Legal Bulletin No. 171

Issued 26 July 2024

Welcome to the one hundred and seventy first 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.

Court of Appeal Decision

Haddad v The GEO Group Australia Pty Ltd (No 2) [2024] NSWCA 140

Media and communications; Publication; Court Suppression and Non-publication Orders Act 2010 (NSW); Informal application that appellant’s name appearing in a published judgment be replaced by pseudonym; Unwarranted assumption that Personal Injury Commission’s acceptance of pseudonym would be adopted; PTSD and major depressive order alone not sufficient to justify order; Criteria require more than that an order be “convenient, reasonable or sensible, or to serve some notion of the public interest”; No evidence of significant risk of harm; Held – the application for a non-publication order is dismissed.

Decision date: 11 July 2024 | Before: Kirk and Stern JJA, and Griffiths AJA

Supreme Court Decision

Yangzom v Allianz Australia Insurance Limited [2024] NSWSC 870

Motor vehicle accident; application for compensation; medical dispute referred to medical assessor; no compensable whole person impairment found; application to have assessment referred for review; application refused; application for judicial review of decisions of both assessor and delegate; assessor and delegate both fell into legal error; decisions of assessor and delegate set aside; matter remitted to President of Personal Injury Commission to be decided according to law; Held – both the decision of the assessor and delegate be set aside; the matter be remitted to the President of the Personal Injury Commission to be decided according to law; unless the parties approach with short written submissions within 14 days, Allianz Australia Insurance Limited to bear Ms Yangzom’s costs, as agreed or assessed.

Decision date: 18 July 2024 | Before: Schmidt AJ

Motor Accidents non-Presidential Member Decisions

Georges v AAI Limited t/as GIO [2024] NSWPIC 60

Motor Accidents Compensation Act 1999; recommendation; application for damages assessment lodged with the Commission in 2022; insurer previously wholly admitted liability in 2017; insurer seeks a discretionary exemption under section 92(1)(b) on the grounds the claimant has made multiple misleading statements with respect to injuries, loss and damage sustained as result of the accident; insurer requires material witnesses who cannot be compelled to give oral evidence; highly complex issues in the facts and assessment of damages; whether matter should be exempted on discretionary grounds; rule 99(3)(a) of the Personal Injury Commission Rules 2021; Rifai v QBE Insurance (Australia) Limited; Held – matter be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 14 February 2024 | Member: David Ford

Rifai v QBE Insurance (Australia) Limited [2024] NSWPIC 80

Motor Accident Injuries Act 2017; recommendation; claimant injured in a motor vehicle accident whilst riding as a pillion passenger on a motorcycle; claimant fell from the motorcycle, landed on the roadway, and was run over by another motorcycle; claimant sustained serious injuries; claimant refused to advise police of the identity of the owner/rider of the motorcycle which he was riding; claimant states he has no recollection of the accident; claim commenced against the Nominal Defendant who denied liability; insurer submits there were multiple witnesses seen riding with the claimant; Nominal Defendant requires attendance of these witnesses at the hearing and submits these witnesses may be reluctant to give evidence at the hearing; whether an exception on discretionary grounds should be sought on the basis the claim involves complex legal and factual issues regarding liability, contributory negligence, and causation; Held – matter be exempted on the grounds the claim potentially involves complex legal or factual issues of liability including issues of contributory negligence, fault or causation, and whether a claimant or witness is considered by the Commission to be a material witness who resides outside the State; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 25 February 2024 | Member: David Ford

Rifai v AAI Limited t/as GIO [2024] NSWPIC 81

Motor Accident Injuries Act 2017; recommendation; claimant injured in a motor vehicle accident whilst riding as a pillion passenger on a motorcycle; claimant, fell from the motorcycle, landed on the roadway, and was run over by another motorcycle; claimant sustained serious injuries; claimant refused to advise police of the identity of the owner/rider of the motorcycle which he was riding; claimant states he has no recollection of the accident; claim commenced against the insurer who denied liability; insurer submits there were multiple witnesses seen riding with the claimant; insurer requires attendance of these witnesses at the hearing and submits these witnesses may be reluctant to give evidence at the hearing; submitted an exception on discretionary grounds should be sought on the basis the claim involves complex legal and factual issues regarding liability, contributory negligence and causation; Held – matter be exempted on the grounds the claim potentially involves complex legal or factual issues of liability including issues of contributory negligence, fault or causation and whether a claimant or witness is considered by the Commission to be a material witness who resides outside the State; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 26 February 2024 | Member: David Ford

Polwarth v Allianz Australia Insurance Limited [2024] NSWPIC 161

Motor Accidents Compensation Act 1999; assessment of damages; liability wholly admitted; claimant a mine worker; allegations of pre-accident injuries overlapping; claim for non-economic loss, past and future economic loss, past and future treatment expenses and past and future domestic care; Held – assessment of damages made in accordance with section 94 plus costs and disbursements as agreed.

Decision date: 24 March 2024 | Member: Elyse White

Lee v Allianz Australia Insurance Limited [2024] NSWPIC 182

Motor Accident Injuries Act 2017; application for discretionary exemption pursuant to section 7.34(1)(b); general complexity; claimant entrepreneurial in various businesses involving various entities within which he traded; both parties retained forensic accountants to analyse various businesses and entities; Insurance Australia Ltd t/a NRMA Insurance v Banos, IAG Ltd t/a NRMA Insurance v Abiad, and IAG Limited t/a NRMA Insurance v Khaled applied; allegations of false and misleading statements, and complex economic loss issues that would involve the cross examination of the claimant, lay witnesses and forensic accountants some of whom may not be compellable to give evidence without the force of a subpoena; parties estimate if heard in the Commission the matter is likely to take two to three days; whether a court hearing is likely to result in the just, quick and cost effective resolution of the real issues in dispute and compel the calling of witnesses that may otherwise not be compellable to give evidence; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 5 April 2024 | Member: Terrence Broomfield

Pickering v AAI Limited t/as GIO [2024] NSWPIC 192

Motor Accident Injuries Act 2017; section 7.34(1)(b); complex factual issues; complex issues of liability, fault and causation; subpoena to issue to Police and third parties, length of hearing; Held – claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 8 April 2024 | Member: Shana Radnan

Insurance Australia Limited t/as NRMA Insurance v Tonkin [2024] NSWPIC 195

Motor Accident Injuries Act 2017; section 6.23; assessment of damages; liability wholly admitted; claimant trapped for over an hour; injuries to her shoulder, neck, and the development of psychological symptoms; claimant in receipt of disabilities benefits for many years; insurer conceded claimant entitled to damages for non-economic loss plus costs for previous legal representation; claimant entitled to reasonable and necessary treatment for accident related injuries; Held – settlement within the range of likely potential damages assessment if claim was to proceed to assessment; settlement just, fair, and reasonable; settlement approved for non-economic loss damages plus costs.

Decision date: 18 April 2024 | Member: Elyse White

AAI Limited t/as GIO v McLachlan [2024] NSWPIC 371

Motor Accident Injuries Act 2017; proposed offer of settlement for approval; claimant t-boned at an intersection whist riding his bicycle; liability wholly admitted; claimant fractured multiple ribs, shoulder and initial mental trauma; injuries improved over time; claimant had a short time of total work incapacity gradually returning to full time work; settlement included an amount for statutory benefits; proposed offer of settlement included a sum for past and future economic loss; Held – proposed offer of settlement approved in the sum of $70,000 noting a credit to the insurer for statutory benefits.

Decision date: 3 July 2024 | Member: Elyse White

Insurance Australia Limited t/as NRMA Insurance v Ramnath [2024] NSWPIC 378

Motor Accident Injuries Act 2017; passenger in a motor vehicle collided with a stone wall at the end of a car park; claimant sustained severe injuries including rib fractures, vertebral body fractures, loose teeth, delirium and left atrium embolus; insurer wholly admitted liability and conceded non-threshold injury and entitlement to damages for non-economic loss; claimant is retired; amount proposed for non-economic loss is $280,000; Held – the proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 15 July 2024 | Member: David Ford

Ojala v Youi Pty Limited [2024] NSWPIC 380

Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; claimant failed to stop at a ‘give way’ sign and collided with insured driver; claimant alleged speed on behalf of the insured driver; Sibley v Kais, O’Neill v Liddle and Podrebersek v Australian Iron and Steel Pty Ltd considered; Held – claimant did not slow down prior to accident and did not keep a proper lookout; insured driver speeding prior to intersection however not satisfied ‘but for’ his speed collision would not have occurred; insured driver was not keeping proper lookout; obligation on each driver of vehicle approaching intersection to take reasonable care; claimant not wholly at fault; departure from standard of care of the reasonable person would amount to contributory negligence; claimant’s contributory negligence assessed at 80%; claimant mostly at fault for the accident; insurer to pay claimant’s expenses.

Decision date: 16 July 2024 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

BKM v CGA [2024] NSWPIC 367

Workers Compensation Act 1987; psychological injury; injury not disputed; dispute pursuant to section 11A(1) as to whether the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline and/or dismissal; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Kooragang Cement Pty Ltd v Bates, Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, and Northern NSW Local Health Network v Heggie; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal; matter remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Act for assessment of permanent impairment.

Decision date: 9 July 2024 | Member: John Turner

Mousamas v Labourpower Recruitment Services Pty Ltd [2024] NSWPIC 374

Workers Compensation Act 1987; disputed injury to lumbar spine; claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of his lumbar spine disease; the respondent to pay weekly benefits compensation and reasonably necessary medical expenses.

Decision date: 11 July 2024 | Member: Fiona Seaton

Gillard v State of New South Wales (New South Wales Police Force) [2024] NSWPIC 375

Workers Compensation Act 1987; claim for section 60 medical or related treatment expenses; whether medicinal cannabis reasonably necessary; denial on basis that treatment for sleep disturbance not related to the undisputed psychological injury suffered by policewoman in the course of her employment; denial inconsistent with respondent’s own psychiatrist that sleep disturbance is a recognised symptom of post-traumatic stress disorder; respondent’s pharmacist conducted detailed interviews with claimant’s treating practitioners and supported the claim; Diab v NRMA Ltd, Broadspectrum Australia Pty Ltd v Gunaratnam and Broadspectrum Australia Pty Ltd v Skiadas considered; Held – the proposed treatment is reasonably necessary – respondent to pay the costs of medical or related treatment.

Decision date: 11 July 2024 | Member: John Wynyard

Faint v Elam Communications Pty Ltd [2024] NSWPIC 377

Workers Compensation Act 1987; claim for section 60 medical or related treatment expenses; whether medicinal cannabis is reasonably necessary; Diab v NRMA Ltd, Rose v Health Commission (NSW) and Bartolo v Western Sydney Area Health Service considered; Held – the provision of up to 2g of medicinal cannabis per day is reasonably necessary medical treatment pursuant to section 60.

Decision date: 12 July 2024 | Member: Mitchell Strachan

Hackett v Chatswood RSL Club & Anor [2024] NSWPIC 379

Workers Compensation Act 1987; claim for weekly compensation and section 60 medical or related treatment expenses; alleged injury with two respondents; claimant asserts that his incapacity after 5 December 2023 solely results from injury in the employ of the first respondent and that his pre-injury average weekly earnings should be based on that injury; no application for apportionment pursuant to section 22; Cluff v Dorahy Bros (Wholesale) Pty Ltd considered and applied; Held – the applicant’s incapacity after 5 December 2023 was caused by both injuries.

Decision date: 15 July 2024 | Member: Paul Sweeney

Jewaid v Superior Structures NSW Pty Ltd [2024] NSWPIC 381

Workers Compensation Act 1987; section 66 claim for permanent impairment of accepted lumbar spine injury and consequential left hip condition; left hip condition disputed; Held – the applicant has not sustained a consequential left hip condition as a result of the accepted lumbar spine injury; award for the respondent for the claim made for a consequential left hip condition; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment of the lumbar spine.

Decision date: 17 July 2024 | Member: Fiona Seaton

Motor Accidents Medical Review Panel Decisions

BJQ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 408

Motor Accident Injuries Act 2017; review of medical assessment; whether psychological injury caused by the motor accident is a threshold injury; Medical Assessor diagnosed an adjustment disorder secondary to pain and certified that the injury was a “minor injury”; Held – the claimant suffers from an adjustment disorder with anxiety as a result of the accident; injury is a threshold injury; Medical Assessment Certificate confirmed.

Decision date: 24 June 2024 | Panel Members: Senior Member Brett Williams, Dr Melissa Barrett, and Dr Wayne Mason | Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Choo [2024] NSWPICMP 441

Motor Accident Injuries Act 2017; medical dispute about permanent impairment; review under section 7.26; neck, lumbar spine, bilateral shoulders and right wrist referred to Medical Review Panel; Medical Assessment Certificate (MAC) assessed 11% permanent impairment; neck injury complaint before accident; insurer submits causation is relevant dispute; SIRA Motor Accident Guidelines, 10 November 2023 considered; Held –  accident mechanism consistent with injuries claimed; no inconsistencies; cervical and lumbar spine condition resolved; permanent impairment assessed at 6%; less than 10%; MAC revoked.

Decision date: 4 July 2024 | Panel Members: Member Terence O’Riain, Dr Geoffrey Stubbs, and Dr Shane Moloney | Injury module: Spine and Upper Limb

AAI Limited t/as GIO v Bateman [2024] NSWPICMP 442

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury and treatment and care; claimant claimed he sustained injuries to the head, cervical spine, thoracic spine and lumbar spine; Medical Assessment Certificate (MAC) determined that cervical degenerative disc disease and thoracic degenerative disc disease was caused by the motor accident; found a non-threshold injury; MAC determined that the referral to an osteopath for treatment did not relate to the injuries caused by the motor accident, was not reasonable and necessary in the circumstances and would not improve the recovery of the claimant; review sought by the insurer under section 7.26; clauses 5.7, 5.8 and 5.9 of the SIRA Motor Accident Guidelines, 10 November 2023 considered and applied; Held – the claimant sustained soft tissue injuries to his head, cervical spine, thoracic spine and lumbar spine caused by the motor accident; such injuries were threshold injuries; referral to an osteopath is not reasonable and necessary in the circumstances and will not improve his recovery; MAC is revoked.

Decision date: 4 July 2024 | Panel Members: Member Anthony Scarcella, Dr Clive Kenna, and Dr Sophia Lahz | Injury module: Spine and Brain Injury

Insurance Australia Limited t/as NRMA v Kozis [2024] NSWPICMP 443

Motor Accidents Compensation Act 1999; review of a medical assessment concerning the need for treatment of care; domestic assistance from the date of the motor accident for various periods to the date of the medical assessment and for the claimant’s life expectancy; issue of causation specifically in respect of the left shoulder; Held – Medical Review Panel not satisfied that the claimant suffered a left shoulder injury caused by the motor accident; the claimant suffered a cervical spine and lumbar spine soft tissue injury; the need for domestic assistance found to be causally related to the motor accident in respect of cervical spine and lumbar spine injuries only; the issue of the number of hours of domestic assistance required referred back to the Commission for assessment by an occupational therapist.

Decision date: 4 July 2024 | Panel Members: Member Elizabeth Medland, Dr Margaret Gibson, and Dr Michael Couch | Injury module: Domestic Assistance

Wahab v Allianz Australia Insurance Limited [2024] NSWPICMP 444

Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about permanent impairment; claimant was a front seat passenger in a vehicle when a front tyre blew out causing the vehicle to lose control and roll over; Medical Assessment Certificate (MAC) found the claimant sustained numerous soft tissue injuries including to lumbar spine and left wrist scaring which was assessed at 6% whole person impairment; Held – MAC is revoked; Review Panel found a total of 8% permanent impairment; left wrist at 3% and cervical spine injury at 5% permanent impairment; in the related proceedings the other Medical Review Panel assessed permanent impairment at 8%; 2% for face disfigurement, scarring and deformity; 3% for right trigeminal nerve injury; 3% for left trigeminal nerve injury; combined certificate results were 15% permanent impairment.

Decision date: 5 July 2024 | Panel Members: Member Ray Plibersek, Dr Thomas Rosenthal, and Dr Drew Dixon | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Bosmans [2024] NSWPICMP 445

Motor Accidents Compensation Act 1999; review of medical assessment under section 63; medical dispute about permanent impairment; Medical Assessment Certificate (MAC) assessed permanent impairment at 21%; cervical spine, lumbar spine, thoracic spine and bilateral shoulders referred to Medical Review Panel; history of several motor accidents before and after subject accident not disclosed to earlier assessors; insurer submits causation, presentation, credit and age of the claimant are relevant factors to take into consideration; Motor Accident Permanent Impairment Guidelines (2018) considered; Medical Review Panel questioned claimant on inconsistencies; Held – accident mechanism is consistent with injuries claimed; accident caused frank ligamentous cervical injury; bilateral shoulders included under Nguyen principal; thoracic and lumbar spine condition resolved; permanent impairment assessed at 12%; MAC revoked.

Decision date: 8 July 2024 | Panel Members: Member Terence O’Riain, Dr Christopher Oates, and Dr Les Barnsley | Injury module: Spine and Upper Limb

Davis v Allianz Australia Insurance Limited [2024] NSWPICMP 446

Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about permanent impairment; claimant was involved in a motor accident as the driver and sole occupant of the vehicle; head on collision; claimant was wearing a seatbelt; airbags were fitted and deployed; driver of the other vehicle was found to be under the influence of alcohol (high range); claimant sustained numerous injuries and underwent numerous surgical procedures; the insurer admitted liability for the claim; Medical Assessor assessed permanent impairment at 7%; Held – Medical Review Panel assessed permanent impairment at 8% for injury to cervicothoracic spine and 1% for scarring; Medical Assessment Certificate revoked.

Decision date: 8 July 2024 | Panel Members: Member Gary Victor Patterson, Dr Ian Cameron, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Seydler v Allianz Australia Insurance Limited [2024] NSWPICMP 447

Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about permanent impairment; claimant injured while working as a tree trimmer; claimant’s legs run over by work truck when the truck was mistakenly put into motion causing bilateral leg crush injuries with micro fractures; claimant developed bilateral knee bone oedema; claimant also alleges injury to right ankle, both hips and lumbar spine; Medical Assessor assessed permanent impairment at 9% and found complex regional pain syndrome was not caused by accident; Mandoukos v Allianz Australia Insurance Limited cited in respect of a nerve injury found but which was not referred for assessment; Held – Medical Review Panel assessed permanent impairment at 18%; complex regional pain syndrome not caused by motor accident; Medical Assessment Certificate revoked.

Decision date: 8 July 2024 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Thomas Rosenthal | Injury module: Spine and Lower Limb

AAI Limited t/as AAMI v Ko [2024] NSWPICMP 448

Motor Accident Injuries Act 2017; review of medical assessment; medical dispute as to treatment and care; claimant was the driver of a vehicle struck by the insured vehicle on driver’s side; the insurer admitted liability for the claim; on-going injuries to right shoulder, lower back and both hips; Medical Assessor found further physiotherapy treatment was not reasonable and necessary; Held – Medical Review Panel found proposed treatment relates to the accident but is neither reasonable or necessary; Medical Assessment Certificate confirmed.

Decision date: 8 July 2024 | Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb | Treatment Type: Domestic Assistance and Physiotherapy

Odisho v Insurance Australia Limited t/as NRMA [2024] NSWPICMP 449

Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about the degree of permanent impairment; Medical Assessor determined that the injuries caused by the accident gave rise to permanent impairment of 3%; Medical Assessor found injuries to the cervical and lumbar spines, shoudlers and knee were caused by accident; Medical Review Panel considered causation; Motor Accident Guidelines applied; permanent impairment determined on the clinical signs presented at examination; Held – Medical Review Panel held only spinal injuries caused by accident; assessed permanent impairment to the lumbar spine at 10%; Medical Assessment Certificate revoked.

Decision date: 8 July 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Mohammed Assem | Injury module: Spine, Upper Limb, and Lower Limb

Insurance Australia Limited t/as NRMA v Pirillo [2024] NSWPICMP 450

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; matter considered on the papers; pre-accident medical history; examination and radiological scans; supraspinatus and bursitis; absence of additional material; Held – claimant sustained threshold injuries to the cervical and lumbar spines, right hip and right shoulder bursitis; non-threshold injury to the right shoulder in the nature of labral tear; Medical Assessment Certificate confirmed.

Decision date: 9 July 2024 | Panel Members: Member Hugh Macken, Dr Drew Dixon, and Dr Clive Kenna | Injury module: Spine, Upper Limb, and Lower Limb

Touma v AAI Limited t/as AAMI [2024] NSWPICMP 451

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury under section 1.6; injuries to the cervical and lumbar spines, bilateral shoulders and chest wall; Medical Assessment Certificate (MAC) determined that the claimant only sustained a soft tissue injury to the cervical spine and that it was a threshold injury; review sought by the insurer under section 7.26 of the Act; clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines considered and applied; Held – the right shoulder injury was not caused by the motor accident; the claimant suffered a threshold injury to the chest wall and lumbar spine being soft tissue injuries; the claimant suffered non-threshold injuries to the left shoulder and cervical spine; MAC is revoked.

Decision date: 9 July 2024 | Panel Members: Member Anthony Scarcella, Dr Alan Home, and Dr Michael Couch | Injury module: Spine and Upper Limb

AAI Limited t/as GIO v Zalghout [2024] NSWPICMP 452

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 cars; Medical Assessment Certificate (MAC) found the claimant sustained psychiatric injuries and assessed permanent impairment of 12% from second accident; Medical Review Panel considered a long-standing history of psychological symptoms and distress; claimant confirmed that the only problem he had arising from the motor accident was continuing back pain; Held – the subject accidents did not cause, contribute or exacerbate any psychological injury or impairment experienced by the claimant; assessment of psychiatric permanent impairment is not needed; MAC revoked.

Decision date: 10 July 2024 | Panel Members: Member Ray Plibersek, Dr Thomas Newlyn, and Dr Wayne Mason | Injury module: Mental and Behavioural

Bhandari v Insurance Australia Limited t/as NRMA [2024] NSWPICMP 453

Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; causation; claimant suffered injury in a motor vehicle accident; Medical Assessment Certificate (MAC) certified left knee injury and left abdominal injury were threshold injuries; injury to the lower back not caused by accident; no complaint of lower back symptoms to four separate treating practitioners over a period of six months post-accident; lower back disc prolapses not caused by the accident; lower back injury not consequential to inactivity whilst recovering from leg injury; consequential injury would not cause disc prolapses suffered by claimant; imaging shows degeneration at multiple levels despite claimant’s age;  Held– Medical Review Panel confirmed injury to left knee and left abdominal injury were caused by the accident and both threshold injuries; lower back injury not caused by the accident; MAC confirmed.

Decision date: 10 July 2024 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Lower Limb and Digestive System

Palavicino v AAI Limited t/as GIO [2024] NSWPICMP 454

Motor Accident Injuries Act 2017; review of medical assessment; assessment of treatment and care; Medical Assessment Certificate (MAC) held that arthroscopic left shoulder surgery was not reasonable and necessary; causation; examination required; range of motion and abduction left shoulder assessed; aggravation of preexisting joint pathology; no evidence of rotator cuff tear; mild supraspinatus tendinopathy; long history of treatment; Held – arthroscopic surgery of rotator cuff repair not reasonable and necessary; Medical Assessment Certificate confirmed.

Decision date: 10 July 2024 | Panel Members: Member Hugh Macken, Dr Drew Dixon, and Dr Clive Kenna | Treatment Type: Surgery

Workers Compensation Medical Appeal Panel Decisions

Benson v Veritas House [2024] NSWPICMP 456

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of psychological injury; all four grounds of appeal under s 327(3) relied upon by appellant; no evidence of deterioration amount to a change in the degree of permanent impairment; application to admit fresh evidence rejected; consideration of psychiatric impairment rating scale (PIRS) of social functioning; concentration, persistence and pace; and employability; Held – demonstrable error made by Medical Assessor in relation to findings of inconsistency; worker had marriage and another relationship break down since injury; PIRS of social functioning revoked; other two PIRS confirmed; Medical Assessment Certificate revoked; new certificate issued.

Decision date: 11 July 2024 | Panel Members: Member Parnel McAdam, Dr Doug Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

De Fries v The Disability Trust [2024] NSWPICMP 457

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment of the left shoulder; whether assessor erred in making multiple deductions for pre-existing injury and pre-existing condition; Held – Medical Assessment Certificate revoked; new certificate issued.

Decision date: 11 July 2024 | Panel Members: Member Richard Perrignon, Dr Drew Dixon, and Dr Todd Gothelf | Body system: Right Shoulder and Left Shoulder

Tyres 4U Pty Ltd ATF The TWA Trust v Gozmierska [2024] NSWPICMP 458

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment; the appellant submitted that the Medical Assessor (MA) erred in providing assessment contrary to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines); failed to provide any or any sufficient reasoning to explain divergence between his assessment and that provided by the independent medical examiners; Held – MA erred in providing assessment of whole person impairment with reference to a combination bilaterally of range of motion and sensory involvement contrary to the Guidelines; finding on re-examination of a full range of movement in both wrists and a marked disparity of bilateral sensory involvement to that reported by the original MA; Medical Assessment Certificate revoked.

Decision date: 11 July 2024 | Panel Members: Member Jacqueline Snell; Dr Roger Pillemer, and Dr Christopher Oates | Body system: Right Upper Extremity and Left Upper Extremity

Affinity Health Pty Ltd v Talbut [2024] NSWPICMP 459

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment with respect to psychological injury; appellant employer alleged the assessment was made on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale categories because of an inadequate path of reasoning; Held – the Medical Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed.

Decision date: 12 July 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Bruce v Secretary, Department of Education [2024] NSWPICMP 460

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment of hand injury; Medical Assessor (MA) alleged to have failed to properly apply the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 because he did not make an assessment of the lack of sensation described as a peripheral nerve injury; Held – MA was correct to assess of digital nerve impairment rather than peripheral; scarring omitted from referral; Medical Assessment Certificate revoked.

Decision date: 12 July 2024 | Panel Members: Member Catherine McDonald, Dr Margaret Gibson, and Dr Roger Pillemer | Body system: Left Upper Extremity and Scarring

AC Stone Group Pty Ltd v Chuang [2024] NSWPICMP 461

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; appeal in respect of each category of the psychiatric impairment rating scale; need to ascribe conduct to the correct scale; worker continued to study and commenced new employment immediately after injury; Ballas v Department of Education (State of NSW) and Tasevski v Westpac Banking Corporation considered; Held – errors found with respect to concentration, persistence and pace; errors with respect to employability; Medical Assessment Certificate revoked.

Decision date: 15 July 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Wilson v Shoalbus Pty Ltd [2024] NSWPICMP 462

Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of whole person impairment in respect of noise induced hearing loss; long work history in varied employment and not all in noisy employment; Shone v Country Energy distinguished; Held – Medical Assessor gave detailed reasons for relying only on findings at 3000 Hz and 4000 Hz; when the hearing loss was not progressive; Medical Assessment Certificate confirmed.

Decision date: 17 July 2024 | Panel Members: Member Catherine McDonald, Dr Robert Payten, and Dr Thandavan Raj | Body system: Hearing Loss

Kurido v Dulux Group (Australia) Pty Ltd [2024] NSWPICMP 465

Workplace Injury Management and Workers Compensation Act 1998; appeal against medical assessment whole person impairment; psychological injury; application to rely on statement about conduct of examination declined; alleged error in assessment of social functioning under the permanent impairment rating scale; Lukacevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Ltd, and State of New South Wales v Ali; Held – evidence supports the history obtained and assessment made by Medical Assessor; Medical Assessment Certificate confirmed.

Decision date: 17 July 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decisions

BNG v AAI Limited t/as GIO [2024] NSWPICMR 16

Motor Accident Injuries Act 2017; claim for statutory benefits; suspension of payments due to claimant’s failure to provide certificates of fitness; insurer sent suspension notice and subsequently suspended payments; claimant had been in gaol on remand and was released after charges dismissed; claimant sought recovery of back payments; insurer refused; claimant referred dispute for merit review; Held– claimant had not complied with section 3.15(1) of the Act; the insurer had not communicated with the claimant the need to provide the certificate and should not have suspended weekly payments; the insurer had also not complied with clause 4.61 of the Motor Accident Guidelines (the Guidelines) as it had not contacted the claimant; the insurer had not complied with clause 4.62 of the Guidelines and enquired as to claimant’s excuse; claimant’s excuse for non-compliance reasonable; insurer’s decision to suspend not lawful and set aside; claimant entitled to weekly payments during period of unlawful suspension.

Decision date: 5 July 2024 | Merit Reviewer: Belinda Cassidy

Stephens v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 17

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits; section 3.13(1) meaning of “retiring age”; sections 23(5D) and 43 of the Social Security Act 1991 (Cth); qualification for the age pension; meaning of pension age; Held – the reviewable decision is confirmed.

Decision date: 9 July 2024 | Merit Reviewer: Katherine Ruschen

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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