Legal Bulletin No. 175
This bulletin was issued on 23 August 2024
Issued 23 August 2024
Welcome to the one hundred and seventy fifth 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
CSR Building Products Limited v Delaney [2024] NSWPICPD 44
Whether the Member failed to address the appellant’s submissions; adequacy of reasons; Roncevich v Repatriation Commission [2005] HCA 40 applied; whether the medical opinion expressed was produced in a “fair climate” Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied; certification by legal practitioner that there are reasonable prospects of success; Held – the Certificate of Determination dated 31 July 2023 is confirmed.
Decision date: 9 August 2024 | Before: Deputy President Elizabeth Wood
Proops v MSS Security Pty Limited [2024] NSWPICPD 45
Section 4 of the Workers Compensation Act 1987; whether worker sustained injury to his cervical spine in addition to injuring both upper extremities when he slipped and fell on wet decking;
assessment of statement and medical evidence; medical expenses pursuant to section 60 of
the Workers Compensation Act 1987; Held – appeal allowed; Certificate of Determination dated 2 August 2023 is revoked; award for the appellant in respect of the claim for injury to the cervical spine; the respondent is to pay the appellant’s expenses pursuant to s 60 of the Workers Compensation Act 1987; the matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and scarring arising out of the injury on 5 May 2015.
Decision date: 9 August 2024 | Before: Deputy President Geoffrey Parker SC
Myrvang v Australian Turf Club Limited [2024] NSWPICPD 46
Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998, application of Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138 and related authorities; weight to be given to medical certificates in the absence of a report to explain them: DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22; Held – the Certificate of Determination dated 22 August 2023 is confirmed.
Decision date: 13 August 2024 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Smith v AAI Limited t/as AAMI [2024] NSWPIC 372
Motor Accident Injuries Act 2017 (MAI Act); section 7.34(1)(b); rule 99(3)(d) of the Personal Injury Commission Rules 2021; recommendation that claim is not suitable for assessment; claimant injured in a motor vehicle accident admitted to two hospitals for treatment, subsequently suffered a serious wound infection requiring surgeries; claimant has alleged medical negligence on the part of the medical staff at the said hospitals which caused him to develop further injuries; claimant has now commenced a medical negligence claim against the hospitals in the District Court; claimant submits the matter be exempted in the interests of justice in order for both claims to be determined concurrently in the jurisdiction of the District Court; whether matter should be exempted on discretionary grounds; Held – matter be exempted on the grounds a claimant or insurer seeks to proceed against one or more non-CTP parties; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 4 July 2024 | Member: David Ford
BLI v Allianz Australia Insurance Limited [2024] NSWPIC 436
Motor Accident Injuries Act 2017; whether painting services are “treatment and care” within the meaning of section 1.4(1); claimant’s injuries include torn rotator cuff; claimant asked insurer to fund painting the exterior of his weatherboard home on the basis he was going to paint it himself but could not because of his injuries; claimant submitted painting was attendant care services as it would assist him with everyday tasks and was a form of home maintenance and therefore treatment; insurer refused; Held – house painting can in circumstances be home maintenance; the claimant was going to paint his home in the summer of 2023/2024; painting the exterior of the claimant’s home is not an everyday task as he was taking three weeks off work to do it; there was a large amount of work to be done; in the 15 years since the claimant owned the house, the whole house had never been painted before; in the circumstances painting is not treatment and care; matter registered as a medical assessment matter; Member had no power to dismiss or otherwise finally determine the proceedings and the proceedings were referred back to the Commission for further consideration.
Decision date: 1 August 2024 | Member: Belinda Cassidy
McMillan v Youi Pty Limited [2024] NSWPIC 422
Motor Accident Injuries Act 2017 (MAI Act); claimant was involved in a motor vehicle accident on 2 November 2023; claimant sought payment of statutory benefits following the accident but did not lodge this claim until 5 March 2024; by making this late claim, claimant had not complied with section 6.13 of the MAI Act; claimant provided a full and satisfactory explanation for the delay which the insurer accepted; the insurer declined to make payments from the date of the accident to the date the claim was made on 5 March 2024; the claimant sought a review of this decision; Held – the insurer does not have to make any statutory benefit payment from the time of the accident on 2 November 2023 to 5 March 2024; the provisions of regulation 8A of the Motor Accident Injuries Regulations provides no discretion for payment of statutory benefits from the date of the accident to the date claim is made when such claim is made out of time.
Decision date: 6 August 2024 | Member: Alexander Bolton
Green v QBE Insurance (Australia) Limited [2024] NSWPIC 423
Motor Accident Injuries Act 2017; insurer denied liability for ongoing statutory benefits pursuant to sections 3.11 and 3.28 on the basis that the claimant was wholly or mostly at fault; claimant riding motor scooter before dawn on approach to the Harbour Bridge when he collided with the unmarked end of a median strip as he changed lanes; police investigations revealed a length of the median strip had been removed as part of roadworks allowing motorists to change lanes and that after the accident steps were taken to alert motorists to the median strip and prevent motorists from changing lanes; photographs showed debris in front of the exposed end of the median strip at the time of the accident and some white paint on the median strip; claimant provided statement not challenged by insurer; claimant riding in the dark at 40 km/h with his headlights on and said he could not see the end of the median strip; insurer argued accident caused solely by the fault of the claimant losing control of his motor scooter as he collided with the median strip; assessment of wholly at fault in a single vehicle accident considered; causation considered in terms of concurrent and interdependent causes; Nominal Defendant v Hawkins and Hossain v Mirdha referred to; Held – primary cause of accident was the state of the roadway in particular the unmarked median strip; claimant not wholly at fault; no submissions from insurer on contributory negligence; Member not satisfied there was any contributory negligence.
Decision date: 7 August 2024 | Member: Belinda Cassidy
AAI Limited t/as GIO v Vidler [2024] NSWPIC 430
Motor Accident Injuries Act 2017; settlement approval; claimant self-represented retired male injured in a motorbike accident; claimant suffered significant laceration injuries to the lower limbs; claimant underwent left knee reconstruction surgery as a result of injuries; claimant suffered scarring; insurer conceded non-economic loss threshold; claimant can no longer maintain his lawns, cannot drive motorbikes due to fear avoidance and pain; pain with exercise; Held – settlement approved.
Decision date: 12 August 2024 | Member: Elizabeth Medland
Workers Compensation non-Presidential Member Decisions
Workers Compensation Act 1987; application to set aside section 145 notice issued by first respondent or alternatively for an order that the amount sought from the applicant was not recoverable; applicant placed under external administration after proceedings commenced; Held – proceedings dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.
Decision date: 29 July 2024 | Member: Fiona Seaton
Workers Compensation Act 1987; claim for proposed surgery costs; whether applicant sustained de Quervain’s tenosynovitis in addition to accepted left wrist arthritis condition; Held – the applicant sustained an aggravation of de Quervain’s tenosynovitis in addition to the accepted left wrist injury with employment the main contributing factor; proposed surgery reasonably necessary; the respondent to pay the costs of and incidental to the proposed surgery at gazetted rates.
Decision date: 7 August 2024 | Member: Fiona Seaton
Owen v State of New South Wales (South Western Sydney Local Health District) [2024] NSWPIC 425
Workers Compensation Act 1987; claim for weekly compensation for psychological injury; section 11A defence; whether respondent’s actions were reasonable; capacity; Held – respondent had not discharged its onus; respondent had not acted reasonably; award for applicant.
Decision date: 7 August 2024 | Member: Michael Wright
Sinclair v Linfox Armaguard Pty Ltd [2024] NSWPIC 426
Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses for injury to the right shoulder and neck in 1996; dispute as to the extent of the worker’s incapacity; Wollongong Nursing Home Pty Ltd v Dewar, Popal v Myer Holdings Pty Ltd and Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer referred to;whether any incapacity is as a result of a secondary psychological injury; calculation of weekly payments to be awarded to the worker; Held – worker has suffered a secondary psychological injury but lack of evidence to determine that this consequential condition impacts on the worker’s incapacity; worker has had no current work capacity as a result of the injury to his right shoulder and neck since his position was made redundant by the respondent; award of weekly payments of compensation pursuant to sections 37 and 38, and for reasonably necessary medical expenses, including a secondary psychological injury.
Decision date: 8 August 2024 | Member: John Isaksen
White v DM Ifield & L.B Ifield [2024] NSWPIC 427
Medical expenses claim; applicant suffered accepted injury and seeks an order the respondent pay costs of, and incidental to, radio frequency and PRP injections to lumbar spine; respondent argues the treatment is not reasonably necessary on two bases, namely, the proposed treatment will treat the applicant’s underlying pathology rather than the aggravation to it caused by the injury, and the proposed treatment is premature and should only be undertaken after the applicant has had pain management treatment; Held – the proposed treatment is reasonably necessary as a result of the injury; the respondent is ordered to pay the costs of, and incidental to, it.
Decision date: 8 August 2024 | Member: Cameron Burge
Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank [2024] NSWPIC 429
Worker Compensation Act 1987; psychological injury; series of events; aggravation of a disease; sections 4(b)(ii) and 66; claim for permanent impairment compensation; assessment of the reliability of evidence; Federal Broom Co Pty Ltd v Semlitch, AV v AW and Attorney General’s Department v K considered and applied; Held – disease injury found pursuant to section 4(b)(ii); matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment claim.
Decision date: 9 August 2024 | Member: Kathryn Camp
Sarkiss v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 432
Workplace Injury Management and Workers Compensation Act 1998; accepted injuries to the cervical and lumbar spine, left shoulder, right elbow and left knee; whether the right elbow and left knee injuries/impairments meet the definition of medical dispute in section 319; whether a medical opinion expressing ‘no rateable impairment’ can be referred to a Medical Assessor; Sharma v Woolworths, Shankar v Ceva Logistics (Australia) Pty Limited and Klement v Bull N’ Bush Nurseries Pty Ltd discussed; Held – a medical dispute exists with respect to the left knee and right elbow and the assessment of no rateable impairment is equivalent to a 0% whole person impairment (WPI) capable of referral to a Medical Assessor; matter to be referred to a Medical Assessor for assessment of the WPI dispute with respect to the cervical and lumbar spine, left shoulder, left knee and right elbow.
Decision date: 13 August 2024 | Member: Diana Benk
Newitt v Combined Roofing Australia Pty Ltd [2024] NSWPIC 433
Applicant claimed an incident at home in 2021 was an aggravation to a previous workplace injury sustained in 2018; causation; Held – the incident in 2021 and consequent incapacity was not causally related to the injury sustained in 2018.
Decision date: 13 August 2024 | Member: Lea Drake
Westbrook v Batemans Bay Cool-it Pty Ltd [2024] NSWPIC 434
Claim for cost of proposed radiofrequency neurotomy and trial of medicinal cannabis; Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd considered; Held – award for the applicant for the cost of proposed radiofrequency neurotomy and trial of medicinal cannabis.
Decision date: 13 August 2024 | Senior Member: Kerry Haddock
Brown v Secretary, Department of Education [2024] NSWPIC 435
Applicant suffered a psychological injury as a result of the death of a child at her workplace and her consequent workplace obligations; applicant was further injured as a result of undertaking comparable duties following the death of a work colleague; Held – award for weekly payments of compensation to the applicant.
Decision date: 13 August 2024 | Member: Lea Drake
Motor Accidents Medical Review Panel Decisions
AAI Limited t/as GIO v Hawach (No 2) [2024] NSWPICMP 565
Application to reopen matter; Minister for Immigration and Multicultural Affairs v Bhardwaj; procedural fairness; whether Medical Review Panel’s decision was infected by jurisdictional error; claimant claimed to have requested an interpreter for his medical assessment; where evidence for requesting an interpreter is unsubstantiated by claimant and denied by the assessing Medical Assessor; Held – jurisdictional error not found; matter not reopened.
Decision date: 22 July 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Geoffrey Stubbs
Insurance Australia Limited t/as NRMA Insurance v Hines [2024] NSWPICMP 494
Motor Accidents Injuries Act 2017; Schedule 2, clause 2(b); medical dispute; treatment and care; reasonable and necessary; related to motor vehicle accident; total left knee replacement; pre-existing osteoarthritis bilaterally; treated conservatively pre-accident; post-accident unresolved symptomology and debilitating pain; Held – aggravation of pre-existing osteoarthritis caused by accident occasioning need for total knee replacement; treatment reasonable and necessary in the circumstances.
Decision date: 22 July 2024 | Panel Members: Member Bridie Nolan, Dr Sophia Lahz, and Dr Clive Kenna | Treatment Type: Surgery
Insurance Australia Limited t/as NRMA Insurance v Rossell [2024] NSWPICMP 529
Medical dispute; degree of permanent impairment of the injured person as a result of the injury caused by the accident; whether those injuries are greater than 10%; claimant claimed to have sustained injuries in a motor vehicle accident to her cervical spine, lumbar spine and right shoulder; Held – Medical Assessment Certificate revoked; claimant suffered an injury to her neck and right shoulder following the motor accident but no injury to lumbar spine; permanent impairment 15%.
Decision date: 1 August 2024 | Panel Members: Member Bridie Nolan, Dr Geoffrey Stubbs, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
QBE Insurance (Australia) Limited v Orehovec [2024] NSWPICMP 544
Motor Accident Injuries Act 2017; insurer’s application for review; threshold injuries; claimant alleged he developed anxiety, depression and post-traumatic stress disorder as a result of the accident; claim form had physical injuries listed and “psychological injuries”; first documented complaint of psychological issues requiring treatment recorded in GP’s records three years after the accident; claimant had previous history of lumbar spine issues (including surgery), bladder cancer and thyroid cancer; claimant’s cancer recurred after accident and claimant had a kidney and his bladder removed; claimant now has a stoma and continues to receive immunotherapy treatment; Held –the accident could have caused a psychological injury but did not; gap of three years could not be adequately explained; claimant’s significant other conditions the cause of his current depression; Medical Assessment Certificate revoked.
Decision date: 7 August 2024 | Panel Members: Member Belinda Cassidy, Dr Christopher Rikard-Bell, and Dr Doron Samuell | Injury module: Mental and Behavioural
Clifford v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 545
Motor Accidents Injuries Act 2017; claimant suffered psychological injury as a result of the death of his wife in a motor accident; claimant witnessed the death at the scene of the accident; on re-examination the Review Panel assessed a higher whole person impairment; whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%; Held – Medical Assessment Certificate revoked; the post-traumatic stress disorder caused by the motor accident is not greater than 10%.
Decision date: 7 August 2024 | Panel Members: Member Maurice Castagnet, Dr John Baker, and Dr Melissa Barrett | Injury module: Mental and Behavioural
Allianz Australia Insurance Limited v Yadko [2024] NSWPICMP 549
Motor Vehicle Injuries Act 2017; medical dispute; whether the physical injuries sustained, were all threshold injuries; claimant re-examined; consideration of claimant’s history, the clinical findings on examination, the radiological imaging and the factors contributing to the injury in order to determine the issue of causation; 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: 8 August 2024 | Panel Members: Member Terence Stern OAM, Dr Geoffrey Stubbs, and Dr Leslie Barnsley | Injury module: Spine and Upper Limb
Singh v QBE Insurance (Australia) Limited [2024] NSWPICMP 555
Motor Accident Injuries Act 2017; whether the injuries caused by the motor accident give rise to a permanent impairment greater than 10%; whether MRI to the cervical spine and right shoulder relates to the injury caused by the motor accident; whether the treatment is reasonable and necessary in the circumstances; claimant a passenger involved in a T-Bone collision with a truck; Medical Review Panel assessed injuries to the cervical spine, lumbar spine, right shoulder, left knee, right wrist; no radiculopathy found; previous right shoulder injury, inconsistencies meant that assessment of right shoulder impairment via measurement not appropriate, analogy adopted; Medical Assessor found a 7% permanent impairment and the treatment request to be related to the injury caused by the motor accident but not reasonable and necessary; Held – Medical Assessment Certificate revoked; requests for MRI are related to the injury caused by the motor accident but are not reasonable and necessary in the circumstances; 6% permanent impairment.
Decision date: 9 August 2024 | Panel Members: Member Elizabeth Medland, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb | Treatment Type: Radiological Investigations
Kearns v Allianz Australia Insurance Limited [2024] NSWPICMP 559
Motor Accident Injuries Act 2017; claimant’s application for review of decision from Medical Assessor (MA) that three level cervical spine surgery was not related to injuries sustained in accident and not reasonable and necessary in the circumstances; claimant gave history of no previous neck or back symptoms before the accident however MA said there was evidence of imaging reports and facet joint injections in 2014; neither party had put any 2014 imaging or imaging reports before the MA; Medical Review Panel sought copies of medical records from 5-10 years before the accident; insurer obtained records which indicated symptoms of neck pain reported to GPs in 2014, 2015, and 2018; there were referrals for radiology but no reports on file and no specialist or allied health referrals or reports; claimant continued to work; claimant reported symptoms of neck pain immediately after the accident which failed to improve; a month after the accident claimant referred to neurosurgeon who advised surgery; insurer refused and claimant had physiotherapy, pain management and medication; neurosurgeon repeated request for surgery in 2022; claimant examined by audio-visual means for purpose of a history; Medical Review Panel determined no need for physical examination; post-accident radiology revealed severe canal stenosis and degenerative changes; Diab v NRMA cited with approval; AAI Limited t/as AAMI v Phillips followed; Held – accident caused significant aggravation of underlying degenerative condition which has continued; surgery is reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.
Decision date: 12 August 2024 | Panel Members: Member Belinda Cassidy, Dr David Gorman, and Dr Geoffrey Stubbs | Treatment Type: Surgery
Yousif v QBE Insurance (Australia) Limited [2024] NSWPICMP 563
Motor Accident Injuries Act 2017; permanent impairment; 2018 motor accident; examination by Medical Assessors (MA); finding that motor accident caused a post-traumatic stress disorder; claimant had significant ongoing pain; need to separate effects of pain from effects of psychological condition; exercise of assessment of permanent impairment dependent upon clinical judgment of MA’s; Held – claimant sustained permanent impairment assessed at 7%; no deduction made for prior symptoms as there was objective evidence of permanent impairment at the time of the motor accident; Medical Assessment Certificate revoked.
Decision date: 13 August 2024 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Jamei v 22 Degrees Air-Conditioning Services Pty Ltd [2024] NSWPICMP 463
Whether Medical Assessor (MA) considered all the evidence and provided sufficient reasons with respect to his ratings of the appellant’s permanent impairment in self-care and personal hygiene and in concentration, persistence and pace; Held – MA considered all relevant evidence and provided sufficient reasons; Medical Assessment Certificate confirmed.
Decision date: 17 July 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Cobcroft v State of New South Wales (NSW Police Force) [2024] NSWPICMP 464
Whether Medical Assessor’s ratings of appellant’s impairment in self-care and personal hygiene and concentration, persistence and pace involved error; Held – rating of appellant’s impairment in self-care and personal hygiene did not involve error, but rating in concentration, persistence and pace did involve error; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 17 July 2024 | Panel Members: Member Marshal Douglas, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric and Hearing Loss
Asbury v RMH Enterprises Pty Ltd [2024] NSWPICMP 525
Demonstrable error on face of Medical Assessment Certificate (MAC); appellant suffered injury to his lumbar spine on 14 September 2021; Medical Assessor (MA) incorrectly recorded the findings of the appellant’s independent medical examiner, and made an assessment of the appellant’s whole person impairment based on the findings of radiological reports, rather than the radiological films themselves; Held – error found; Medical Appeal Panel obtained the relevant imaging and conducted an assessment based on it, rather than the radiological reports; applicant suffers from an impairment identical with that found by the MA; MAC confirmed.
Decision date: 30 July 2024 | Panel Members: Member Cameron Burge, Dr David Crocker, and Dr James Bodel | Body system: Lumbar Spine
Shaheen v Maxitrans Services Pty Ltd; Maxitrans Services Pty Ltd v Shaheen [2024] NSWPICMP 546
Psychological Injury; worker appealed and respondent employer cross-appealed; worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories namely, concentration, persistence and pace as well as failure to allow for effects of treatment; employer cross-appealed alleging error in the PIRS categories of self- care and personal hygiene and social and recreational activities; Held – no error found; Medical Assessment Certificate confirmed.
Decision date: 7 August 2024 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
Whether Medical Assessor (MA) considered all relevant evidence; whether MA erred in his ratings of appellant’s impairment in social functioning and in concentration, persistence and pace; Held – MA considered all relevant evidence and made no error; Medical Assessment Certificate confirmed.
Decision date: 7 August 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Kominkovski v Wollongong City Council [2024] NSWPICMP 548
Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding appellant had pre-existing condition; whether MA erred by not assuming, in accordance with section 323(2) that deductible proportion for section 323(1) is 10%; whether MA provided adequate reasons for finding appellant had pre-existing condition and for making deduction under section 323(1) of one-third; Held – MA was correct to find appellant had pre-existing condition and by not making assumption; MA did not provide adequate reasons for finding appellant had pre-existing condition; Medical Appeal Panel corrected that error by providing reasons for finding appellant had pre-existing condition; Medical Assessment Certificate confirmed.
Decision date: 7 August 2024 | Panel Members: Member Marshal Douglas, Dr Margaret Gibson, and Dr Doron Sher | Body system: Right Upper Extremity and Left Upper Extremity
Wright v State of NSW (NSW Police Force-Special Operations Command) [2024] NSWPICMP 551
Appeal by appellant worker on grounds of deterioration in her condition that resulted in an increase of the degree of permanent impairment and on the availability of additional relevant information; Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission considered; there was evidence of deterioration amounting to a change in the degree of permanent impairment; fresh evidence received on appeal; worker re-examined by a member of the Panel; Held – Medical Assessment Certificate revoked.
Decision date: 8 August 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr John Brian Stephenson | Body system: Right Upper Extremity, Right Lower Extremity, Left Lower Extremity, and Scarring
Zheng v Taosun Glass Pty Ltd [2024] NSWPICMP 552
Worker suffered significant injury when caught in a machine; Medical Assessor (MA) assessed left lower extremity and lumbar spine; whether MA provided adequate reasons; finding of “no significant clinical findings” consistent with SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed(AMA 5); whether MA appropriately assessed saphenous nerve injury; consideration of Tables 16.10, 16.11 and 17.37 of AMA 5; Held – Medical Assessment Certificate confirmed.
Decision date: 8 August 2024 | Panel Members: Member Parnel McAdam, Dr Drew Dixon, and Dr Mark Burns | Body system: Lumbar Spine, Left Lower Extremity, and Scarring
Canterbury Bankstown Council v Asmar; Asmar v Canterbury Bankstown Council [2024] NSWPICMP 553
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment Certificate (MAC) was so brief as to be devoid of reasoning; re-examination required; Coca-Cola Europacific Partners API Pty Ltd v Pombinho; allowance for the effects of treatment; Zoric v Secretary, Department of Education; Held – MAC revoked.
Decision date: 8 August 2024 | Panel Members: Member Catherine McDonald, Dr Graham Blom, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Dilernia v Oz Harvest Ltd [2024] NSWPICMP 554
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 because of an inadequate path of reasoning; Held – error found and a re-examination was considered necessary; Medical Assessment Certificate revoked.
Decision date: 8 August 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Wallace v Bre Three Pty Ltd [2024] NSWPICMP 556
Claim for primary psychiatric injury; worker appealed assessment in the psychiatric impairment rating scale (PIRS) category of social functioning; no demonstrable error found in the Medical Assessment Certificate (MAC) in relation to the PIRS scale of social functioning; Held – the assessment in this class was not made on the basis of incorrect criteria; MAC confirmed.
Decision date: 9 August 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Arnold v Arnold's Industrial Maintenance Pty Ltd [2024] NSWPICMP 557
Industrial deafness; worker assessed as suffering from noise-induced binaural hearing impairment; consistent reports of worker suffering from severe tinnitus; evidence that severe tinnitus symptoms developed approximately 20 years after last noise exposure; consideration of clause 9.11 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4thed
1 March 2021; whether severe tinnitus had been caused by a work-related injury; question of causation inherent in application of the clause; Held – no demonstrable error; Medical Assessor correct to conclude severe tinnitus was not caused by a work-related injury; Medical Assessment Certificate confirmed.
Decision date: 9 August 2024 | Panel Members: Member Parnel McAdam, Dr Robert Payten, and Dr Thandavan Raj | Body system: Hearing Loss
Burnell v Response Security Services Pty Ltd [2024] NSWPICMP 558
Psychiatric injury claim; whether additional evidence admissible from claimant seeking to clarify findings by Medical Assessor (MA); whether MA conflated psychiatric impairment rating scale (PIRS) categories in assessment of travel and employability; observations on purpose of Chapter 11.11 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and that evidence explaining motivation for behaving in a manner inconsistent with claimant’s statement of no relevance; substantive submissions regarding employability no more than conclusive self-report, observations as to function of MA; Wingfoot Australia Pty Ltd v Kocak and Lukacevic v Coates Hire Operations Pty Limited considered and applied; multiple references to Ballas v Department of Education (State of NSW) by claimant unclear in purpose or particularity and relevance doubted; Diazv Sydney International Container Terminals Pty Ltd referred to; Held – application to admit fresh evidence rejected as evidence relied on could reasonably have been obtained prior to the medical assessment; proposed fresh evidence not prima facie probative as it was inherently contradictory and contradictions not traversed; substantive appeal regarding travel rejected; Medical Assessment Certificate confirmed.
Decision date: 9 August 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Bergado v Insurance Australia Group Services Pty Ltd [2024] NSWPICMP 560
Workplace Injury Management and Workers Compensation Act 1998; assessment under the psychiatric impairment rating scale (PIRS); Tasevski v Westpac Banking Corporation; Jenkins v Ambulance Service of NSW; Held – Medical Assessment Certificate confirmed.
Decision date: 12 August 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr John Lam Po Tang | Body system: Psychological/Psychiatric
Tagg v Partelle Racing Pty Ltd [2024] NSWPICMP 561
Fall from a horse; multiple injuries; assessment in relation to impairment from psychological injury and assessment of the nervous system the subject of appeal; re-examination undertaken in respect of the psychological injury; in respect of the nervous system, whether the Medical Assessor (MA) was correct to hold there was no rateable impairment according to SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MA was correct in respect of the nervous system assessment, but the Medical Assessment Certificate was revoked because he should have assessed 0% whole person impairment instead of stating “unable to be assessed”.
Decision date: 12 August 2024 | Panel Members: Member Marshal Douglas, Dr Ross Mellick, and Dr Mark Burns | Body system: Nervous System
Porpiglia v Health Care Australia Pty Ltd [2024] NSWPICMP 562
Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment finding of 13% for psychological injury; whether Medical Assessor (MA) had erred in the classification of travel; MA had taken matters into account that were not relevant, and did not take parts of the worker’s statement into account; Held – MA’s reasons inadequate in this scale and re-examination directed; Medical Assessment Certificate revoked.
Decision date: 12 August 2024 | Panel Members: Member Carolyn Rimmer, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric
Long v Colin Green Demolitions [2024] NSWPICMP 564
Assessment under the Table of Disabilities by Medical Assessor (MA) in respect of loss of sight in both eyes as a result of an injury on 5 April 2001; MA assessed 0% loss of efficient use or impairment of the visual and nervous system; worker appealed on the grounds that the decision was made on the basis of incorrect criteria and the decision contained a demonstrable error; MA failed to discuss the reports of Associate Professor Fraser and explain why his opinion differed; Held – demonstrable error found; Medical Appeal Panel reviewed the evidence and concluded that that there was an obvious history of visual neglect on one side but no obvious history of visual field defects; 25% loss of efficient sight in both eyes; Medical Assessment Certificate revoked.
Decision date: 13 August 2024 | Panel Members: Member Carolyn Rimmer, Dr Ross Mellick, and Dr Michael Steiner | Body system: Visual and Nervous System
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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