Legal Bulletin No. 174
This bulletin was issued on 16 August 2024
Issued 16 August 2024
Welcome to the one hundred and seventy fourth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Presidential Member Decisions
Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPICPD 42
Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; time in which to bring an appeal; State of New South Wales v Simms [2015] NSWWCCPD 62; Division 2 of Part 4 of the Workers Compensation Regulation 2016; regulations 8B, 8C and 8E; application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59, the duty to give reasons; Held – the Certificate of Determination dated 20 March 2023 is rescinded; the matter is remitted for redetermination by a different member, consistent with these reasons.
Decision date: 2 August 2024 | Before: Deputy President Michael Snell
Classic Carpentry Services Pty Ltd v Tideswell [2024] NSWPICPD 43
Leave to appeal; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; whether worker sustained injury to the cervical spine; Member’s consideration of
medical reports; procedural fairness; adequacy of reasons; Held – leave granted to pursue the appeal; appeal dismissed; the Member’s Certificate of Determination dated 21 September 2023 is confirmed.
Decision date: 5 August 2024 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Hardy v Motor Accidents Insurance Board [2024] NSWPIC 354
Motor Accident Injuries Act 2017 (MAI Act); application for exemption by insurer; application opposed by claimant; where insurer has alleged contributory negligence and that claimant has made false and misleading statements; Allianz Australia Insurance Limited v Tarabay, Insurance Australia Limited t/as NRMA Insurance v Banos, Insurance Australia Limited t/as NRMA Insurance Limited v Milton, Insurance Australia Limited t/as NRMA v Taylor, IAG Ltd t/as NRMA Insurance v Abiad, IAG Limited t/as NRMA Insurance v Khaled & Ors and IAG Ltd t/as NRMA v Qianxia Lou applied; Held – the insurer’s allegations should be tested under oath in a forum in which the Evidence Act 1995 applies; a court hearing is the mode of hearing that will resolve the dispute more efficiently and effectively; 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: 4 July 2024 | Senior Member: Brett Williams
Insurance Australia Limited t/as NRMA Insurance v Mwangi [2024] NSWPIC 410
Motor Accident Injuries Act 2017 (MAI Act); settlement approval; section 6.23; claim for damages for past and future economic loss; claimant sustained a right midshaft humerus fracture, assessed at 1% whole person impairment; contributory negligence assessed by insurer at 35%; whether a buffer allowance for future economic loss is appropriate in the circumstances; Held – proposed settlement approved; deduction under 3.40(1)(b) of the MAI Act calculated accordingly to be made by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3 of the MAI Act.
Decision date: 25 July 2024 | Member: Maurice Castagnet
Sisounon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 412
Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under 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 soft tissue injuries to her cervical spine, head, lumbar spine and right shoulder resulting in an assessment of whole person impairment at 7%; claimant was previously injured in a workplace accident in 2013 and as a consequence was partially disabled for paid employment; since 2016 claimant had been involved in voluntary work but intended to obtain some form of paid employment despite her partial incapacity for work; insurer disputed her intention to seek paid employment post-resolution of her workers compensation claim; claimant qualified for cleaning work and some basic office work; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss.
Decision date: 1 August 2024 | Member: David Ford
Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 418
Motor Accident Injuries Act 2017; insurer’s decision about 50% contributory negligence and reduction of claimant’s statutory benefits under section 3.38; claimant was picking her children up for school; she had put the children in the car and the bags in the boot; she walked around the back of the car and down the side of her vehicle when she was struck by the wing mirror of the insured motor vehicle; narrow road with many pedestrians due to time of day; evidence including dashcam and expert supported a finding that the insured was driving at 30 km/h; claimant did not look before moving around her vehicle; claimant’s intention’s clear to driver for one second; insured vehicle visible to claimant for 2.8 seconds; insurer admitted fault on the part of insured driver for driving too fast and failing to brake soon enough; Held – both claimant and insured driver equally responsible; claimant’s statutory benefits to be reduced by 50% on account of her contributory negligence; no matter of principle.
Decision date: 5 August 2024 | Member: Belinda Cassidy
AAI Limited t/as GIO v Costello [2024] NSWPIC 419
Settlement approval; damages; no entitlement to non-economic loss; loss of business opportunities; impaired earning capacity; variable future earnings; calculations of weekly profit; international opal market; Held – proposed settlement approved.
Decision date: 6 August 2024 | Member: Hugh Macken
Workers Compensation non-Presidential Member Decisions
Elmi-Anvari v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 389
Determination of whole person impairment (WPI) by member without referral to a Medical Assessor (MA); whether the application should be referred to an MA for determination of the WPI of the applicant; Held – award for the applicant in respect of 24% WPI; reasons for exercise of discretion explained.
Decision date: 22 July 2024 | Member: Lea Drake
Kendall v Woollahra Municipal Council [2024] NSWPIC 411
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; applicant wishes to accept the degree of permanent impairment assessed by respondent’s Independent Medical Examiner (IME) which is less than his claim; respondent seeks referral to Medical Assessor (MA); applicant seeks for the Commission to make a determination of the degree of permanent impairment in the same amount as the percentage found by the respondent’s IME; parties agree that following the repeal of section 65(3) the Commission has the power to determine the applicant’s permanent impairment without referral to an MA but disagree whether the Commission should exercise this power; Held – in the circumstances, the degree of permanent impairment is determined without referral to an MA; respondent to pay the applicant for lump sum compensation.
Decision date: 31 July 2024 | Principal Member: Josephine Bamber
Riley v Deebel Group Pty Ltd [2024] NSWPIC 414
Workers Compensation Act 1987; claim for loss of artificial aid pursuant to section 74; applicant fell from a ladder and suffered fractures to his arm requiring emergency surgery; he was conveyed by ambulance to hospital, and before undergoing surgery was requested to remove his dentures to prevent a choking hazard; the dentures were then either lost or inadvertently destroyed by the hospital staff; respondent denied liability for the cost of replacing the dentures, alleging they were not lost in the accident which befell the applicant, and that on a commonsense evaluation of the causal chain, the loss did not occur “as a result of” the accident; Held – no requirement that the loss of or damage to an artificial aid must occur in the course of the accident which befalls a worker; loss need only be “as a result of” the accident; the loss of the applicant’s dentures was as a result of the accident which befell him in the course of his employment; the respondent is to pay the costs of and incidental to the replacement of the applicant’s dentures.
Decision date: 1 August 2024 | Member: Cameron Burge
Rees v BOC Ltd [2024] NSWPIC 415
Applicant was employed by the respondent in their gas and bottling factory; allegation made that he was bullied and harassed over the course of his lengthy employment; he also sustained physical injuries in the course of his employment; claim for whole person impairment for a primary psychological injury; factual allegations disputed by the respondent; Attorney General v K applied; applicant’s perception was based upon real events in the workplace; respondent provided no medical support for any alternative argument on causation; Held – finding in favour of the applicant.
Decision date: 1 August 2024 | Senior Member: Elizabeth Beilby
Rose v Secretary, Department of Communities and Justice [2024] NSWPIC 416
Permanent impairment compensation; whether applicant suffered cervical spine injury in addition to accepted lumbar spine injury and consequential obstructive sleep apnoea; applicant slipped on a set of stairs and landed heavily on his buttocks; no issue he suffered a lumbar spine injury in the fall, or that he developed a consequential respiratory condition in the nature of obstructive sleep apnoea; applicant also claims he suffered an injury to his cervical spine in the fall; respondent disputes injury to cervical spine, noting the applicant made no complaint of neck symptoms for some 18 months post-injury; Federal Broom Co Pty Ltd v Semlitch and Kelly v Western Sydney Institute NSW TAFE Commission applied; Held – the relevant inquiry in cases of alleged injury by way of aggravation is whether the injurious event was the main contributing factor to the aggravation, not to the underlying pathology; the applicant suffered an injury in the nature of an aggravation of pre-existing pathology in his cervical spine in the fall at issue; the fall at work was the main contributing factor to the aggravation of the applicant’s neck.
Decision date: 1 August 2024 | Member: Cameron Burge
Anderson v Sydney Trains [2024] NSWPIC 417
Workers Compensation Act 1987; whether there was a real and substantial connection between employment and the accident or incident due to the applicant carrying a backpack with textbooks; Held – while there was an association between the employment and the accident or incident, it was not sufficiently real and substantial to satisfy section 10(3A) in this case; award for the respondent.
Decision date: 2 August 2024 | Member: Fiona Seaton
Moody v Evolution Traffic Control Pty Ltd [2024] NSWPIC 420
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted left shoulder injury and consequential scarring; whether consequential right shoulder condition due to compensatory overuse; degenerative pathology in both shoulders; whether onset of symptoms causally related to injury; Held – the opinions expressed by the applicant’s medical experts were more consistent with the treating evidence; applicant’s onus discharged; matter remitted to President for referral to a Medical Assessor to assess permanent impairment of both shoulders and skin.
Decision date: 6 August 2024 | Member: Rachel Homan
Gardyne v Med-X Pty Ltd [2024] NSWPIC 421
Workers Compensation Act 1987; section 4; whether applicant suffered injury in the form of adult onset asthma and vocal cord dysfunction due to exposure to bushfire smoke in the course of employment; claim for medical and treatment expenses; Kooragang Cement Pty Ltd v Bates, AV v AW and Murphy v Allity Management Services Pty Ltd considered and applied; Held – applicant has sustained injury in the form of vocal cord dysfunction and adult onset asthma as a result of exposure to smoke from bushfires in the course of his employment with the respondent; respondent to pay the applicant’s reasonably necessary medical and related expenses as a result of injury.
Decision date: 6 August 2024 | Member: John Turner
Motor Accidents Medical Review Panel Decisions
QBE Insurance (Australia) Limited v Steele [2024] NSWPICMP 467
Threshold injury; psychiatric injury; whether alcohol use disorder and post-traumatic stress disorder were injuries caused by the motor accident; whether injuries caused by motor accident are threshold injuries; Held – alcohol disorder not caused by accident; post-traumatic stress disorder caused by accident and constitutes a non-threshold injury; Medical Assessment Certificate revoked.
Decision date: 24 May 2024 | Panel Members: Member Bridie Nolan, Dr Wayne Mason, and Dr Samson Roberts | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Nguyen [2024] NSWPICMP 528
Motor Accident Injuries Act 2017; threshold injury dispute for motor accident in March 2022; car was reversing and collided with pushbike ridden by claimant; delayed recorded complaint of left shoulder pain of ten days not significant; initial ultrasound stated that tear may be present; subsequent scan showed tear; no pre-accident left shoulder complaints; fall from bike capable of causing tear; video showing claimant riding away following accident not inconsistent with tear; Held – the motor accident caused an intrasubstance tear of the left shoulder; non-threshold injury confirmed; Medical Assessment Certificate confirmed.
Decision date: 1 August 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Leslie Barnsley | Injury module: Spine and Upper Limb
Hartman v QBE Insurance (Australia) Limited [2024] NSWPICMP 534
Motor Accident Injuries Act 2017; whole person impairment (WPI); claimant alleged injuries to neck, back and head; Medical Assessor found no evidence of a head injury based on continued headaches and brain MRI; claimant relied on opinion of Dr Abraszko; insurer said Dr Abraszko is not an authorised health practitioner and her evidence is not admissible; President’s delegate had determined evidence of Dr Abraszko not allowed; claimant re-examined; Medical Review Panel (the Panel) accepted forces involved in the collision could have caused injury to head, neck, lower back; claimant did sustain injury to head, neck and lower back; claimant had laminectomy but not fusion which the Panel did not accept was related to the accident but to the claimant’s underlying degenerative lower back disease; head injury did not result in assessable brain injury impairment; no evidence of current impairment due to occipital nerve injury and no impairment assessable; headaches had been thoroughly investigated and due to whiplash neck injury, which cannot be assessed separately; Held – Medical Assessment Certificate confirmed.
Decision date: 2 August 2024 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Adeline Hodgkinson | Injury module: Spine and Brain Injury
AAI Limited t/as GIO v Ghabach [2024] NSWPICMP 535
Motor Accident Injuries Act 2017; claimant’s vehicle was rear-ended by insured vehicle; where issues in dispute were threshold injuries and permanent impairment; whole person impairment (WPI); re-examination of claimant; Held – injury to the cervical spine and injury to left shoulder were both threshold injuries; cervical spine injury assessed at 5% WPI and left shoulder injury assessed at 5% WPI, for a total of 10% WPI; Medical Assessment Certificate revoked.
Decision date: 2 August 2024 | Panel Members: Member Maurice Castagnet, Dr Shane Moloney, and Dr Mohammed Assem | Injury module: Spine and Upper Limb
Keriakos v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 538
Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of both a threshold injury decision and a whole person impairment (WPI) assessment; claimant working in shop when car crashed through the front of the building; claimant said she developed a psychological injury as a result; claimant disclosed previous physical problems and previous episodes of depression; claimant did not have medical attention for psychological symptoms for a year after the accident; insurer disputed causation; Held – claimant could have and did sustain a psychological injury aggravating a previous condition; claimant had an aggravation of persistent depressive disorder which is a non-threshold injury; AAI Limited v Hoblos and Todev v AAI Limited t/as GIO followed; WPI due to car accident not greater than 10%; Medical Assessment Certificate revoked.
Decision date: 5 August 2024 | Panel Members: Member Belinda Cassidy, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
Al-Shaya v AAI Limited t/as AAMI [2024] NSWPICMP 539
Motor Accident Injuries Act 2017; medical dispute; whether the physical injuries sustained were all threshold injuries; the Medical Review Panel conducted an examination and considered the factors contributing to the injury; claimant was diagnosed with an injury to the lumbar spine that was causally related to the accident and was not a threshold injury; Held – Medical Assessment Certificate revoked.
Decision date: 5 August 2024 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Leslie Barnsley | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Kulakovski v Canterbury Bankstown Council [2024] NSWPICMP 527
Workplace Injury Management and Workers Compensation Act 1998; appeal against 7% whole person impairment for industrial deafness; whether Medical Assessor (MA) erred in applying section 323, whether MA failed to give adequate reasons; section 323(2) and (3) considered; Chapter 9.4 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed
1 March 2021 considered and applied; observations as to inappropriateness of template in this field of medical science and consequent need for care by MAs; inconsistency in calculation noted and conceded by employer; Held – section 323 not applicable; Medical Assessment Certificate revoked and 11% WPI substituted.
Decision date: 31 July 2024 | Panel Members: Member John Wynyard, Dr Robert Payten, and Dr Brian Williams
Appeal against various psychiatric impairment rating scale (PIRS) categories filed by both parties; Medical Appeal Panel confirmed the Medical Assessor’s (MA) assessments in all categories; MA made an adjustment for the effects of treatment; Held – MA erred in making an adjustment for the effects of treatment; Medical Assessment Certificate revoked.
Decision date: 1 August 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Dewar v Universal Group Messengers Pty Ltd [2024] NSWPICMP 531
Whether Medical Assessor (MA) applied correct methodology to assess the degree of permanent impairment the appellant had from an injury to his knee; whether MA should have used the method of gait derangement; Held – MA used the correct methodology to assess appellant’s permanent impairment, and explained his reasons for using the methodology; Medical Assessment Certificate confirmed.
Decision date: 1 August 2024 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Andrew Porteous | Body system: Right Lower Extremity
Metal Manufacturers Ltd v Bell [2024] NSWPICMP 532
Workplace Injury Management and Workers Compensation Act 1998; assessment of left and right shoulders and scarring; Medical Assessor assessed worker’s elbow and neurological consequences of pain syndrome which were not the subject of a medical dispute or claim; Skates v Hills Industries Ltd; Held – Medical assessment Certificate revoked.
Decision date: 1 August 2024 | Panel Members: Member Catherine McDonald, Dr Andrew Porteous, and Dr John Brian Stephenson | Body system: Left Upper Extremity, Right Upper Extremity, and Scarring
Uniting (NSW ACT) v Bradbury-Walsh [2024] NSWPICMP 536
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 March 2021, paragraph 1.32; allowance for the effects of treatment; Medical Assessor made allowance without providing reasons; Zoric v Secretary, Department of Education; Held – Medical Assessment Certificate revoked.
Decision date: 2 August 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Lazarus v Connor Clothing Pty Ltd [2024] NSWPICMP 537
Appeal from assessment of whole person impairment (WPI); psychological injury; whether Medical Assessor (MA) erred when assessing WPI under the psychiatric impairment rating scale (PIRS) in terms of social functioning and employability; whether MA erred by failing to give reasons for deduction; Held – Medical Assessment Certificate revoked.
Decision date: 2 August 2024 | Panel Members: Member Richard Perrignon, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Donnelly v Secretary, Department of Customer Service [2024] NSWPICMP 540
Psychological injury; appellant worker; alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories; inadequate path of reasoning; Held – error found; re-examination was considered necessary; Medical Assessment Certificate revoked.
Decision date: 6 August 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Schueppenhauer v Forgacs Engineering Pty Ltd [2024] NSWPICMP 541
Whether Medical Assessor (MA) erred in failing to make an assessment in accordance with the terms of the referral; appellant was to undergo further treatment; MA assessed percentage of whole person impairment when he was asked only to determine if maximum medical improvement had been reached; Held – Medical Assessment Certificate revoked.
Decision date: 6 August 2024 | Panel Members: Member Deborah Moore, Dr James Bodel, and Dr Gregory McGroder | Body system: Lumbar Spine
Dib v Sydney Tools Pty Ltd [2024] NSWPICMP 542
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker challenges assessments of the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social and recreational activities, and social functioning; Held – demonstrable error in assessment of self-care and personal hygiene only; Medical Assessment Certificate revoked.
Decision date: 6 August 2024 | Panel Members: Member John Isaksen, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Panel Decision
Dinkha v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMRP 3
Motor Accident Injuries Act 2017; amount of statutory benefits payable under Division 3.3; consideration of Schedule 1, clause 3(2)(a) and (c) and the expression income “received”; claimant worked during relevant 12-month period but did not receive payment for that work; Held – claimant “received” as payment for his personal exertion $1,000 a week for two continuous weeks in the twelve-month period prior to the accident; while he was paid his earnings following the expiry the relevant twelve-month period, he “received” this payment in exchange for his personal exertion within the relevant 12-month period; the amount of statutory benefits payable is $1,000 a week.
Decision date: 2 April 2024 | Merit Review Panel: Bridie Nolan, Anthony Scarcella, and Shana Radnan
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.
Subscribeto receive legal bulletins to your inbox.