Legal Bulletin No. 169

Issued 12 July 2024

Welcome to the one hundred and sixty ninth 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

Rock Logistics Pty Ltd v Chelin [2024] NSWPICPD 39

Principles applicable to disturbing findings of fact on appeal; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) applied; section 11A(1) of the Workers Compensation Act 1987; whether the respondent’s psychological injury was wholly or predominantly caused by the appellant’s actions with respect to discipline or the provision of employment benefits; Heggie; Department of Education and Training v Sinclair [2005] NSWCA 402 applied; Held – Certificate of Determination dated 25 May 2023 confirmed.

Decision date: 27 June 2024 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Najjar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 328

Motor Accident Injuries Act 2017; application by the claimant for payment of statutory benefits from the time of lodgement of the claim form when claim is lodged more than three months after the accident; claimant involved in an accident on 7 October 2023 with an unidentified vehicle; claimant made an application for personal injury benefits, including statutory benefits, on 27 November 2023, being a period of just over seven weeks from the accident; claimant did not provide particulars of enquiry and search until 1 March 2024 together with an explanation for his delay which was immediately accepted by the insurer as being a full and satisfactory explanation; claimant sought payment of statutory benefits from 27 November 2023; sections 2.30, 6.12 and 6.13 considered in addition to regulation 8A of the Motor Accident Injuries Regulations 2017 as well as part 4 of the Motor Accident Guidelines dealing with claims against the Nominal Defendant and the time for making a statutory benefits claim; Held – a claim for payment of statutory benefits against the Nominal Defendant requires a claim form to be served together with details of inquiry and search and until both requirements have been met, no claim has been made and accordingly the claimant did not make a valid claim until 1 March 2024.

Decision date: 20 June 2024 | Member: Alexander Bolton

Yin v AAI Limited t/as GIO [2024] NSWPIC 339

Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents Compensation Act 1999 (MAC Act); settlement approval; section 6.23 of the MAI Act; assessment under chapter 5 of the MAC Act; determination of damages to include domestic assistance and treatment; Chang v McTye applied; past economic loss; future economic loss; Held – settlement not approved.

Decision date: 24 June 2024 | Member: Hugh Macken

Insurance Australia Limited t/as NRMA Insurance v Allianz Australia Insurance Limited [2024] NSWPIC 342

Motor Accident Injuries Act 2017; miscellaneous claims matter; relevant insurer; acceptance of claim; jurisdiction of Personal Injury Commission (the Commission); applicant insurer sought a determination by the Commission that the relevant insurer under section 3.2 is the respondent insurer; where applicant insurer has accepted claim; whether the Commission has power to determine the dispute; Held – applicant insurer had accepted claim; the power vested in the Commission by section 3.3(2) only extends to determining which insurer is the relevant insurer with respect to claim for statutory benefits; where claim accepted by applicant insurer there was no dispute; the Commission has no jurisdiction to determine relevant insurer; no order as to costs.

Decision date: 24 June 2024 | Member: Susan McTegg

Allianz Australia Insurance Limited v Mason [2024] NSWPIC 348

Motor Accident Injuries Act 2017; section 6.23; settlement approval in the sum of $112,500; 79-year-old female; pedestrian; contributory negligence 50%; entitlement to non-economic loss only; injuries include subarachnoid haemorrhage, subdural hematoma, pelvis fractures, left humeral fracture; left clavicle fracture, and nasal fracture; Held – proposed settlement is just, fair, and reasonable; settlement approved.

Decision date: 1 July 2024 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Aistrope (née Hull) v RSL Care RDNS Ltd [2024] NSWPIC 247

Accepted injury to lumbar spine; dispute regarding alleged coccyx injury; lack of contemporaneous evidence; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga, and Paric v John Holland (Constructions) Pty Ltd discussed and applied; Held – the applicant has not discharged the onus of establishing an injury to coccyx; determination made; award for the respondent with respect of the allegation of injury to the coccyx on 16 October 2020.

Decision date: 13 May 2024 | Member: Diana Benk

Worrall v State of New South Wales (NSW Police Force) [2024] NSWPIC 248

Workers Compensation Act 1987; claim for compensation pursuant to section 66 for additional consequential injuries to the left hip and lumbar spine; the applicant had already been compensated for 8% whole person impairment of the left lower extremity (left ankle) in 2021; applicant is an exempt worker; consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; Kumar v Royal Comfort Bedding Pty Ltd, McCarthy v Patrick Stevedores No 1 Pty Limited, Grant v Dateline Imports Pty Ltd, Hancock v East Coast Timber Products Pty Ltd, Kooragang Cement Ltd v Bates, Guthrie v Spence, Strinic v Singh, Purkess v Crittenden, Mason v Demasi, Arquero v Shannons Anti Corrosion Engineers Pty Ltd, Moon v Conmah Pty Ltd, Abou-Haidar v Consolidated Wire Pty Ltd, Welsh v Dandan Management Services Pty Ltd; and Voudouris v TDV Constructions Pty Ltd; Held – the applicant has developed a consequential injury to his left hip and his lumbar spine arising out of an injury he sustained to his left ankle on 9 June 2017.

Decision date: 14 May 2024 | Member: Anne Gracie

McLeod v Precast Systems Pty Ltd [2024] NSWPIC 343

Workers Compensation Act 1987; claim for proposed lumbar fusion surgery; whether surgery was reasonably necessary as a result of accepted injury; whether expert opinions in a fair climate; Paric v John Holland (Constructions) Pty Ltd; Held – the lumbar spine surgery proposed is reasonably necessary treatment as a result of injury, the respondent is to pay for the costs of the surgery pursuant to section 60.

Decision date: 26 June 2024 | Member: Fiona Seaton

Williams v Colin Joss & Co Pty Ltd [2024] NSWPIC 344

Workers Compensation Act 1987; the applicant claims weekly compensation and medical and related treatment expenses resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to discipline and/or dismissal; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal; the applicant has had no current capacity for work between 12 October 2021 and 12 October 2022 and has entitlement to weekly compensation payable under sections 36 and s 37; as the applicant requires medical and related treatment for her injury, the applicant has an entitlement to compensation payable under section 60.

Decision date: 28 June 2024 | Member: Jacqueline Snell

Cayir v Woolworths Group Ltd [2024] NSWPIC 345

Workers Compensation Act 1987; re-determination after successful appeal; relevance of findings in earlier proceedings against another employer; comity; Secretary, Department of Education v Dawking; section 4(b)(i) injury; section 15 applied; Crisp v Chapman, Kelly v Glenroc Pastoral Co, Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Thiess Watkins White (Constructions) Pty Ltd, and Statecover Mutual v Cameron; Held – remitted to the President for referral to a Medical Assessor.

Decision date: 28 June 2024 | Member: Catherine McDonald

Ali v IN2F Services Pty Ltd [2024] NSWPIC 346

Workers Compensation Act 1987; claim for permanent impairment compensation; section 66; consequential condition to the lumbar spine; accepted injury to the right knee; Bouchmouni v Bakhos Matta t/as Western Red Services and Nguyen v Cosmopolitan Homes considered; Held – the applicant suffered a consequential condition to the lumbar spine as a result of an accepted right knee injury; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.

Decision date: 28 June 2024 | Member: Kathryn Camp

On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 349

Workers Compensation Act 1987 (WC Act); Interpretation Act 1987; Personal Injury Commission Act 2020; Personal Injury Rules 2021; claim for lump sum death benefit pursuant to section 25 and interest pursuant to section 109 of the WC Act; claims by alleged de facto partner and parents of deceased worker; younger brother of deceased worker made no claim of dependency; application by third respondent for de-identification or redaction of decision, opposed by first and second respondents; consideration of section 21C of the Interpretation Act 1987; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick; Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Foods Pty Ltd; Held – third respondent was de facto partner of deceased worker at date of death; first, second, and third respondents were partly dependent on deceased worker; no other persons were dependent on deceased worker; lump sum death benefit apportioned as 15% to first respondent; 15% to second respondent; 70% to third respondent; interest ordered on lump sums from date each claim duly made at 6.35% per annum; non-publication order made in respect of third respondent; liberty to apply in respect of funeral expenses, calculation of interest.

Decision date: 1 July 2024 | Senior Member: Kerry Haddock

Sharma v Woolworths Group Ltd [2024] NSWPIC 350

Workplace Injury Management and Workers Compensation Act 1998; the applicant sustained various work injuries deemed to have occurred in 2016 including right shoulder injury which required surgery and sustained consequential conditions to left wrist and elbow; dispute related to whether the neck condition was consequential to the accepted right shoulder injury; applicant’s medical evidence established bio-mechanical reasons why right shoulder condition would place abnormal stress on neck; consequential condition established; respondent objected to left wrist and elbow being referred to Medical Assessor; disputed that these body parts were part of the claim for permanent impairment despite respondent’s acceptance that there were consequential conditions; applicant asserted that Member bound by decision of Supreme Court in Klement v Bull N’ Bush Nurseries Pty Ltd (Klement) that all injuries suffered should be assessed and/or that a 0% whole person impairment assessment should be assessed as part of medical dispute; discussion of binding precedent; Favelle Mort Pty Ltd v Murray referred to; finding of Supreme Court in judicial review proceedings not binding but should be followed unless convinced it is erroneous; Klement not followed on aspect that all injuries are referred for medical assessment; statement inconsistent with reasoning of Court of Appeal in Skates v Hills Industries Ltd; report making the claim did not refer to left wrist and elbow; sections 281 and 282 required particulars of all impairments; finding that left wrist and elbow were not part of claim and medical dispute; submission by applicant that 0% assessment relevant body parts could be implied is rejected; discussion of 0% assessment part of medical dispute; view expressed that Klement would be followed on that issue and assessment of 0% would be part of claim and medical dispute; Held – applicant entitled to have cervical spine referred for medical assessment; left wrist and elbow not referred.

Decision date: 1 July 2024 | Principal Member: John Harris

Weeks v Griffith City Council & Anor [2024] NSWPIC 351

Workers Compensation Act 1987; last noisy employer; no dispute that applicant suffered hearing loss; no dispute that first respondent was a noisy employer; first respondent asserted that second respondent was the last noisy employer pursuant to section 17; worker observed working on a job site with the second respondent; applicant and second respondent consistent in position that second respondent was not a noisy employer; Held – first respondent was last noisy employer; matter referred for assessment of whole person impairment and order for hearing aids made.

Decision date: 1 July 2024 | Member: Parnel McAdam

Ryan v Alto Pennant Hills Pty Ltd [2024] NSWPIC 352

Workers Compensation Act 1987; claim by worker for weekly payments for accepted psychological injury resulting from the implementation of the employer’s Covid -19 Policy which provided for the inoculation of all employees returning to work after lockdown; employer disputes entitlement to compensation on basis of dismissal and the provision of employment benefits as those terms are used in section 11A(1); Northern NSW Local Health Service v Heggie and Department of Education & Training v Sinclair considered and applied; Held – the predominant cause of the worker’s injury was the respondent’s actions in respect of dismissal and that those actions were reasonable; award for employer.

Decision date: 2 July 2024 | Member: Paul Sweeney

Martin v Healthshare NSW [2024] NSWPIC 353

Workers Compensation Act 1987; claim for weekly compensation in respect of a psychological injury; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal under section 11A(1); reasonableness of action; delay in disciplinary process; failure to put critical information to the applicant for comment; whether a pattern of behaviour was unreasonably taken into account; Held – the respondent failed to discharge its onus under section 11A(1); the applicant totally incapacitated as a result of injury; award in favour of the applicant for weekly compensation.

Decision date: 2 July 2024 | Member: Rachel Homan

Motor Accidents Medical Review Panel Decisions

Eid v AAI Limited t/as AAMI [2024] NSWPICMP 367

Motor Accident Injuries Act 2017; Personal Injury Commission Rules 2021; review of medical assessment for treatment and care; causation; Certificate under section 2.3; whether bilateral knee surgery is reasonable and necessary; path of reasoning; circumstances of accident; pre-existing medical conditions; injury arising out of the motor accident; diagnostic imaging; bilateral knee surgery; valgus osteoarthritis; secondary meniscal degeneration; Held – bilateral knee surgery does not relate to the injury caused by the motor accident; bilateral knee surgery is not reasonable and necessary in the circumstances.

Decision date: 6 June 2024 | Panel Members: Member Hugh Macken, Dr Geoffrey Stubbs, and Dr Margaret Gibson | Treatment Type: Surgery

El-Khodr v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 388

Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of a permanent impairment dispute; claimant had fractured wrist in 2020 when he was knocked off his motorbike; Medical Assessor (MA) Assem had determined 10% permanent impairment based on an upper extremity impairment (UEI) of 17%, 12% for loss of motion in the wrist, and 6% UEI for mild carpal instability; claimant lodged application for review on two bases, firstly the combined calculation of UEI was incorrect, and secondly because the Medical Assessor did not explain why there was a ‘mild’ and not moderate or severe instability; re-examination occurred via MS Teams as claimant accepted measurements made by MA; Panel considered at length the methodology for the assessment of upper limb impairment generally and wrist impairment noting that page 61 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition prevents the combination of range of motion impairment with a separate impairment for carpal instability; Held – permanent impairment assessed at 7% and Medical Assessment Certificate revoked (as it included the figure of 10%).

Decision date: 18 June 2024 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Les Barnsley | Injury module: Upper Limb

Ear v AAI Limited t/as GIO [2024] NSWPICMP 389

Review of medical assessment revoking prior certificate; whole person impairment; need for further examination; clarification of pre-accident history; relevant injuries and conditions; fractured/dislocation (right shoulder); direct impact and abrasion (right knee); Held – Medical Assessment Certificate revoked, and new Medical Assessment Certificate issued.

Decision date: 19 June 2024 | Panel Members: Member Hugh Macken, Dr Thomas Rosenthal, and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb

QBE Insurance (Australia) Limited v Ruzicska [2024] NSWPICMP 400

Motor Accident Injuries Act 2017; threshold dispute for motor accident in January 2021; T-bone collision; pre-accident psychiatric symptoms; examination by Medical Assessors; finding that claimant did not suffer aggravation of pre-existing psychological symptoms; AAI Ltd v Hoblos referred to; Jarvis v Allianz Australia Insurance Ltd applied; diagnosis of specific phobia not met; certain criteria required persistent avoidance over six months; claimant could otherwise drive in the local area; Held – the claimant did not sustain a psychological injury; threshold assessment revoked; no need to assess permanent impairment.

Decision date: 21 June 2024 | Panel Members: Principal Member John Harris, Dr Glen Smith, and Dr Michael Hong | Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v Davidson [2024] NSWPICMP 402

Motor Accident Injuries Act 2017; claimant involved in motor accident when he fell off his motorcycle when trying to avoid a collision with the insured vehicle; injury to left ankle; where the claimant suffered consequential injuries to the pelvis, right hip, right ankle, lower back, and neck when his left ankle gave way and he fell down a set of stairs; re-examination by Medical Review Panel; assessment of permanent impairment; Medical Review Panel found a higher assessment of permanent impairment (21%) than the original assessment (20%); Held – original assessment revoked and new certificate issued.

Decision date: 21 June 2024 | Panel Members: Member Maurice Castagnet, Dr David Gorman, and Dr Michael Couch | Injury module: Spine, Upper Limb, and Lower Limb

Wahab v Allianz Australia Insurance Limited [2024] NSWPICMP 405

Motor Accident Injuries Act 2017; claimant was a front seat passenger in a vehicle travelling on the Sturt Highway, Balranald, when a front tyre on the vehicle blew out causing the vehicle to lose control and roll over; original assessment found the claimant sustained total permanent impairment of 4%; the claimant’s injuries were assessed as face scarring and deformity (2%) and trigeminal nerve injury, left and right (2%); Held – original Medical Assessment Certificate set aside; facial scarring and deformity; total 8% permanent impairment for face disfigurement, scarring and deformity (2%); right trigeminal nerve injury (3%) and left trigeminal nerve injury (3%).

Decision date: 24 June 2024 | Panel Members: Member Ray Plibersek, Dr Michael McGlynn, and Dr Drew Dixon | Injury module: Facial Injury and Impairment

Iqbal v QBE Insurance (Australia) Limited [2024] NSWPICMP 406

Motor Accident Injuries Act 2017; claimant was involved in a motor accident on 19 November 2020 when his vehicle collided with a kangaroo; vehicle left the road and collided with rocks nearby; claimant sustained physical injuries and subsequently developed a psychiatric/psychological injury; dispute about whether the psychiatric/ psychological injury is a threshold injury; no pre-existing psychological condition; Medical Assessor at first instance found that there was no psychiatric/ psychological injury caused by the motor accident; Medical Review Panel re-examined the claimant and found that there was a psychiatric injury (persistent depressive disorder) caused by the motor accident; Held – original assessment revoked; finding that the claimant’s presentation fulfilled criteria for persistent depressive disorder which is a not a threshold injury.

Decision date: 24 June 2024 | Panel Members: Member Maurice Castagnet, Dr Michael Hong, and Dr Samson Roberts | Injury module: Mental and Behavioural

Solis v AAI Limited t/as AAMI [2024] NSWPICMP 409

Review of medical assessment; amended Certificate of Determination; pre-accident medical history; post-accident treatment; permanent impairment determinations; asymmetric loss of active range of motion; non-verifiable radicular complaints; assessment upper extremities; active range of motion; Held – revocation of Medical Assessment Certificate; new Medical Assessment Certificate issued.

Decision date: 25 June 2024 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Les Barnsley | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Lam [2024] NSWPICMP 410

Motor Accident Injuries Act 2017; medical assessment of whole person impairment assessed greater than 10%, that is, 14%; review sought by insurer under section 7.26; claimant allegedly suffered fractures to the right tibia and fibula, right knee, right lower limb, left wrist, lumbar spine and left elbow in a motor accident on 6 June 2019; 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; Held – Medical Assessment Certificate revoked; the claimant’s left elbow condition was not caused by the motor accident; the claimant sustained a fractured right tibia and a fractured right fibula, sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot, a disturbance to the right patellofemoral joint, a soft tissue injury to the left wrist, and a soft tissue injury to the lumbar spine caused by the motor accident on 6 June 2019 that give rise to a permanent impairment which is not greater than 10% (at 3%).

Decision date: 25 June 2024 | Panel Members: Member Anthony Scarcella, Dr Michael Couch, and Dr Ian Cameron | Injury module: Spine, Upper Limb, and Lower Limb

Tannous v QBE Insurance (Australia) Limited [2024] NSWPICMP 413

Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained psychological injuries in a motor accident; Medical Assessor (MA) Verma determined that the claimant suffered depression due to another medical condition (pain, in remission) caused by the motor accident which was a non-minor (now non-threshold) injury; review sought by the insurer under section 7.26; consideration and application of section 1.6 and the Motor Accident Guidelines; Held – Medical Assessment Certificate is revoked; the claimant suffered post-traumatic stress disorder caused by the motor accident and that such psychological condition is a non-threshold injury.

Decision date: 26 June 2024 | Panel Members: Member Anthony Scarcella, Dr John Baker, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Foley [2024] NSWPICMP 415

Motor Accident Injuries Act 2017; claimant injured in motor accident when vehicle was rear-ended by insured vehicle; issues in dispute were threshold injuries and permanent impairment; re-examination by the Medical Review Panel; Medical Review Panel found injury to neck, cervical spine C7 fracture, injury to lumbar spine, and disc protrusion were non-threshold injuries; where the Medical Review Panel found that the injury to right shoulder, right trapezial muscle strain, was secondary to his whiplash injury with post-traumatic stiffness; Nguyen v Motor Accident Authority of New South Wales & Anor; Review Panel found a higher assessment of permanent impairment (14%) than the original assessment (5%); Held – original assessment of 5% permanent impairment revoked and new Medical Assessment Certificate issued.

Decision date: 27 June 2024 | Panel Members: Member Maurice Castagnet, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Ingram v Veolia Recycling & Recovery Pty Ltd [2024] NSWPICMP 380

Medical Assessor allegedly erred with respect to their assessments under two categories of the Psychiatric Impairment Rating Scale, namely social functioning, and social and recreational activities; Held – error in the assessment of social functioning; no error regarding social and recreational activities; Medical Assessment Certificate revoked.

Decision date: 14 June 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Bustos v State of New South Wales (Concord Repatriation General Hospital) [2024] NSWPICMP 411

Workplace Compensation Act 1987; psychological injury with a deemed date of 7 July 2022; appeal against assessment of Medical Assessor (MA) with regard to the Psychiatric Impairment Rating Scale categories; the Medical Appeal Panel concluded that the MA had fallen into error in the assessment of those categories and had not provided sufficient reasons; the appellant was examined by panel doctors; Held – the appellant’s condition had significantly deteriorated and that the appellant required urgent medical intervention; the appellant had not reached maximum medical improvement and the whole person impairment was not fully ascertainable at the time.

Decision date: 25 June 2024 | Panel Members: Member Michael McGrowdie, Dr Douglas Andrews, and Dr Michael Hong| Body system: Psychological/Psychiatric

Mekhayl v Sunshade Shutters & Blinds Pty Ltd [2024] NSWPICMP 412

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; application of section 323; worker had history of substance use disorder and anxiety disorder; worker was being prescribed an antidepressant prior to work injury that was modified after injury; Matthew Hall Pty Ltd v Smart applied; whether Medical Assessor provided sufficient reasons; Held – no demonstrable error; worker suffered from previous conditions; section 323 appropriately applied; Medical Assessment Certificate confirmed.

Decision date: 25 June 2024 | Panel Members: Member Parnel McAdam, Dr Ash Takyar, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Cammarata v We Care NFP Pty Ltd [2024] NSWPICMP 414

Whether Medical Assessor’s (MA) ratings of the appellant’s self-care and personal hygiene, social functioning, and travel under Psychiatric Impairment Rating Scale involved error; Held – MA’s ratings of the appellant’s impairment in self-care and personal hygiene, social functioning, and travel involved no error; Medical Assessment Certificate upheld.

Decision date: 26 June 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Pene v Nova Patisserie Pty Ltd [2024] NSWPICMP 417

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; argument that Medical Assessor should have had greater regard to evidence in the file; principles of assessment; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, 1 March 2021; State of New South Wales v Kaur; Held – error in assessment of social functioning; Medical Assessment Certificate revoked.

Decision date: 27 June 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Qantas Airways Ltd v Tham [2024] NSWPICMP 418

Workplace Injury Management and Workers Compensation Act 1998; right lower extremity and scarring assessments; appeal by the employer alleged Medical Assessor erred in making a one-tenth deduction under section 323 and sought a greater deduction; Held – the pre-existing condition contributed to the overall level of permanent impairment assessed and a deduction of one-fifth should be made; a deduction of one-tenth was at odds with the available evidence; the scarring assessment of 1% WPI upheld; Medical Assessment Certificate revoked.

Decision date: 28 June 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Right Lower Extremity and Scarring

Vassalli v Endeavour Group Ltd [2024] NSWPICMP 419

Psychological injury; appellant worker alleged assessment was made on the basis of incorrect criteria and contained demonstrable error in the assessment of all categories under the Psychiatric Impairment Rating Scale due to an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed.

Decision date: 28 June 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Banicevic v Fisher & Paykel Australia Pty Ltd [2024] NSWPICMP 420

Workplace Injury Management and Workers Compensation Act 1998; Psychiatric Impairment Rating Scale; Medical Assessor did not take apprehended violence order into account when assessing social functioning; Held – Medical Assessment Certificate revoked.

Decision date: 28 June 2024 | Panel Members: Member Catherine McDonald, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric

Klippert v Shore Hire Holdings Pty Ltd [2024] NSWPICMP 421

Assessment of the lumbar spine; the worker appealed submitting insufficient findings and inadequate reasons for failing to find persistent radiculopathy post-surgery; Held – Medical Appeal Panel found error and a re-examination was considered necessary in the circumstances; Medical Assessment Certificate revoked.

Decision date: 1 July 2024 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr James Bodel | Body system: Lumbar Spine and Scarring

Motor Accidents Merit Review Decisions

Kirwan v AAI Limited t/as GIO [2024] NSWPICMR 13

Motor Accident Injuries Act 2017; claim for statutory benefits and request by claimant for payment of expenses incurred by him in providing documentation and information to the insurer to assist them in calculating his pre-accident weekly earnings; claimant self-employed owner of four companies; accountants determined his earnings, completed Business Activity Statement and tax returns; claimant gave permission to the insurer to contact his accountants; accountants rendered invoice in the sum of $500 plus GST which the insurer refused to pay; Held – the invoice was an expense within the meaning of section 8.10(1) that could be recovered; it was incurred by the claimant in connection with his claim for statutory benefits and was reasonable and necessary; insurer’s decision set aside; insurer to pay the invoice substituted.

Decision date: 26 June 2024 | Merit Reviewer: Belinda Cassidy

Cunha v QBE Insurance (Australia) Limited [2024] NSWPICMR 14

Motor Accident Injuries Act 2017; the claimant was involved in a motor vehicle accident on 19 June 2023; until 28 may 2023 the claimant’s only source of income was a carers pension with respect to care provided by him for his mother; the claimant commenced work as a delivery driver on 28 May 2023 and continued that work for 12 days until the accident on 9 June 2023; the claimant contended that the Centrelink payments were income; the claimant contended that payment for work undertaken by him between 28 May 2023 and 9 June 2023 whilst not actually received during that time should be considered as income for the determination of his pre-accident weekly earnings; the insurer disputed that payments not received could be considered as pre-accident weekly earnings within the meaning of schedule 1 clause 4; Held – the Centrelink carer payments were not income for the purposes of assessing the claimants pre-accident weekly earnings; whilst the claimant performed services in the 12 days before the accident he did not receive any payment for those services until after the accident and thus could not be taken into account for the purposes of assessing his pre-accident weekly earnings; the claimant was entitled to payment of the minimum statutory benefit.

Decision date: 28 June 2024 | Merit Reviewer: Alexander Bolton

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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