Legal Bulletin No. 172
This bulletin was issued on 2 August 2024
Issued 2 August 2024
Welcome to the one hundred and seventy second 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 Decisions
Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178
Administrative law; judicial review; decision of Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW); where Appeal Panel revoked Medical Assessor’s assessment of whole person impairment; whether primary Judge erred in finding no jurisdictional error in Appeal Panel’s decision; whether primary Judge erred in finding no denial of procedural fairness in Appeal Panel’s decision; workers compensation; injury; dispute as to assessment of whole person impairment; deduction for previous injury pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW); where Medical Assessor did not refer to evidence of previous injury; powers of Medical Appeal panel to revoke and issue new certificate of assessment Held – grant leave to appeal; direct the applicant to file and serve a notice of appeal in the form annexed to the summons seeking leave to appeal filed on 14 March 2024 within 7 days hereof.
Decision date: 30 July 2024 | Before: Leeming and Adamson JJA, and Price AJA
Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191
Administrative law; judicial review; whether primary Judge erred in finding jurisdictional error and error of law; failure of Medical Assessor to assess relevant material and make deduction based on previous injury; whether Medical Appeal Panel of the Personal Injury Commission exceeded scope of grounds of appeal; whether assessment de novo within grounds of appeal; Held – the appeal be allowed; set aside the orders made by Rothman J on 12 December 2023; in lieu thereof, dismiss the Amended Summons filed on 11 May 2023.
Decision date: 1 August 2024 | Before: White P, and White and Stern JJA
Presidential Member Decisions
Douglass Hanly Moir Pathology Pty Ltd v Davoudi [2024] NSWPICPD 40
Whether the Principal Member failed to take into account a clearly articulated submission; Dranichnikov v Minister for Immigration & Multicultural Affairs, and Wang v State of New South Wales applied; Held – matter remitted to a different member for re-determination of the respondent’s entitlements (if any) to weekly payments of compensation.
Decision date: 24 July 2024 | Before: Deputy President Elizabeth Wood
Davoudi v Douglass Hanly Moir Pathology Pty Limited [2024] NSWPICPD 41
Extension of time to appeal a decision of a Member; section 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021; Gallo v Dawson applied; whether the Principal Member erred by determining an issue not before her; Banque Commerciale SA, En Liquidation v Akhil Holdings Limited applied; Held – application for an extension of the time to appeal is refused.
Decision date: 24 July 2024 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Willard v QBE Insurance (Australia) Limited [2024] NSWPIC 20
Motor Accident Injuries Act 2017; miscellaneous claims assessment dispute as to whether claimant is wholly or mostly at fault for the motor accident; motor accident at ‘T’ intersection; dispute as to whether claimant executed left-hand turn when insured driver was already indicating her intention to merge into the kerbside lane; whether the claimant failed to keep a proper lookout; Held – claimant had completed the execution of her turn at the time at which the insured commenced merging into kerb side lane and collided with claimant’s vehicle propelling it to the left so that claimant collided with a ‘No Stopping’ sign; motor accident was not caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11, 3.28 and 3.36.
Decision date: 16 January 2024 | Member: Bridie Nolan
Nguyen v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 47
Motor Accident Injuries Act 2017; miscellaneous claims dispute; whether injured person was wholly or mostly at fault; claimant a pedestrian attempting to cross a roadway; liability for ongoing statutory benefits beyond 26 weeks denied by insurer; expert evidence considered; CCTV footage; submitted that claimant did not owe a duty of care to the insured and therefore definition of ‘fault’ in section 1.4 does not apply; argued that insurer ought not to be permitted to make alternative argument that the claimant is mostly at fault; whether Civil Liability Act 2001 (CL Act) applies; Held – CL Act applies to statutory benefits; no issue of credit as alleged by the insurer; insured driver not at fault; exceptional costs order made under section 8.10(4)(b).
Decision date: 6 February 2024 | Member: Elizabeth Medland
AAI Limited t/as GIO v Styles [2024] NSWPIC 154
Motor Accident Injuries Act 2017; settlement approval; rear-end collision involving the claimant as a driver; proposed settlement for non-economic loss and no allowance for economic loss; claimant retired from workforce; injuries included a C3/4 disc herniation, left shoulder and back injuries; claimant underwent a C3/4 laminectomy which did not produce a good result, and claimant experienced anaesthetic awareness during surgery; accidental dental damage during operation; activities of daily living, including playing golf, were worsened after the surgery; Held – proposed settlement approved as being just, fair and reasonable, and within the range of likely potential damages assessment for a claim had it been assessed by the Commission.
Decision date: 26 March 2024 | Member: Elizabeth Medland
Allianz Australia Insurance Limited v Singh [2024] NSWPIC 313
Settlement approval; whole person impairment; assessment of non-economic loss; psychological injury; past economic loss; future economic loss; vicissitudes; Held – settlement approved.
Decision date: 17 June 2024 | Member: Hugh Macken
Horton v AAI Limited t/as GIO [2024] NSWPIC 382
Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2020 (PIC Act); application for damages; dismissal; best endeavours; guiding principle; claimant sought referral to stood over list; Personal Injury Commission (Commission) required to give effect to guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings; insurer asked for proceedings to be dismissed; insurer still investigating liability; parties have not used best endeavours to settle claim before referring for assessment; Held – Commission has jurisdiction and functions conferred on it by MAI Act which requires parties to use best endeavours to settle claim before referring for assessment; claim not ready to proceed; no need to protect limitation period where proceedings not filed within three years of date of accident; proceedings dismissed under section 54 of the PIC Act.
Decision date: 25 June 2024 | Member: Susan McTegg
Aryan v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 383
Claim for damages; claimant suffered soft tissue injuries; claimant self-employed in a panel beater business prior to motor accident; claimant did not return to working in his business until 2020; medical evidence supports finding that the claimant was fit to return to pre-injury work capacity in 2018; rehabilitation reports demonstrate that claimant had failed to mitigate his loss; Held – claimant awarded damages for past loss of earnings to the date he had recovered to return to pre-injury duties and/or when he failed to mitigate loss.
Decision date: 15 July 2024 | Member: Bridie Nolan
Bellchambers v Allianz Australia Insurance Limited [2024] NSWPIC 384
Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages under section 7.36(3) and (4); claimant was a front seat passenger in a motor vehicle involved in a collision with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered major depressive disorder and injuries to his cervical spine, right shoulder, and right knee, resulting in an assessment of whole person impairment of 15%; claimant is a self-employed farmer and environmental consultant; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss, and past and future economic loss.
Decision date: 17 July 2024 | Member: David Ford
Michael v Allianz Australia Insurance Limited [2024] NSWPIC 387
Motor Accident Injuries Act 2017; whether claimant is wholly or mostly at fault; miscellaneous claims assessment; elderly claimant getting into taxi with hand on door when she fell; dispute as to whether claimant injured during the “driving” of the insured vehicle or simply due to a fall; if incident is an accident the insurer conceded claimant not wholly or mostly at fault; section 3.28; Held –evidence of claimant’s husband not accepted where he had early dementia and provided conflicting versions of event; evidence of claimant preferred where corroborated by evidence of independent witness over evidence of insured driver; insured vehicle moved when claimant attempting to enter vehicle; constitutes a motor accident within section 1.4; claimant not wholly or mostly at fault; claimant entitled to regulated costs.
Decision date: 19 July 2024 | Member: Susan McTegg
Parker v Allianz Australia Insurance Limited [2024] NSWPIC 388
Motor Accident Injuries Act 2017; miscellaneous claims dispute whether claimant is wholly or mostly at fault; sections 3.11 and 3.28; contributory negligence; section 3.38; claimant riding a motorcycle with a pillion passenger as part of a group of motorcyclists; insured driver driving a utility ahead of, and in the same direction as, the claimant; the insured driver slowed and turned right towards a rural property gate; whether an indicator was activated and if so, when; police body worn footage and witness evidence considered; Held – the insured did activate the right hand indicator, however, only immediately before the turn was executed therefore meaning the claimant had no reasonable opportunity to avoid a collision with the insured vehicle; claimant was not wholly or mostly at fault for the accident and 0% contributory negligence assessed.
Decision date: 22 July 2024 | Member: Elizabeth Medland
Mayer v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 393
Motor Accident Injuries Act 2017; miscellaneous claims dispute regarding liability for treatment and care expenses under section 3.28; claimant had earlier been certified as being wholly at fault for the accident; claimant had surgery within the “liability period” which was the subject of a medical assessment which certified the surgery to be reasonable and necessary and caused by the accident; insurer denied treatment expenses outside the “liability period”; claimant self-represented and argued that the expenses claimed were directly related to the surgery that the insurer was found liable for and ultimately paid for; issue for determination centred on statutory interpretation of the words “expenses incurred” contained within section 3.28(1); Held – “incurred” is not synonymous with “provided”; the liability for the reasonable and necessary treatment expenses directly related to the surgery were “incurred” at the time of the surgery and therefore the insurer is liable; issue of “reasonable and necessary” is not a miscellaneous claims dispute and would amount of a “medical assessment” matter for the purposes of Schedule 2.
Decision date: 24 July 2024 | Member: Elizabeth Medland
Chaar v AAI Limited t/as GIO [2024] NSWPIC 396
Motor Accident Injuries Act 2017; claim for economic loss; rear-end collision; liability for damages admitted; claimant sustained injuries to his neck, lumbar spine and shoulders; before accident claimant suffered mental illness; claimant an Uber driver and security guard before accident; stopped work after accident; did not return to work until December 2022; insurer questioned credit; inconsistencies between statements and earnings documentation; claim for future economic loss based on loss of earnings as security guard; insurer disputes pre-accident weekly earnings (PAWE) as basis for loss of earnings compared with tax returns; Held – claimant inconsistent witness but psychological condition supports alternative explanation to insurer’s dishonesty claim and is generally corroborated; medical evidence supports past and ongoing disability; past economic loss claim accepted; accident caused change in most likely future circumstances; claimant able to maintain work with suitable duties; claimant likely to remain as an Uber driver; PAWE basis to assess past economic loss; past income tax paid; future economic loss assessed; credit for statutory benefits; total damages assessed less statutory benefits for weekly payments; costs assessed.
Decision date: 25 July 2024 | Member: Terence O’Riain
Workers Compensation non-Presidential Member Decisions
BTX v CPO & Ors [2023] NSWPIC 682
Workers Compensation Act 1987; application for lump sum death benefit; the deceased was the sole director and employee of the respondent company; the deceased suffered a needle stick injury whilst attending upon a construction site where a residential dwelling was being built that was purchased in the name of the deceased; the deceased suffered an psychological injury as a result of the needle stick injury and committed suicide; Hook v Rolfe; Skea v Legg; Held –there was a sufficient employment connection to the attendance at the construction site; the puncture wound arose in the course of employment; first respondent to pay lump sum benefit and incurred funeral expenses.
Decision date: 19 December 2023 | Senior Member: Elizabeth Beilby
BTX v CPO & Ors [2024] NSWPIC 77
Workers Compensation Act 1987; application for lump sum death benefit; parties were able to propose consent orders so far as apportionment of the lump sum benefit pursuant to section 25(1)(a) plus interest; TNT Group 4 Pty Ltd v Halioris applied; Held – proposed apportionment assessed as appropriate; no other person could be considered dependant at the relevant time; orders made in accordance with proposed Consent Orders.
Decision date: 9 February 2024 | Senior Member: Elizabeth Beilby
Glenaeon Rudolf Steiner School Ltd v Oezodabasyan & Ors [2024] NSWPIC 329
Claim in respect of lump sum death benefits; parties agreed on proposed resolution of matter; Held – apportionment deemed appropriate in the circumstances.
Decision date: 24 June 2024 | Senior Member: Elizabeth Beilby
Birta v Camperdown Childcare Centre [2024] NSWPIC 385
Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998; alleged hearing loss due to noise exposure working as a chef; claim for hearing aids; permanent impairment; whether claim was brought within time; applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due; Held – applicant brought her claim within time; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment; the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of noise induced hearing loss; the injury has materially contributed to the need for hearing aids; respondent to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.
Decision date: 18 July 2024 | Member: Fiona Seaton
Pratt v Bindaree Beef Pty Ltd [2024] NSWPIC 386
Workers Compensation Act 1987; claim for injury to left ankle with consequential conditions to lumbar spine, left hip, and right hip alleged to result from the left ankle injury; chronic pain; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports, other treatment records, and claim correspondence; whether the applicant sustained consequential conditions to her lumbar spine, left hip, and right hip resulting from the accepted left ankle injury sustained; how the terms of the referral to medical assessment of the applicant’s chronic pain should be worded; Chapter 17 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Sakr v Merrylands Christian Preschool Association Inc, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Ltd, Nguyen v Cosmopolitan Homes, Drca v KAB Seating Systems Pty Ltd, and Arquero v Shannons Anti Corrosion Engineers Pty Ltd considered; Held – the applicant has sustained consequential conditions to her lumbar spine, left hip, and right hip resulting from the accepted left ankle injury which she sustained; matter remitted to the President for referral to a Medical Assessor to determine permanent impairment.
Decision date: 18 July 2024 | Member: Gaius Whiffin
Workers Compensation Act 1987; sections 4, 11A(1) and (3), 36, 37, 38 and 60; psychological injury; injury disputed; section 11A(1) defence that injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline; Kooragang Cement Pty Ltd v Bates, Attorney General’s Department v K, AV v AW, Ariton Mitic v Rail Corporation of NSW, Jackson v Work Directions Australia Pty Ltd, Ponnan v George Weston Foods Ltd, and Manly Pacific International Hotel Pty Ltd v Doyle considered and applied; Held – applicant sustained a psychological injury arising out of or in the course of her employment; applicant’s employment was the main contributing factor to the psychological injury; applicant’s 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; applicant has had no current work capacity to date.
Decision date: 19 July 2024 | Member: John Turner
Yandell v SAE Institute Pty Limited [2024] NSWPIC 392
Workers Compensation Act 1987; claim for compensation pursuant to section 60AA for past domestic assistance; accepted ‘injury’; commutation agreement registered; whether liability to pay the compensation claimed commuted to lump sum; effect of section 87K; Held – the commutation agreement registered commuted the respondent’s full liability in respect of the injury; no remaining entitlement to past expenses pursuant to section 60AA; award in favour of the respondent.
Decision date: 23 July 2024 | Member: Rachel Homan
Bennett v The Hills Shire Council [2024] NSWPIC 394
Workers Compensation Act 1987; section 11A(1); psychological injury; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits; Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie; 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, A1 Granny Flats v Workers Compensation Nominal Insurer (icare), Ponnan v George Weston Foods Ltd, Dunn v Department of Education and Training, and Bottle v Wieland Consumables Pty Ltd; Held – applicant’s accepted 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 performance appraisal, discipline and/or provision of employment benefits.
Decision date: 24 July 2024 | Member: John Turner
Motor Accidents Medical Review Panel Decisions
McDonald v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 52
Degree of impairment greater than 10%; prolonged grief disorder; alcohol use; end of life decisions; unresolved grief; psychiatric impairment; no prior psychiatric conditions; clinical conditions for prolonged grief disorder; mental state examination; current functioning; psychiatric impairment rating scale; Held – Medical Assessment Certificate revoked; prolonged grief disorder giving rise to 9% whole person impairment.
Decision date: 1 February 2024 | Panel Members: Member Hugh Macken, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Lim [2024] NSWPICMP 92
Motor Accident Injuries Act 2017; claimant suffered injury in a multi-vehicle accident on his way to work; claimant presented to his GP the next day with neck pain, right shoulder girdle pain, lower back pain and pain in the knees; disputes as to threshold injury, reasonable and necessary care and treatment improving recovery; Held – Medical Assessment Certificate confirmed; no issues as to principle.
Decision date: 22 February 2024 | Panel Members: Gary Victor Patterson, Dr Drew Dixon, and Dr Tania Rogers | Injury module: Spine, Upper Limb, and Lower Limb | Treatment Type: GP Consultations and Radiological Investigations
Marroun v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 141
Motor Accident Injuries Act 2017; whether claimant suffered a threshold injury; Medical Assessor found the claimant did not suffer from a psychological injury caused by the motor accident; long-standing pre-existing psychological symptoms and disorders; Held – the claimant has suffered an exacerbation of pre-existing posttraumatic stress disorder caused by the motor accident; a material worsening of claimant’s activities of daily living; a worsening of a pre-existing condition constitutes an injury; an exacerbation of post traumatic stress disorder is not a threshold injury; Medical Assessment Certificate revoked.
Decision date: 8 March 2024 | Panel Members: Member Elizabeth Medland, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural
Bridgefoot v Allianz Australia Insurance Limited [2024] NSWPICMP 194
Motor Accident Injuries Act 2017; medical dispute; claimant suffered two injuries to knees in school bus accidents on two separate occasions in 2018 and 2019; the 2019 accident aggravated the pre-existing symptomatic injuries from the 2018 injury of to the right knee; ensuing severe right knee pain which did not improve with conservative treatment of further physiotherapy and came to a self-funded right total knee replacement; whether the right knee injuries the subject of the claims in the 2018 accident and the 2019 accident are injuries caused by the motor accident and whether such an injury is a threshold injury; whether total knee replacement an injury caused by a motor vehicle accident; whether total knee replacement a “soft tissue injury”; Held – Medical Assessment Certificate revoked; contusions to right knee in 2019 accident caused the need for a total knee replacement; total knee replacement does not satisfy the definition of “soft tissue injury” in section 1.6, in that it is not harm or disturbance done to the tissue that connects, supports or surrounds other structures or organs of the body, alone; total knee replacement is the total replacement of this soft tissue joint material, namely, cartilage with a prosthesis.
Decision date: 28 March 2024 | Panel Members: Member Bridie Nolan, Dr Alan Home, and Dr Sophia Lahz | Injury module: Spine and Lower Limb
Bridgefoot v CIC Allianz Insurance Limited [2024] NSWPICMP 195
Motor Accident Injuries Act 2017; medical dispute; claimant suffered two injuries to knees in school bus accidents on two separate occasions in 2018 and 2019; the 2019 accident aggravated the pre-existing symptomatic injuries from the 2018 injury of to the right knee; ensuing severe right knee pain which did not improve with conservative treatment of further physiotherapy and came to a self-funded right total knee replacement; whether the right knee injuries the subject of the claims in the 2018 accident and the 2019 accident are injuries caused by the motor accident and whether such an injury is a threshold injury; whether total knee replacement an injury caused by a motor vehicle accident; whether total knee replacement a “soft tissue injury”; Held – right knee pain after the 2018 accident does not constitute a distinct injury to the right knee in the 2018 accident, which constituted any contributory factor to her ongoing knee condition; Medical Assessment Certificate revoked.
Decision date: 3 April 2024 | Panel Members: Member Bridie Nolan, Dr Alan Home, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316
Motor Accident Injuries Act 2017 (MAI Act); section 7.26(6A); threshold injury; David v Allianz Australia Ltd considered; whether presence of radiculopathy can be established by medical assessment at any time since motor accident; MAI Act creates a scheme whereby the Medical Review Panel ultimately stands in the shoes of the insurer to resolve a medical dispute arising over the insurer’s original assessment as to whether the injury caused by the motor accident is a threshold injury; the relevant clinical assessment undertaken by medical practitioner for the purposes of clause 5.5 of the Motor Accident Guidelines (the Guidelines) is therefore the Medical Review Panel medical assessors’, or either one of them comprising members of the Medical Review Panel; the soft tissue injury assessment under clauses 5.7-5.9 of the Guidelines is that undertaken by medical assessor(s) on the Medical Review Panel upon re-examination, and is not any assessment undertaken by a suitably qualified medical practitioner at any stage in the medical dispute’s history; Held – Medical Assessment Certificate confirmed; no radiculopathy present on Medical Review Panel’s assessment; injury occasioned by motor accident a threshold injury.
Decision date: 20 May 2024 | Panel Members: Member Bridie Nolan, Dr Christopher Oates, and Dr Clive Kenna | Injury module: Spine and Upper Limb
Thomson v QBE Insurance (Australia) Limited [2024] NSWPICMP 319
Medical dispute; whole person impairment (WPI); psychological injury; major depressive disorder; travel phobia; psychiatric impairment rating scale assessment; Held – Medical Assessment Certificate revoked; WPI greater than 10%.
Decision date: 21 May 2024 | Panel Members: Member Bridie Nolan, Dr Samuel Lim, and Dr Samson Roberts | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Lewis [2024] NSWPICMP 337
Motor Accidents Injuries Act 2017; medical assessment dispute; Schedule 2 cl 2; psychological injury caused by motor accident; whether threshold injury; Held – adjustment disorder; threshold injury; Medical Assessment Certificate revoked and replaced.
Decision date: 21 May 2024 | Panel Members: Member Bridie Nolan, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Almassri [2024] NSWPICMP 338
Motor Accident Injuries Act 2017; whether claimant suffered a threshold injury; Medical Assessor found claimant suffers major depressive disorder caused by the motor accident, not a threshold injury; causation; claimant uses cannabis as a consequence of physical injuries; no evidence of previous cannabis use; absence of any psychological complaints within the material provided, however, medical evidence out of date with documentation only evidencing complaints up until 2020; Held – absence of psychological complaint to a medical professional is not in itself conclusive evidence that a psychological injury has not taken place; the claimant suffers a cannabis use disorder and consequent cannabis-induced depressive disorder caused by the motor accident; injuries are not threshold injuries; an exacerbation of post traumatic stress disorder is not a threshold injury; Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Elizabeth Medland, Dr Glen Smith, and Dr Michael Hong | Injury module: Mental and Behavioural
Krapceva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 472
Prior to accident, claimant had been treated for supraventricular tachycardia (SVT) and had medication for it, but at the time of the accident was not taking that medication; history of heart palpitations by a physiotherapist six months post-accident but no other history of this following the accident before this time; claimant had investigations in March 2021 where the examining heart specialist was not satisfied that the claimant had SVT; Medical Assessor concluded that the complaint of SVT was caused by the accident but provided no reasons for this; causation considered by the Medical Review Panel; Held – the claimant had a demonstrated predisposition to SVT and the occurrence of the accident did not satisfy the panel that on the balance of probabilities it was a contributing cause which was more than negligible; Medical Assessment Certificate revoked.
Decision date: 11 July 2024 | Panel Members: Member Alexander Bolton, Dr Nigel Ackroyd, and Dr Wing Chan | Injury module: Cardiovascular System
CIC Allianz Insurance Limited v Al-Zu'bi [2024] NSWPICMP 473
Motor Accident Injuries Act 2017 (MAI Act); medical assessment of whole person impairment (WPI) by Medical Assessor who determined that claimant had a WPI of greater than 10%; review sought by insurer under section 7.26; claimant allegedly suffered a moderately displaced and impacted bicondylar tibial plateau fracture requiring open reduction and internal fixation, a mild to moderately displaced fracture of the left fibular head and neck, an injury to the left knee, an injury to the left shoulder including a mildly displaced comminuted fracture of the left scapula, an injury to the left ankle and left hindfoot and a psychiatric condition in a motor accident on 22 June 2019; clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation considered and applied, clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment. Held – Medical Assessment Certificate revoked; the claimant sustained injuries caused by the motor accident; the claimant’s injuries caused by the motor accident gave rise to a whole person impairment which was not greater than 10%.
Decision date: 12 July 2024 | Panel Members: Member Anthony Scarcella, Dr Margaret Gibson, and Dr Ian Cameron | Injury module: Upper Limb and Lower Limb
Gad v Allianz Australia Insurance Limited [2024] NSWPICMP 475
Motor Accident Injuries Act 2017; claimant was the driver of a car that was in a T-bone collision with another car in an intersection; Medical Assessor found the claimant sustained numerous injuries which was assessed at a whole person impairment (WPI) of 7%; Medical Review Panel’s opinion was that the claimant suffers from both post traumatic stress disorder which is resolving and a persistent depressive disorder caused by the subject accident giving rise to WPI of 6%; claimant reported a prior history of psychological symptoms that pre-dated the subject motor accident; Medical Review Panel noted that in her social media the claimant demonstrated examples of social functioning and social activity with friends and family different to the levels she reported experiencing to the Medical Review Panel at the re-examination; Held – Medical Assessment Certificate revoked.
Decision date: 16 July 2024 | Panel Members: Member Ray Plibersek, Dr Wayne Mason, and Dr Gerald Chew | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Ahmed [2024] NSWPICMP 476
Motor Accident Injuries Act 2017; section 1.6(3); threshold injury; specific phobia (driving); Medical Assessor found claimant sustained a specific phobia for driving cars, which was not a threshold injury; insurer sought review; Held – the claimant satisfied DSM-5 criteria for specific phobia for driving caused by the accident; non-threshold injury; Medical Assessment Certificate confirmed.
Decision date: 16 July 2024 | Panel Members: Member Susan McTegg, Dr Christopher Canaris, Dr Michael Hong | Injury module: Mental and Behavioural
Marzifar v Allianz Australia Insurance Limited [2024] NSWPICMP 477
Motor Accident Injuries Act 2017; medical dispute as to whether the injuries sustained were threshold injures; Medical Review Panel conducted a medical examination; the somatic symptom disorder was accepted as causally related to the motor vehicle accident; Held – Medical Assessment Certificate confirmed; the injury referred for assessment and caused by the accident was a threshold injury.
Decision date: 16 July 2024 | Panel Members: Member Terence Stern OAM, Dr John Baker, and Dr Melissa Barrett | Injury module: Mental and Behavioural
Emery v AAI Limited t/as GIO [2024] NSWPICMP 478
Motor Accident Injuries Act 2017; Motor Accident Guidelines; causation; cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder, and legs; compression fracture; dispute related to the assessment of whole person impairment (WPI); Medical Assessor (MA) assessed 7% WPI; notwithstanding lack of contemporaneous complaint causation of injury to the cervical spine, both shoulders, and the left leg established where the pain arising from the thoracolumbar spine would have masked perception of pain in other body parts; no injury to right leg; Norrington v QBE Insurance (Australia) Ltd, and Briggs v IAG Limited t/as NRMA Insurance; cervical spine assessed as DRE cervicothoracic category I or 0% WPI; right shoulder WPI 2%; left shoulder injury resolved; left leg contusions resolved; in assessing injury to thoracic and lumbar spine, Medical Review Panel considered clause 6.146 of the Guidelines applies and not clause 6.151; endplate fracture of T12 assessed as DRE category II or 5% WPI; wedge compression fracture of the lumbar spine assessed as DRE category II also gives rise to 5% WPI; in accordance with clause 6.146 of the Guidelines the impairment to the thoracolumbar spine can only be allocated to one region of the spine (the highest region); both the thoracic and lumbar regions give rise to 5% WPI so the Medical Review Panel allocates the 5% WPI to the lumbar spine; Held – Medical Assessment Certificate revoked and certificate assessing 7% WPI issued.
Decision date: 17 July 2024 | Panel Members: Member Susan McTegg, Dr Clive Kenna, and Dr Christopher Oates | Injury module: Spine, Upper Limb, and Lower Limb
QBE Insurance (Australia) Limited v Edwards [2024] NSWPICMP 479
Motor Accidents Compensation Act 1999; whole person impairment; treatment dispute; claim for injury to lower back during the use and operation of a roller for the local council in 2016; injury diagnosed as muscle strain and was the subject of a workers compensation insurance claim; recurrence of lower back symptoms in 2018 at which time claimant made claim for compulsory third party insurance for motor accident in 2016; subsequent incident in 2021; causation of injury, impairment and need for treatment; Held – injury and impairment relates to 2016 accident; treatment relates to 2016 accident and is reasonable and necessary in the circumstances.
Decision date: 17 July 2024 | Panel Members: Member Bridie Nolan, Dr Cline Kenna, and Dr Ian Cameron | Injury module: Spine and Skin | Treatment Type: Surgery
Shen v AAI Limited t/as AAMI [2024] NSWPICMP 480
Motor Accident Injuries Act 2017; Medical Assessor determined the degree of permanent impairment caused by the accident was 7% and that the proposed treatment disputes were not reasonable or necessary; Medical Review Panel considered the issue of causation; Held – the injuries referred and caused by the accident gave rise to a permanent impairment of 12%; the proposed treatment for eight sessions of physiotherapy in relation to the knee injury was causally related to the accident and was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.
Decision date: 17 July 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb | Treatment Type: Radiological Investigations and Physiotherapy
Park v Allianz Australia Insurance Limited [2024] NSWPICMP 481
Motor Accident Injuries Act 2017; whole person impairment (WPI); physical injuries; causation; Medical Assessor certified a 1% WPI due to a partial medial meniscectomy of the left knee; injuries to the cervical spine, lumbar spine, left shoulder, left wrist and left knee found to be caused by the accident; injuries to the right shoulder, right wrist, right knee and left ankle found to be not related; Medical Review Panel noted delayed onset of symptoms and complaint when nature of alleged injuries would have resulted in immediate symptoms; Held – injuries to the cervical spine, lumbar spine and left knee caused by the accident and give rise to 3% WPI; injuries to the left wrist and left shoulder caused by the accident but have resolved; injuries to the right wrist, right shoulder, right knee and left ankle not caused by the accident.
Decision date: 18 July 2024 | Panel Members: Member Elizabeth Medland, Dr Mohammed Assem, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Flemming v The Trustee for Isen Family Trust and Ors [2024] NSWPICMP 468
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment; whether Medical Assessor (MA) erred by making a finding that appellant did not suffer an injury of industrial deafness; parties at a conciliation conference agreed the appellant had suffered such an injury; a member had made a direction with the consent of the parties to remit the matter to the President so a referral could be made to the MA to assess the degree of permanent impairment of the appellant from that injury; whether MA erred by not assessing the appellant’s degree of permanent impairment from an injury of industrial deafness; Held – the Medical Appeal Panel found MA made an error; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 4 June 2024 | Panel Members: Member Marshal Douglas, Dr Brian Williams, and Dr Thandavan Raj | Body system: Hearing Loss
Burwood City Council v Bruzzese [2024] NSWPICMP 469
Workplace Injury Management and Workers Compensation Act 1998; appeal from employer of whether Medical Assessor (MA) had failed to adequately consider extensive surveillance reports; whether further surveillance reports should be admitted as fresh evidence; whether MA had erred in the class rating assessed for each category of the psychiatric impairment rating scale (PIRS); Western Sydney Local Health District v Chan, Marina Pitsonis v Registrar of the Workers Compensation Commission, Ethnic Affairs v Wu, Bayside Council v Ware, and Bunnings Group Ltd v Davis; Held – application to admit fresh evidence refused; no explanation as to why it could not have been obtained prior to the medical assessment; no necessity for an MA to refer to every document; employer submissions speculative and irrelevant at times; observations on limits to MA’s jurisdiction regarding credit; Medical Assessment Certificate revoked to reduce employability and reduce entitlement of permanent impairment from 22% to 19%.
Decision date: 4 June 2024 | Panel Members: Member John Wynyard, Professor Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Ulacco v De Martin & Gasparini Pumping [2024] NSWPICMP 470
Appeal from assessment of whole person impairment (skin); whether Medical Assessor erred in assessing non-facial skin under the table for the evaluation of minor skin impairment (TEMSKI); whether class 2 impairment was warranted; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 4 June 2024 | Panel Members: Member Richard Perrignon, Dr Paul Curtin, and Dr Mark Burns | Body system: Face and Skin
Pollard v Toll Helicopters NSW [2024] NSWPICMP 466
Workplace Injury Management and Workers Compensation Act 1998; worker kicked in larynx during underwater training; consent orders in respect of assessment of nervous system (sleep and arousal disorder) respiratory disorder and ear, nose and throat (laryngeal disorder); referral to two Medical Assessors (MA) did not accurately reflect consent orders; first MA in time assessed sleep but said that worker’s breathing disorder was laryngeal dysfunction to be assessed by lead assessor (ear, nose, and throat surgeon); second MA assessed by reference to voice and deglutition; appeal only in respect of sleep and respiratory disorders; Skates v Hills Industries Ltd cited; American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed applied for assessment of nervous system and respiratory system; section 323 deduction; Held – Medical Assessment Certificate confirmed.
Decision date: 5 June 2024 | Panel Members: Member Catherine McDonald, Associate Professor Richard Haber, and Dr Gregory Kaufman | Body system: Nervous System, Respiratory Disorder, and Ear, Nose and Throat Related Functions
Kershaw v Spotless Services Australia Pty Ltd [2024] NSWPICMP 471
Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that the Medical Assessor erred in his application of section 323 and in his assessment of scarring; Held – error in application of section 323; no error as regards to scarring; Medical Assessment Certificate revoked.
Decision date: 5 June 2024 | Panel Members: Member Deborah Moore, Dr Todd Gothelf, and Dr Tommasino Mastroianni | Body system: Left Upper Extremity and Scarring
BSM v State of New South Wales (NSW Police Force) [2024] NSWPICMP 416
Workplace Injury Management and Workers Compensation Act 1998; appeal against medical assessment; psychological injury; provision of adequate reasons; procedural fairness; conclusions reached by Medical Assessor (MA) without adequate explanation; lack of procedural fairness afforded to appellant concerning inconsistencies; demonstrable errors identified; re-examination conducted confirming assessment of the psychiatric impairment rating scale provided by MA; Held – Medical Appeal Panel agree with the assessment of impairment in terms of the scales assessed by the MA; Medical Assessment Certificate confirmed.
Decision date: 27 June 2024 | Panel Members: Member Parnel McAdam, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Sydney Water Corporation v Slater; Slater v Sydney Water Corporation [2024] NSWPICMP 482
Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against decision of Medical Assessor (MA) in respect of error in including an assessment of the left shoulder when it was not part of the worker’s claim or the medical dispute; Skates v Hills Industries Ltd applied; appeal by the worker on the basis that the MA did not provide sufficient reasons for not using the strength model in the assessment of the left elbow and in his assessment of scarring; Held – Medical Appeal Panel accepted that the left shoulder had not been part of the claim and was not part of the dispute; assessment should be removed from the assessment of permanent impairment; Medical Appeal Panel concluded that there was no material error made in the assessment by the MA of the left elbow and scarring; Medical Assessment Certificate revoked.
Decision date: 18 July 2024 | Panel Members: Member Carolyn Rimmer, Dr Christopher Oates, and Dr Roger Pillemer | Body system: Left Upper Extremity and Scarring
New Horizons Enterprises Ltd v Lindsay [2024] NSWPICMP 483
Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against finding of 15% whole person impairment for psychological injury; Medical Assessor (MA) applied the provisions of section 323(2) in assessing that a 1/10th deduction was appropriate in circumstances of significant prior psychological treatment; whether MA considered Application to Admit Late Documents containing clinical notes; whether MA erred in finding a class 3 rating pursuant to the psychiatric impairment rating scale (PIRS) for social and recreational activities, class 2 for social functioning and class 3 for concentration persistence and pace; Wingfoot Australia Partners Pty Ltd v Kocak, Cottom v Scone Race Club Ltd, Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse Pty Ltd considered; Held – documentation in the Application to Admit Late Documents did no more than confirm the MA’s history regarding the worker's past psychological history; no error established regarding challenge to PIRS categories; Medical Assessment Certificate confirmed.
Decision date: 18 July 2024 | Panel Members: Member John Wynyard, Professor Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Songbird Homes Pty Ltd v Anderson [2024] NSWPICMP 484
Workplace Injury Management and Workers Compensation Act 1998; respondent suffered injury to her right upper extremity; appellant’s section 78 notice particularised the injury as including a superficial injury to the respondent’s shoulder and did not notify the respondent in its notice that there was any dispute about this; respondent relied on IME report which did not assess the respondent with any impairment relating to her right shoulder; the Medical Assessor (MA) assessed the respondent’s permanent impairment to include a component relating to the restricted range of movement in the right shoulder; whether the medical dispute that was referred to the MA required an assessment of impairment that the respondent had due to restricted range of movement of her right shoulder; Held – the Medical Appeal Panel held it did; Medical Assessment Certificate confirmed.
Decision date: 18 July 2024 | Panel Members: Member Marshal Douglas, Dr Christopher Oates, and Dr John Brian Stephenson | Body system: Right Upper Extremity and Scarring
Zrnic v Filippello & Anor [2024] NSWPICMP 485
Workplace Injury Management and Workers Compensation Act 1998; appeal against section 323 deductions regarding both shoulders; Medical Assessor (MA) stated applicant inconsistent; MA averaged the range of motion measurements over three examinations by different specialists, including his own, and made a deduction; respondent conceded error but argued Chapter 1.36 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, should apply instead; respondent did not cross-appeal and procedural fairness potentially denied; appellant had “no issue” with Medical Appeal Panel applying Chapter 1.36; Held – Medical Assessment Certificate amended and confirmed.
Decision date: 18 July 2024 | Panel Members: Member John Wynyard, Dr Doron Sher, and Dr Margaret Gibson | Body system: Cervical Spine, Right Upper Extremity, Left Upper Extremity, Upper Digestive System, and Lower Digestive System
Coastwide Civil Pty Ltd v Bleimuth [2024] NSWPICMP 486
Appeal from assessment of permanent impairment with respect to both knees; fresh evidence by way of a supplementary medical report; whether Medical Assessor erred in assessing ‘extension lag’ under Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition); whether the measured 120 degrees of flexion in respect of each knee compelled a nil assessment of permanent impairment; Held – Medical Assessment Certificate revoked and replaced.
Decision date: 19 July 2024 | Panel Members: Member Richard Perrignon, Dr Doron Sher, and Dr Gregory McGroder | Body system: Right Lower Extremity, Left Lower Extremity, Lumbar Spine, and Scarring
Appeal by employer against psychological injury assessment; whether adequate reasons given for three psychiatric impairment rating scale categories; Wingfoot Australia Partners Pty Ltd v Kocak and El Masri v Woolworths Ltdapplied; Held – reasons so sparse that path of reasoning is not clear; reasons not detailed enough for Medical Appeal Panel to see whether error made or not; worker re-examined; Medical Assessment Certificate revoked.
Decision date: 23 July 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
Albee v State of New South Wales (NSW Police Force) [2024] NSWPICMP 490
Appellant submitted that the Medical Assessor (MA) erred in respect of his assessments with respect to three of the psychiatric impairment rating scale (PIRS) categories, namely social and recreational activities, travel and employability; Held – no error by MA; Medical Assessment Certificate (MAC) was thorough and detailed; MA clearly explained his path of reasoning in respect of all the PIRS categories; MAC confirmed.
Decision date: 24 July 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Icho v Allianz Australia Insurance Limited [2024] NSWPICMR 8
Motor Accident Injuries Act 2017; whether statutory benefits payable under Division 3.3; insurer asserted that any loss of earnings from the date of commencement of planned maternity leave is not due to the motor accident; allegation that the claimant intended to return to work before the 12 months of unpaid leave provided by her employer; assertion that she would have returned to work following cessation of Centrelink Parental Leave Pay; Held – claimant would in all likelihood have returned to before 12 months largely due to financial necessity; claimant’s financial situation became tenuous at the cessation of Centrelink parental pay and that such situation would have occurred regardless of the occurrence of the motor accident and therefore she would have returned to work; claimant entitled to weekly payments of statutory benefits.
Decision date: 9 May 2024 | Merit Reviewer: Elizabeth Medland
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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