumbar spine surgery or raise it in the submissions in reply; claimant later confirmed in answer to query from the Panel that the lumbar spine surgery was still in issue; issues of causation in relation to both surgeries due to previous accident and similar symptoms; Held – Panel could consider the lumbar spine surgery; cervical spine surgery, while related to the injuries caused by the accident, was not reasonable and necessary because no signs of radiculopathy and testing indicated the presence of carpal tunnel syndrome; lumbar spine surgery found to be related to the injuries caused by the accident and reasonable and necessary due to presence of several signs of radiculopathy on examination; Mc Kee v Allianz and Meuwissen v Boden considered and distinguished regarding scope of Review; Blacktown City Council v Hocking applied regarding use of photographs; Briggs v IAG considered regarding application of impairment guidelines to treatment disputes; AAI Limited v Phillips applied to test of causation for surgery; Clampett v WorkCover and Diab v NRMA applied to test of reasonableness and necessity of treatment.

Decision date: 27 May 2024 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Treatment Type: Surgery

AAI Limited t/as GIO v BSP [2024] NSWPICMP 344

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Robertson who determined that the claimant had a WPI of greater than 10%, that is, 15% WPI; review sought by insurer under section 7.26; claimant, a minor, suffered a psychological injury in a motor accident on 29 June 2019; consideration and application of Motor Accident Guidelines clauses 6.5 to 6.7 in respect of causation and clauses 6.201 to 6.228 in respect of mental and behavioural disorders; Held – the Panel revoked the certificate issued by MA Robertson dated 9 December 2022; the Panel certified that the claimant sustained a post-traumatic stress disorder caused by the motor accident on 24 June 2019 that gives rise to a WPI which is not greater than 10%, that is, 7%.

Decision date: 27 May 2024 | Panel Members: Member Anthony Scarcella, Dr Thomas Newlyn, and Dr Paul Friend | Injury module: Mental and Behavioural

AAI Limited t/as AAMI v Johns [2024] NSWPICMP 345

Motor Accident Injuries Act 2017; the claimant was driving her vehicle just after midnight; the collision was severe, causing the claimant’s vehicle to spin around and come to a halt some 100 metres away from the location of the accident; claimant says that she hit her head on her vehicle’s window during the course of the collision; claimant feels that she may have lost consciousness; ambulance attended and conveyed the claimant to hospital where she was assessed and discharged; claimant sustained numerous injuries; medical dispute as to whether injury to jaw and teeth is a threshold injury; Held – Review Panel finds injury to jaw and teeth not caused by motor accident; certificate of Medical Assessor Nichols revoked.

Decision date: 28 May 2024 | Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Paul Curtin | Injury module: Dental Injury

Allianz Australia Insurance Limited v Sarofim [2024] NSWPICMP 346

Motor Accident Injuries Act 2017; insurer sought to issue direction on NSW Police for production of records concerning the motor accident, such as statements obtained by persons involved; test of relevance; whether production is reasonably likely to add to the relevant evidence; Waind v Hill referred to; whether the subpoena has a legitimate forensic purpose; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council referred to; matter of common sense that the nature and speed of the impact may affect the extent of the injuries sustained; Held – leave granted to issue direction.

Decision date: 29 May 2024 | Principal Member: John Harris

CIC Allianz Insurance Limited v Savic [2024] NSWPICMP 347

Review of medical assessment; degree of permanent impairment; persistent depressive disorder with anxious distress; medical dispute; medical material to be considered; pre-accident psychological and physical injuries; consideration of medical material; persistent depressive disorder with anxious distress; psychiatric impairment rating; Held – Panel revokes the Certificate of Medical Assessor Alexey Sidorov.

Decision date: 29 May 2024 | Panel Members: Member Hugh Macken, Dr Wayne Mason, and Dr Melissa Barrett| Injury module: Mental and Behavioural

AAI Limited t/as GIO v Hawach [2024] NSWPICMP 348

Motor Accident Injuries Act 2017; accident in July 2019; T-bone impact; absence of contemporaneous complaint of right knee injury; no report in claim form of right knee injury; Bugat v Fox referred to; claimant re-examined; present findings of restriction of symmetrical movement in lumbar and cervical spine not assessable; assessment of shoulders; inconsistent movements in examination before Medical Assessor; loss of range of movement not explicable based on minor pathology; motor accident did not cause left shoulder injury; initial shoulder complaints probably referred neck pain; Panel did not accept any assessable impairment of shoulders; Held – medical assessment revoked; claimant assessed at 0% impairment.

Decision date: 30 May 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb

Wells v QBE Insurance (Australia) Limited [2024] NSWPICMP 349

Motor Accident Injuries Act 2017;the claimant suffered injury in a motor vehicle accident on 25 July 2021; a medical dispute arose as to whether or not the injuries which the claimant sustained were all threshold injures; the Medical Review Panel considered the claimant’s medical history, the clinical notes of treating medical practitioners, the radiological imaging, the history of the motor accident and the parties’ submissions; the shoulder injury was accepted as causally related to the subject motor vehicle accident, to the extent that it caused a soft tissue injury; Medical Assessor Herald’s determination of threshold injuries was affirmed; Held – the Review Panel certifies that the injuries referred for assessment and caused by the accident were threshold injuries.

Decision date: 30 May 2024 | Panel Members: Member Terence Stern OAM, Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Brewer [2024] NSWPICMP 350

Motor Accident Injuries Act 2017; claimant was a driver in a utility that collided with a car in an intersection; original assessment found the claimant sustained numerous injuries including to right thumb, shoulders and spine; claimant assessed with a whole person impairment (WPI) of 17%; Panel found a total 3% WPI on the basis of aggravated mild crepitus carpometacarpal joint and osteoarthritis of the right thumb; claimant had a long-standing and significant history of shoulder injuries, tears and prior surgery; all other remaining injuries including to the spine, hips, elbows, left thumb and wrists assessed by the Panel as being soft tissue injuries with 0% WPI; Panel affirmed the certificate of original Medical Assessor regarding treatment and care of a referral for an MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 as it relates to the injury caused by the motor accident and was reasonable and necessary in the circumstances; Held – original medical certificate set aside.

Decision date: 30 May 2024 | Panel Members: Member Ray Plibersek, Dr Tania Rogers, and Dr Geoff Stubbs | Injury module: Spine, Upper and Lower Limb; Treatment Type: Radiological Investigations

QBE Insurance (Australia) Limited v Elsaleh [2024] NSWPICMP 351

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Berry who determined that the claimant had a whole person impairment (WPI) of greater than 10%, that is, 14% WPI; review sought by insurer under section 7.26; claimant suffered neck, right shoulder and back injuries as well as a psychological injury in a motor accident on 7 February 2018; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines in respect of causation, clauses 6.19 to 6.22 in respect of permanent impairment, clauses 6.31 to 6.33 in respect of pre-existing impairment, clause 6.50 in respect of the assessment of the upper extremity and clauses 6.111 to 6.142 in respect of the assessment of the spine; Held – the Panel revoked the certificate issued by MA Berry dated 15 June 2023; the Panel certified that the claimant sustained soft tissue injuries to her cervical spine, right shoulder and lumbar spine caused by the motor accident on 7 February 2018 that gives rise to a WPI which is not greater than 10%, that is, 7%.

Decision date: 30 May 2024 | Panel Members: Member Anthony Scarcella, Dr Les Barnsley, and Dr Ian Cameron| Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Holland v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICMP 352

Appeal from assessment of whole person impairment (WPI) (binaural hearing impairment); whether Medical Assessor erred in failing to calculate WPI; whether his finding that hearing loss was not noise-induced was beyond his power; Held – Medical Assessment Certificate confirmed.

Decision date: 3 June 2024 | Panel Members: Member Richard J Perrignon, Dr Robert Payten, and Dr Henley Harrison | Body system: Hearing

Murray v Sydney Trains [2024] NSWPICMP 353

Whether Medical Assessor’s (MA) ratings of the appellant’s impairment in self-care and personal hygiene and in concentration, persistence and pace were correct based on the evidence; Held –MA’s ratings incorrect based on the history she obtained; Medical Assessment Certificate (MAC) consequently contained a demonstrable error; MAC revoked.

Decision date: 3 June 2024 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Hutton v Auto & General Holdings Pty Ltd [2024] NSWPICMP 354

Whether Medical Assessor’s (MA) ratings of appellant’s impairment in self-care and personal hygiene and in social and recreational activities accorded with the evidence; whether MA took into account irrelevant consideration when rating the appellant’s impairment in social and recreational activities; Held – MA’s rating of appellant’s impairment in self-care and personal hygiene accorded with the evidence and was correct; MA took into account irrelevant considerations when rating appellant’s impairment in social and recreational activities; as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error, but after Appeal Panel corrected that error, same result achieved; MAC upheld.

Decision date: 3 June 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Regency Realty Pty Limited v Arzoumani [2024] NSWPICMP 355

Workplace Injury Management and Workers Compensation Act 1998; assessment of threshold dispute, based on reports of two years; Medical Assessor assessed left wrist in respect of which there had never been a claim; Skates v Hills Industries Ltd, Secretary, New South Wales Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd referred to; Held – Medical Assessment Certificate revoked.

Decision date: 3 June 2024 | Panel Members: Member Catherine McDonald, Dr David Crocker, and Dr Gregory McGroder | Body system: Right Upper Extremity and Left Lower Extremity

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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