Legal Bulletin No. 167
This bulletin was issued on 28 June 2024
Issued 28 June 2024
Welcome to the one hundred and sixty seventh 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
ComfortDelGro Corporation Australia Pty Ltd v Elmi-Anvari [2024] NSWPICPD 34
Workers compensation; section 119 of the Workplace Injury Management and Workers Compensation Act 1998 considered; definition of “medical practitioner” considered, is a psychologist a medical practitioner as defined; Held – leave to appeal granted; appeal dismissed; Certificate of Determination dated 15 May 2024 confirmed; matter remitted to the same Member.
Decision date: 17 June 2024 | Before: President Judge Phillips
Bell v The Mining Pty Ltd [2024] NSWPICPD 35
Workers compensation; section 352(3) of Workplace Injury Management and Workers Compensation Act 1998 Act; satisfaction of the monetary threshold; Grimson v Integral Energy [2003] NSWWCCPD 29; section 352(3A) of the 1998 Act; leave to appeal an interlocutory decision; sections 65 and 65A of the Workers Compensation Act 1987 and section 322 of the 1998 Act; aggregation of permanent impairment in respect of psychological and physical injury; Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288; Galluzzo v Little [2013] NSWCA 116; Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56; statutory construction; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Tannous [2012] NSWCCA 243; Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; 75 NSWLR 482; Held – leave granted; Certificate of Determination dated 21 June 2023 confirmed.
Decision date: 17 June 2024 | Before: Deputy President Michael Snell
Scalabrini Village Limited v Sanders [2024] NSWPICPD 36
Workers compensation; application of the principles of Anshun estoppel; whether claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 is estopped by failure to plead the claim in earlier proceedings; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, Geary v UPS Pty Ltd [2021] 2 NSWPICPD 47, Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 applied; deemed date of injury for a disease pursuant to ss 4(b), 15 and 16 of the Workers Compensation Act 1987; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 and Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 considered; Held – Certificate of Determination dated 12 July 2023 confirmed.
Decision date: 19 June 2024 | Before: President Judge Phillips
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; application by uninsured employer to set aside or reduce amount sought by Workers Compensation Nominal Insurer (icare) by notice issued pursuant to section 145(1); icare accepted liability for psychological injury to the second respondent, as a result of interactions with her manager on 16 April 2023; applicant disputed that the second respondent had sustained injury; that employment was a substantial contributing factor to injury, and maintained that injury was caused by its reasonable action with respect to performance appraisal and/or discipline; second respondent had pre-existing psychological condition; Hamad v Q Catering Limited, State Transit Authority of New South Wales v Chemler, Attorney-General’s Department v K, Strinic v Singh, Chanaa v Zarour, Boral Recycling Pty Ltd v Figueira, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd, Secretary, Department of Education v Dawking, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Dunn v Department of Education & Training, Kushwaha v Queanbeyan City Council, and George Weston Foods Ltd v Bogdanoski considered; Held – the second respondent sustained psychological injury arising out of or in the course of her employment on 16 April 2023; employment was a substantial contributing factor to injury; the injury was not wholly or predominantly caused by reasonable action by the applicant with respect to performance appraisal and/or discipline; the applicant is liable to reimburse the first respondent the amount of $20,742.91, pursuant to section 145(4).
Decision date: 17 May 2024 | Senior Member: Kerry Haddock
Moon v Secretary, Department of Education [2024] NSWPIC 306
Workers Compensation Act 1987; applicant failed to establish that employment was the main contributing factor to the aggravation, acceleration, etc of her psychological injury; discussed AV-AW; Hammond Care v Calka; Hancock v East Coast Timber Products; Paric v John Holland Constructions; unable to accept the applicant’s evidence as to the effect of the events in the course of employment had on her psyche; Held – award for respondent with respect of the allegation of injury on 22 July 2022 (deemed).
Decision date: 13 June 2024 | Member: Diana Benk
Khoury v Roosters Traffic Control Pty Ltd [2024] NSWPIC 307
Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66; whether the applicant sustained a consequential condition at his lumbar spine as a result of the accepted workplace injuries; degree of permanent impairment resulting from injury; Held – the applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine on 13 July 2016; the matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment.
Decision date: 13 June 2024 | Member: Sophie Jones
Acma v Sesame Gourmet Pty Ltd [2024] NSWPIC 308
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act);whether the applicant is a “worker” within the meaning of section 4 of the 1998 Act; injury not in dispute; applicant a director of the respondent; Teen Ranch Pty Ltd v Brown, Riverwood Legion & Community Club Ltd v Morse and Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson considered and distinguished; Stephan v Pacesetter Cleaning Services Pty Ltd & Anor considered and applied; Held – the applicant is a worker within the meaning of section 4 of the 1998 Act; the applicant suffered injuries to the lumbar spine and the right hip arising out of or in the course of her employment with the respondent on 10 March 2022 within the meaning of sections 4 and 9A of the 1987 Act; the matter is remitted to the President for referral to a Medical Assessor under section 321 of the 1998 Act for the assessment of the applicant’s whole person impairment; following the issue of the Medical Assessment Certificate, the matter will be relisted for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses.
Decision date: 13 June 2024 | Member: Anthony Scarcella
Sheck-Townsend v Downer EDI Ltd [2024] NSWPIC 310
Workers Compensation Act 1987; claim for weekly benefits and medical expenses for psychological injury; respondent did not dispute injury but relied on defence pursuant to section 11A; discipline and/or transfer; Hamad v Q Catering Limited, Ponnan v George Weston Foods, Kooragang Cement Pty Ltd, and Fisher v Nonconformist Pty Ltd considered; Held – applicant’s injury not wholly or predominantly caused by respondent’s action; respondent failed to establish section 11A defence; applicant has no work capacity; award for applicant of weekly benefits and section 60 expenses.
Decision date: 14 June 2024 | Senior Member: Kerry Haddock
Enright v Secretary, Department of Education [2024] NSWPIC 311
Workers Compensation Act 1987;claim for weekly payments and section 60 expenses by Department Administration Officer for psychological injury; whether section 11A defence established; Held – onus on respondent to establish that injury wholly or predominantly caused by reasonable actions of employer not met, expert opinion did not support employer; Hamad v Q Catering considered and applied; actions not reasonable as worker had been bullied and harassed by her superior; Department of Education and Training v Sinclair and Northern NSW Local Health Network v Heggie considered; award for applicant.
Decision date: 14 June 2024 | Member: John Wynyard
Bath v Secretary, Department of Education [2024] NSWPIC 312
Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” disputed pursuant to sections 4(a) and 4(b)(i); the respondent raises a defence under section 11A in respect to discipline and dismissal; consideration of the Public Health Order in relation to Covid-19; findings made pursuant to section 4(b)(i) injury established by the applicant, and section 11A defence not established by the respondent; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied; pursuant to section 4(b)(i) the applicant sustained a psychological injury with her employment with the respondent being the main contributing factor to the contraction of the disease in the period of 27 August 2021 to 8 November 2021; Held – the respondent is to pay the applicant weekly benefits compensation as follows: from 9 November 2021 to 7 February 2022 at the rate of $631.85 per week pursuant to section 36(1), from 8 February 2022 to 31 July 2022 at the rate of $532.09 per week pursuant to section 37(1), and from 1 August 2022 to 7 May 2024 at the rate of $432.09 per week pursuant to section 37(3); the respondent is to have credit for payments made in the above periods, with any sick leave being re-credited; pursuant to section 60 the respondent is to pay the applicant’s reasonably necessary treatment expenses upon production of accounts, receipts and/or Medicare Notice of Charge.
Decision date: 14 June 2024 | Principal Member: Josephine Bamber
Boccola v Commonwealth Steel Company Pty Ltd t/as Moly-Cop & Anor [2024] NSWPIC 314
Workers Compensation Act 1987; application for lump sum compensation and binaural digital hearing aids for industrial deafness injury; identification of the last noisy employer; Blayney Shire Council v Lobley & Anor; Held – the first respondent was the last noisy employer for the purposes of section 17(1); first respondent to pay the costs of supply and fitting hearing aids; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.
Decision date: 17 June 2024 | Member: Rachel Homan
Jones v JLJ Training Services Pty Ltd [2024] NSWPIC 315
The applicant sought a referral to a Medical Assessor in relation to whole person impairment; there was an objection in relation to late notice of claim and notice of injury; the explanation for delay was accepted; Held – injury was determined to have occurred; the application was referred for assessment of whole person impairment in relation to the applicant’s neck and scarring.
Decision date: 17 June 2024 | Member: Lea Drake
Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 33 and 37, and a general order for medical and related expenses pursuant to section 60; accepted back injury and psychological consequential condition; whether applicant had no work capacity during the relevant period; Held – applicant had no work capacity during the relevant period; respondent to pay weekly compensation pursuant to sections 33 and 37; respondent to pay the applicant’s expenses in accordance with section 60; parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts; the Certificate of Determination and statement of reasons to be de-identified.
Decision date: 18 June 2024 | Member: Karen Garner
Drascovici v Concrete Recyclers (NSW) Ltd [2024] NSWPIC 317
Workers Compensation Act 1987; claim for weekly compensation during second entitlement period by applicant with accepted psychological injury; dispute as to whether he was fit for a “real job “in the labour market; Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – acceptance of near unanimous medical evidence that the applicant could perform part-time work; determination that part-time work of product assembler or packer was “suitable employment” in accordance with section 32A; award for worker for weekly compensation.
Decision date: 18 June 2024 | Member: Paul Sweeney
Bergicourt v Commonwealth Bank of Australia [2024] NSWPIC 318
Workers Compensation Act 1987; accepted injury to the lumbar spine; dispute as to whether orthotics reasonably necessary treatment due to accepted back injury; Held – that the provision of orthotics is reasonably necessary treatment within the meaning of section 60 as a result of the accepted injury to the applicant’s lumbar spine; the respondent is to pay for the costs of and ancillary to the provision of orthotics as recommended by Ms Jessica Grimson, podiatrist.
Decision date: 18 June 2024 | Member: John Turner
Koen v Secretary Safework NSW & Ors [2024] NSWPIC 319
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the 1987 Act; entitlement to interest under section 109 of the 1998 Act; how the amounts are awarded to the dependants to be paid in accordance with sections 85 and 85A of the 1987 Act; consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration of interest entitlement; Pheeney v Doolan (No 2), Mudgee Explorer Tours Pty Ltd v Clarke, Hu v Rongfar Property Service Pty Ltd, Youseph v Homebush Unit Trust t/as Primo Smallgoods, Kaur v Thales Underwater Systems Pty Ltd considered; Held – no other persons but the applicant, the second respondent and the third respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties is approved; interest under section 109 of the 1998 Act is awarded at the rate of 6.35% per annum from the date when dependency was fully particularised to the first respondent; awards entered in favour of the applicant, the second respondent, and the third respondent accordingly; the monies payable to the second and third respondents are to be paid in trust for their benefit to NSW Police Legacy Limited; award also entered with the agreement of the parties in relation to the worker’s funeral expenses pursuant to section 26 of the 1987 Act; notation made with the agreement of the parties in relation to the weekly payments payable to the second respondent and the third respondent pursuant to section 25(1)(b) of the 1987 Act.
Decision date: 18 June 2024 | Member: Gaius Whiffin
Workers Compensation Act 1987;claim for weekly compensation; dispute as to causation, capacity and section 38 jurisdiction; Held – injury sustained pursuant to section 4(b)(ii); no capacity for work; Commission has section 38 jurisdiction in this case.
Decision date: 18 June 2024 | Member: Michael Wright
Baker v Transport for NSW & Anor [2024] NSWPIC 321
Workers Compensation Act 1987 (the 1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the 1987 Act; entitlement to interest under sections 109 of the 1998 Act; how the amounts are awarded to the dependants to be paid in accordance with sections 85 and 85A of the 1987 Act; consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration of interest entitlement; Pheeney v Doolan (No 2), Mudgee Explorer Tours Pty Ltd v Clarke, Hu v Rongfar Property Service Pty Ltd, Youseph v Homebush Unit Trust t/as Primo Smallgoods considered; consideration of sections 85 and 85A of the 1987 Act; Held – no other persons but the applicant and the second respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties is approved; interest under section 109 of the 1998 Act is awarded pursuant to an amount agreed between the parties; awards entered in favour of the applicant and the second respondent accordingly; the monies payable are to be paid directly to them pursuant to section 85A of the 1987 Act; notation made with the agreement of the parties in relation to the weekly payments payable to the applicant and the second respondent pursuant to section 25(1)(b) of the 1987 Act.
Decision date: 18 June 2024 | Member: Gaius Whiffin
Taumoepeau v Westpac Banking Corporation [2024] NSWPIC 322
Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether the applicant sustained a left knee injury as a result of her employment; whether the proposed left knee arthroscopy surgery is reasonably necessary; Held – the applicant sustained a left knee injury on 26 April 2023 in the course of her employment; the left knee arthroscopic surgery proposed by Dr Thomas is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the medical hospital and related expenses of the left knee arthroscopic surgery at the gazetted rates.
Decision date: 19 June 2024 | Member: Fiona Seaton
Motor Accidents Medical Review Panel Decisions
Zalghout v AAI Limited t/as GIO [2024] NSWPICMP 374
Motor Accidents Compensation Act 1999; claimant was involved in two low-impact motor vehicle accidents within ten days; claimant’s car was either stationary or travelling slowly and was hit from behind by other car; Held – original medical certificate set aside; original assessment found the claimant sustained numerous soft tissue injuries including to left shoulder which was assessed at a whole person impairment (WPI) of 1%; Panel found a total 6% WPI; left shoulder at 1% WPI; lumbar spine injury was an aggravation of pre-existing facet arthralgia resulting in a finding of DRE category II at 5% WPI; all of the other injuries showed a normal range of motion and no assessable impairment; claimant raised the issue of scarring after the Panel had completed its re-examination of the claimant; the original Medical Assessor did not consider the effect of scarring; no submission about scarring was made by either party until after the re-examination was completed and the Panel was deliberating; Panel referred to the Court of Appeal decision in Mandoukos v Allianz Australia Insurance Ltd and the meaning of a ‘medical dispute’; Panel determined that the scarring to the lumbar spine caused by or resulting from a L5/S1 microdiscectomy was not caused by the motor accident; Panel confirmed the certificate of original medical assessor regarding treatment and care of a L5/S1 microdiscectomy which was not reasonable and necessary in the circumstances and does not relate to the injury caused by the motor accident.
Decision date: 11 June 2024 | Panel Members: Member Ray Plibersek, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb; Treatment Type: Surgery
QBE Insurance (Australia) Limited v Ozucargil [2024] NSWPICMP 375
Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of a threshold injury dispute; Medical Assessor (MA) McGrath had found the claimant had no cervical or lumbar radiculopathy, that injuries to the lumbar spine, thoracic spine, right and left shoulder were all soft tissue injuries; he also found the claimant had a joint capsule injury at C5/6 which involved the tearing of ligaments and cartilage; this finding was made without radiological findings but on the basis of a clinical finding of tenderness over C5/6; insurer challenged the MA’s causation findings and reasons; Held – the Panel was satisfied the accident could have caused injuries to the claimant’s neck, back and shoulders; the Panel considered there was no contemporaneous medical record of any injury until the claimant saw Dr Lim 12 weeks after the accident but the claimant did complete an online claim form, about a week after the accident; the Panel was satisfied that the claimant was injured in the accident; the Panel found no evidence of cervical, thoracic or lumbar radiculopathy in any record after the accident or when examined; the Panel found no evidence of the complete or partial rupture of any soft tissues in the claimant’s thoracic or lumbar spine or his shoulders; the Panel was not satisfied the claimant sustained a cervical spine joint capsule injury on the basis there was no radiology to support it; no evidence of laxity in ligaments; no spasms or referral of symptoms into the upper limbs; all injuries were threshold injuries; Medical Assessment Certificate revoked.
Decision date: 12 June 2024 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Clive Kenna | Injury module: Spine and Upper Limb
Stephens v AAI Limited t/as GIO [2024] NSWPICMP 376
Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Home; the claimant suffered injury in a motor bike accident on 3 March 2019; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, right shoulder, left shoulder and scarring; MA Home assessed 0% WPI for cervical spine, 8% WPI for right shoulder, 1% WPI for left shoulder and 0% WPI for scarring; Held – notwithstanding lack of contemporaneous complaint causation of injury to cervical spine established; Norrington v QBE Insurance (Australia) Ltd; Briggs v IAG Limited trading as NRMA Insurance; aggravation of degenerative changes of right shoulder including rotator cuff tear and need for surgery; no injury to the left shoulder where no complaint, no treatment or no investigation; scarring to right knee caused by abrasions; assessed as DRE cervicothoracic category 1 or 0% WPI; where inconsistency in range of movement of right shoulder demonstrated on examination right shoulder assessed by analogy using the acromioclavicular joint at 3% WPI; right knee scarring assessed under Table for the Evaluation of Minor Skin Impairment as 0% WPI; Medical Assessment Certificate of MA Home revoked; injures caused by accident gave rise to 3% WPI.
Decision date: 13 June 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, Upper Limb, and Minor Skin
QBE Insurance (Australia) Limited v McKenzie [2024] NSWPICMP 377
Motor Accident Injuries Act 2017; accident in October 2018; claimant front-seat passenger; insured vehicle crossed in path of claimant’s vehicle; onset of urological symptoms commenced two weeks after the accident; claimant’s history of immediate onset inconsistent with contemporaneous records and claim form; no evidence of spinal injury causing bladder symptoms; no report of injury to the bladder in contemporaneous records; mechanism of injury does not support the basis for bladder injury; claimant predisposed to anxiety; severity of the motor accident and the associated physical injuries likely explanation for development of urological symptoms; clause 6.2532 of the Guidelines requires objective evidence of injury to the bladder to the urethra; objective testing did not establish bladder or urethra injury; flow studies and/or responses to BOTOX therapy not objective evidence of injury; Held – medical assessment revoked; claimant not assessed as does not satisfy clause 6.25.
Decision date: 13 June 2024 | Panel Members: Principal Member John Harris, Dr Louis Izzo, and Dr John Schmidt | Injury module: Urinary and Reproductive Systems
Workers Compensation Medical Appeal Panel Decisions
Secretary, Department of Communities & Justice v Abdilla-Gascoyne [2024] NSWPICMP 378
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the Psychiatric Impairment Rating Scale categories: social and recreational activities, travel and concentration, persistence and pace; Held – Appeal Panel satisfied as to error and required a re-examination; Medical Assessment Certificate revoked.
Decision date: 14 June 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Hugo v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 379
Whether Medical Assessor (MA) had regard to an irrelevant consideration when rating appellant’s impairment in social and recreational activities by having regard to appellant’s participation in archery; whether MA’s rating of appellant’s impairment in social and recreational activities involved error; whether MA considered paragraph 1.32 of the Guidelines; Held – MA made no error with respect to his rating of the appellant’s impairment in social and recreational activities; MA either failed to consider paragraph 1.32, or if he did consider it, failed to explain why it did not apply; either way that was an error on the part of the MA, but when Appeal Panel corrects that error, no difference in outcome; Medical Assessment Certificate upheld.
Decision date: 14 June 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Kurtovic v Zenox Painting Service Pty Ltd [2024] NSWPICMP 381
Assessment of the lumbar spine; worker suffered a spinal fracture when pushed to the ground; question as to extent of spinal fracture; consideration of clauses 4.12 and 4.30 of the Guidelines; no well-centred plain X-Ray available, in circumstances other imaging sufficient; lack of reasons in Medical Assessment Certificate (MAC); Appeal Panel Medical Assessors measured original scans to conclude compression of >50%, DRE category IV assessed; Held – MAC revoked.
Decision date: 17 June 2024 | Panel Members: Member Parnel McAdam, Dr Andrew Porteous, and Dr John Brian Stephenson | Body system: Lumbar Spine and Right Upper Extremity
Secretary, Department of Education v Bisschop [2024] NSWPICMP 382
Personal Injury Commission Act 2020; appeal against award of 17% for injury to the right foot and ankle; whether Medical Assessor (MA) obliged to explain his interpretation of medically complex guidelines; whether unsupported speculation by MA as to opinion in an unread expert report a demonstrable error; whether confusing reference to guidelines a demonstrable error; Held – MA mistakenly thought an expert report was not before him, and wrongly presumed its opinion; clear error, which did not affect the assessment in that issue as to maximum medical improvement; the details describing the manner in which the MA is required to address the imaging studies before him is presumed to have been complied with; Campbelltown City Council v Vegan, Lancaster v Foxtel Management Pty Ltd, Jones v The Registrar WCC, and section 32 considered and applied; Panel determined that MA miscalculated the lower extremity impairment regarding Table 17-31 and corrected findings; MA not clear as to guideline he applied for another impairment; MA measurements not challenged; findings on examination confirmed correct assessment; Medical Assessment Certificate revoked.
Decision date: 17 June 2024 | Panel Members: Member John Wynyard, Dr Gregory McGroder, and Dr John Brian Stephenson | Body system: Right Lower Extremity
Sexton v Northern NSW Helicopter Rescue Service t/as Westpac Rescue Helicopter [2024] NSWPICMP 383
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of a one-tenth deduction under section 323 as well as error in assessments under two of the Psychiatric Impairment Rating Scale categories of self-care and personal hygiene, and social and recreational activities; Held – Appeal Panel satisfied as to error and required a re-examination; Medical Assessment Certificate revoked.
Decision date: 17 June 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Clinch v Secretary, Department of Education [2024] NSWPICMP 384
Whether Medical Assessor (MA) obtained accurate history; whether the history MA obtained was in accordance with the evidence; whether the MA’s ratings of the appellant’s impairment in all Psychiatric Impairment Rating Scale (PIRS) categories other than travel correct; Held – MA obtained an accurate history sufficient to enable him to assess the degree of the appellant’s permanent impairment from injury; MA’s ratings in PIRS were correct; Medical Assessment Certificate upheld.
Decision date: 18 June 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
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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