Legal Bulletin No. 176

Issued 30 August 2024

Welcome to the one hundred and seventy sixth 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.

Supreme Court Decisions

Insurance Australia Limited t/as NRMA Insurance v Duc Thuong Le [2024] NSWSC 1022

Administrative law; judicial review; decision of medical assessor referred to review panel; whether review panel failed to apply the lawful test of causation; whether review panel reversed onus of proof; whether review panel failed to expose its actual path of reasoning; whether review panel made a finding when there was no supporting evidence; whether the review panel failed to consider a substantial and clearly articulated argument; whether there was jurisdictional error or error on the face of the record; Held – order that the summons filed 24 November 2023 be dismissed; order that the plaintiff pay the first defendant’s costs in this Court.

Decision date: 19 August 2024 | Before: Price AJA

Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099

Administrative law; judicial review; motor accident; decision of medical review panel; unexplained delay by review panel in providing certificate; whether delay resulted in jurisdictional error or error of law on face of record; costs; judicial review of decision of a medical review panel; application of Suitors’ Fund Act 1951 (NSW); whether costs may be payable by body responsible for delay leading to proceedings; torts; negligence; damages; non-economic loss; whether threshold exceeded; medical assessment of permanent impairment; Held – dismiss the amended summons filed on 9 August 2024; order that the plaintiff pay the first defendant’s costs in this Court; refuse the plaintiff’s application for a certificate under the Suitors’ Fund Act 1951 (NSW).

Decision date: 29 August 2024 | Before: Basten AJ

Presidential Member Decisions

Workers Compensation Nominal Insurer (icare) v Kamau [2024] NSWPICPD 51

Workers Compensation; principles applying to expert evidence; rule 73 of Personal Injury Commission Rules 2021; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 considered and applied; Held – the Member’s Certificate of Determination dated 14 July 2023 is revoked; the matter is remitted to a different member for re-determination.

Decision date: 20 August 2024 | Before: President Judge Phillips

Busways Group Pty Ltd v Chandi [2024] NSWPICPD 52

Workers Compensation; alleged failure to give adequate reasons; Wang v State of New South Wales [2019] NSWCA 263; Musija v Kresa [2010] VSCA 163 applied; alleged failure to deal with submissions; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 applied; requirement to show error in factual determinations; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; Held – the Member’s Certificate of Determination dated 16 August 2023 is confirmed.

Decision date: 21 August 2024 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Smith [2024] NSWPIC 19

Motor Accident Injuries Act 2017;section 7.34(1)(b); recommendation; claim not suitable for assessment; complex factual issues; complex issues of liability, fault, and causation; witnesses out of state; action against non-CTP party; length of hearing; Held – claim is 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: 8 January 2024 | Member: Shana Radnan

Pearson v AAI Limited t/as GIO [2024] NSWPIC 289

Motor Accidents Compensation Act 1999; assessment of damages only; head-on collision involving B-double truck and “tipper and dog” truck combination; claimant had to be airlifted to hospital after responders took 90 minutes to cut him from cabin; claimant 48 years old at time of accident and now 55.5 years; injuries included medium acquired brain injury, laceration to the frontoparietal scalp, comminuted compound fracture of the right kneecap, fractures to C4 and C5 vertebrae, partial thickness tear to the left shoulder, fractures to the nose and other facial lacerations, multiple minor lacerations and abrasions; claimant has undergone 9 surgeries including knee replacement and amputation of the right little finger, with the prospect of at least one further surgery; claimant suffers anger, anxiety nightmares and other psychological sequalae, constant pain and deteriorating degenerative changes, claimant has been certified unfit for work but continued to “moonlight” driving whilst claiming weekly expenses against Workers Compensation insurer; issues of credibility with claimant and wife concerning same for “double dipping”; credibility does not affect actual injuries; Held – total damages of $1,750,793.54 assessed.

Decision date: 16 May 2024 | Member: Allan Cowley

Conti v AAI Limited t/as GIO [2024] NSWPIC 309

Motor Accident Injuries Act 2017; member’s recommendation; application for exemption from assessment; the claim involves complex legal or factual issues, including evidence of the nature of the relationship between claimant and the deceased, and the implications of the claimant’s financial position; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 14 June 2024 | Member: Terence Stern OAM

Saunders v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 395

Motor Accident Injuries Act 2017 (MAI Act); whether claimant wholly or mostly at fault for the purposes of terminating statutory benefits 52 weeks after the accident; claimant riding bicycle to work close to gutter; claimant alleged yellow car was driving within 10 cm of her right hand on the handlebar; claimant concerned as to her safety and attempted to get off the road by turning sharp left into a driveway; lost control on the two-inch lip between surface of road and surface of driveway; claimant fell and fractured wrist; claimant made claim against Nominal Defendant on basis yellow car was unidentified; insurer accepted presence of yellow car on the road in the vicinity of the claimant and admitted due enquiry and search had been undertaken; insurer denied liability for ongoing statutory benefits on basis claimant was wholly at fault; no submissions on contributory negligence from insurer and no submissions on costs;no challenge to evidence that yellow car was riding too close to the claimant; rule 144(1) of Road Rules 2014 referred to; Hossain v Mirdha and Nominal Defendant v Hawkins followed; Held – manner of driving yellow car caused claimant to take evasive action which caused the claimant to lose control of her bike; but for how the yellow car was driven, the accident would not have occurred; claimant not wholly at fault; no contributory negligence found.

Decision date: 25 July 2024 | Member: Belinda Cassidy

Kc v QBE Insurance (Australia) Limited [2024] NSWPIC 403

Motor Accident Injuries Act 2017; Nominal Defendant; nervous shock claim arising from claimant’s son’s catastrophic brain injuries; lifetime care; breach of duty of care denied; claimant applied for discretionary exemption from assessment; claimant’s son’s claim is exempt; preliminary assessment of claim; complex evidence; cross examination of multiple liability witnesses; possible location view; estimated hearing time 7 to 10 days; insurer consents to application; Held – court hearing is more likely to result in the just, quick, and cost-effective resolution of the disputed issues; recommendation that claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 29 July 2024 | Member: Terence O’Riain

Insurance Australia Limited t/as NRMA Insurance v Delmar [2024] NSWPIC 413

Motor Accident Injuries Act 2017; settlement approval; claim for damages for past and future economic loss; claimant sustained a right humerus fracture, requiring open reduction and internal fixation; soft tissue injuries to right shoulder and right elbow; scarring; assessed at 7% whole person impairment; claimant has returned to his pre-accident full-time employment as a council asset inspection officer; claimant has limited capacity to pursue alternative career as fine arts instrument constructor and artist; whether a buffer allowance for future economic loss is appropriate in the circumstances; Held – proposed settlement of $125,000 is approved.

Decision date: 1 August 2024 | Member: Maurice Castagnet

Meneses v Lifetime Care and Support Authority of New South Wales [2024] NSWPIC 428

Motor Accident Injuries Act 2017 (MAI Act); section 1.4; claim for statutory benefits; dispute about provision of a service or assistance animal; claimant requested an animal; his GP had given him a referral to a supplier; supporting evidence from GP, psychologist and physiotherapist; State of NSW (Central Coast Local Health District) v Bunce and Rose v Health Commission (NSW) referred to; Held – a service or assistance animal comes within the meaning of “rehabilitation” as defined in the MAI Act and is therefore a form of treatment; whether service or assistance animals were “aids or appliances” and therefore treatment considered but not determined; matter referred for medical assessment of whether the proposed treatment is reasonable and necessary and related to the injuries caused by the accident.

Decision date: 9 August 2024 | Member: Belinda Cassidy

Irani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 455

Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute about provision of a therapy animal or support dog or dog(s); claimant had two dogs which were pets before the accident but he submitted that as a result of his injuries he needed the dogs as part of his treatment, recovery and rehabilitation plan; insurer submitted that “pet care” was not covered by MAI Act; claimant relied on medical evidence from his treating psychologist that his dog would help him manage his symptoms and prevent him from deterioration; whether a therapy animal or support dog comes within the definition of “treatment” in section 1.4 of MAI Act; State of NSW (Central Coast Local Health District) v Bunce and Rose v Health Commission (NSW) referred to; Held – a therapy dog comes within the meaning of “rehabilitation” as defined in MAI Act and is therefore a form of treatment; matter referred for medical assessment of whether the proposed treatment is reasonable and necessary and related to the injuries caused by the accident.

Decision date: 9 August 2024 | Member: Belinda Cassidy

Atwal v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 440

Motor Accident Injuries Act 2017 (MAI Act);section 4.12; determination of preliminary issue; whether damages may be awarded where insurer does not concede permanent impairment greater than 10% and degree of permanent impairment has not been assessed by a Medical Assessor; whether there is a “dispute”; whether there is a “medical dispute”; whether insurer bound by medico-legal opinion where insurer considers medico-legal opinion flawed; Held – the existence of a dispute does not necessarily require evidence from an approved health practitioner of permanent impairment below the threshold; a dispute about permanent impairment may arise on the basis that the medical evidence is in some identified way flawed, and cannot be relied on to establish the level of impairment contended for; there is a dispute about whether the degree of permanent impairment is sufficient for an award of damages for non-economic loss; section 4.12(1) of MAI Act is engaged; section 4.12 of MAI Act places a restriction on the award of damages for non-economic loss where there is a dispute about permanent impairment, while section 7.20 of MAI Act establishes a procedure for the dispute to be determined; if the matter were to proceed to assessment of damages, damages for non-economic loss may not be awarded.

Decision date: 15 August 2024 | Senior Member: Brett Williams

McDonough v Youi Pty Limited [2024] NSWPIC 445

Motor Accident Injuries Act 2017; miscellaneous claims assessment following insurer’s decision to deny liability on the basis claimant wholly or mostly at fault; claimant riding motorbike at night when he saw stationary traffic ahead, braked, and lost control; claimant did not know what caused him to lose control but thought there may have been oil or diesel on the road; no evidence from witnesses or emergency services as to presence of oil on the road; both parties provided expert reports; matter determined on the papers; findings of fact as to where the claimant braked and how he braked, distance he and his motorcycle slid on the road, and his speed; Held – Member satisfied the road surface was contaminated, therefore, claimant could not be wholly at fault; claimant contributed to the accident due to his speed; claimant mostly at fault.

Decision date: 19 August 2024 | Member: Belinda Cassidy

AAI Limited t/as GIO v Harvey [2024] NSWPIC 446

Motor Accident Injuries Act 2017; proposed settlement; claimant passenger; insured driver lost control on a dirt road, vehicle rolled down an embankment before hitting a tree; claimant required C6 to T1 cervical fusion and removal of fractured fragment impinging on nerve roots at C6/7; claimant a university student, working part-time with offer of full-time position on completion of his degree; Held – proposed settlement is just, fair and reasonable, within the likely potential damages assessments, taking into account the nature and extent of the claim; settlement approved.

Decision date: 19 August 2024 | Member: Elyse White

Insurance Australia Limited t/as NRMA Insurance v Morris [2024] NSWPIC 451

Motor Accident Injuries Act 2017; section 6.23; settlement approval; compression fracture, fracture of scaphoid bone, dislocated lunate bone, fractured end of the ulna and bones in thumb, ligament damage to lunate bone, economic and non-economic losses; contributory negligence; claimant sustained injury when she fell off the back of a motor bike when it went over a raised part of bitumen; breach of duty of care admitted but contributory negligence of 80% alleged; claimant was absent from aged care work for 65 weeks and then returned to work on reduced shifts; insurer conceded she had sustained greater than 10% whole person impairment; initial offer not approved; further negotiations with insurer; settlement approved on basis of reduction for contributory negligence of 50%; allowance for non-economic loss; allowance for past economic loss and future economic loss including a buffer for possibility of early retirement; Held – settlement approved.

Decision date: 20 August 2024 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Tough v Protech Personnel Pty Ltd [2024] NSWPIC 454

Personal Injury Commission Act 2020; section 57; sections 329(1)(b) and 329(1A) of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application for reconsideration; worker’s claim for lump sum compensation included scarring (TEMSKI); pleadings restricted to the lumbar spine and only this body system was referred to the Medical Assessor (MA); worker content with Medical Assessment Certificate (MAC), but when the employer appealed, the worker discontinued the substantive and appeal proceedings; parties agreed that the discontinued proceedings should be restored; dispute as to whether the claim should be referred back to the MA to assess the scarring; Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd and Samuel v Sebel Furniture Limited discussed and applied; Held – medical dispute that was referred to the Commission always included scarring (TEMSKI) and the referral to MA did not reflect this; the employer was on notice when IME report served; prejudice to the worker outweighed that of the employer, who could still file a fresh appeal; in the interests of justice between the parties, application for reconsideration granted; claim remitted to the President for referral back to MA to assess scarring.

Decision date: 27 March 2024 | Principal Member: Glenn Capel

Mazuran v Lake Macquarie Sheet Metal Pty Ltd [2024] NSWPIC 488

Workers Compensation Act 1987;section 60; claim for compensation for medical treatment; accepted lower back injury; whether mobility scooter is reasonably necessary as a result of the accepted lower back injury; Held – mobility scooter is reasonably necessary medical or related treatment; respondent to pay the costs of and incidental to a mobility scooter.

Decision date: 14 August 2024 | Member: Karen Garner

Kazangi v Reece Australia Pty Ltd [2024] NSWPIC 437

Workers Compensation Act 1987 Act; sections 33 and 37; accepted psychological injury; unrelated brain injury; whether incapacity caused by accepted psychological injury; extent of any incapacity caused by psychological injury; Kooragang Cement Pty Ltd v Bates; Held – as a result of the accepted work-related psychological injury the applicant has had no capacity for work and continues to have no current work capacity; respondent to pay the applicant.

Decision date: 14 August 2024 | Member: John Turner

Laphos v All-Scale Tree & Garden Services Pty Ltd [2024] NSWPIC 438

Workers Compensation Act 1987; section 60; claim for compensation for medical or related treatment; whether work-related injuries to the applicant’s thoracic spine and lumbar spine had ceased; whether medical treatment recommended reasonably necessary as a result of an injury; Rose v Health Commission (NSW), Murphy V Allity Management Services Pty Limited, Kooragang Cement Pty Ltd v Bates, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Sutherland Shire Council v Baltica General Insurance Co Ltd, Diab v NRMA Limited and Mason v Demasi considered; Held – applicant entitled to compensation; medical treatment recommended is reasonably necessary as a result of the continuing effects of the injuries the applicant sustained during the course of his employment; respondent to pay the costs of the medical or related treatment.

Decision date: 14 August 2024 | Member: Anne Gracie

Podesta v Toll Transport Pty Ltd t/as Toll Global Logistics [2024] NSWPIC 439

Workers Compensation Act 1987; claim for weekly compensation and payment of medical and related treatment expenses for alleged psychological injury in the nature of the aggravation of a pre-existing condition; issues of injury and main contributing factor; consequential condition of aggravation of pre-existing alcohol use disorder and further allegation of a consequential condition of aggravation of liver disease as a result of the aggravation of the alcohol use disorder; admissibility of medical evidence; Paric v John Holland Constructions Pty Ltd and Hancock v East Coast Timber Products Pty Ltd considered and applied; Held – second forensic report admitted as it related to a further claim; applicant not a reliable or credible witness; applicant’s medical case based on inaccurate and incomplete histories provided by applicant ; no “fair climate”; award for the respondent.

Decision date: 14 August 2024 | Member: Michael Moore

Adamcic v JM Fitout Pty Ltd [2024] NSWPIC 441

Claim for cost of medically necessary hernia surgery; whether applicant suffered a work-related injury, and if so, whether the injury was a frank incident or an aggravation of an underlying condition; whether need for surgery was brought about by a work injury; Held – applicant suffered injury by way of aggravation to a hernia in the course of his employment with the respondent; applicant’s injury was caused by the nature and conditions of his employment; the proposed hernia reduction surgery is reasonably necessary as a result of the applicant’s injury; respondent to pay costs of, and incidental to, the proposed surgery.

Decision date: 15 August 2024 | Member: Cameron Burge

McMillan v State of New South Wales (Mid North Coast Local Health District) [2024] NSWPIC 442

Claim for right arthroscopic acromioplasty; no dispute that the applicant injured her right shoulder and developed consequential condition in her left shoulder; whether the proposed treatment is reasonably necessary as a result of injury; differing opinions as to the diagnosis of her condition and whether she could have injured her rotator cuff in the circumstances described; Held – treatment is reasonably necessary as a result of the accepted injury to the applicant’s right shoulder.

Decision date: 15 August 2024 | Member: Jill Toohey

Ichthus Healthcare Pty Ltd v Workers Compensation Nominal Insurer (icare) & Anor [2024] NSWPIC 443

Workers Compensation Act 1987; section 145; claim made on the applicant; the statutory notice nominated a date of injury being 3 April 2021, which was the date employment ceased; whether statutory notice is defective and the effect of a defective notice; Haddad v The GEO Group Australia Pty Limited; Davis v State Rail Authority (New South Wales); contemporaneous medical material together with lay evidence did not support a finding that the date of injury was correct on the statutory notice; Held – liability to pay the statutory notice was attached to the date of injury; statutory notice is defective; applicant not liable to pay the sum requested in the statutory notice.

Decision date: 16 August 2024 | Senior Member: Elizabeth Beilby

Hill v The A2 Milk Company (Australia) Pty Ltd [2024] NSWPIC 444

Claim for medical treatment in respect of disputed consequential condition; insurer disputed that there was sufficient evidence to support the worker’s claim, even though the worker’s qualified specialist provided a proper explanation of the condition and its mechanism; insurer’s medical expert supported the applicant’s claim and withheld the report; insurer failed to pro-actively review the dispute when it obtained its own independent medical report as indicated to the worker and it failed to accept the claim; insurer declined to participate in discussions in the Commission to resolve the claim, in the knowledge that its own specialist supported the applicant; insurer failed to comply with SIRA’s claims’ management guides and Practice Guidelines, the Model Litigant Policy and the guiding principle in section 42 of the Personal Injury Commission Act 2020; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service and Diab v NRMA Ltd discussed and applied; Held – worker developed a consequential condition in his cervical spine as a result of accepted shoulder injuries; proposed consultation with specialist reasonably necessary; order for medical expenses; respondent to advise Commission why the insurer’s conduct should not be referred to icare.

Decision date: 16 August 2024 | Principal Member: Glenn Capel

Shankar v Transdev NSW South Pty Ltd [2024] NSWPIC 447

Workers Compensation Act 1987; section 60; claim for compensation for proposed cervical spine surgery; no dispute that surgery reasonably necessary medical treatment for a condition at the applicant’s spine; whether injury to cervical spine due to nature and conditions of employment as a bus driver; previously accepted injury to lumbar spine due to nature and conditions of employment; contemporaneous evidence of cervical spine symptoms during employment; claim for injury not made until approximately two and half years after employment ceased; Held – applicant has not discharged her onus of establishing injury or material contribution to need for surgery from injury; award for the respondent.

Decision date: 16 August 2024 | Member: Rachel Homan

Yousif v Cameron Sandy Painting & Decorating & Anor [2024] NSWPIC 448

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for compensation for permanent impairment; whether the applicant was a worker withing the meaning of section 4 of the 1998 Act or a deemed worker within the meaning of clause 2 of Schedule 1 in the 1998 Act; Held – the applicant was not a worker or deemed worker; award for the respondents.

Decision date: 19 August 2024 | Member: Sophie Jones

Casey v HammondCare [2024] NSWPIC 449

Aggravation of disease; applicant injured knee when assisting a patient during home care; significant history of investigations into knee spanning 14 years; admissibility of Injury Management Consult (IMC) report into evidence; consideration of Workers Compensation Guidelines; AV v AW and Taylor v J & D StephensPty Ltd considered; Held – IMC acted outside of Workers Compensation Guidelines and was acting as an advocate for insurer; report not admitted; award for the respondent.

Decision date: 19 August 2024 | Member: Parnel McAdam

Ypermachou v PMK Pty Ltd [2024] NSWPIC 450

Permanent impairment claim and threshold dispute; applicant suffered accepted injury to back and left leg in the course of his employment with the respondent in 1995; applicant also claims injury to his neck in the same incident, which is disputed, as are alleged consequential conditions to his right ankle, left ankle and respiratory system (sleep apnoea); Held – the applicant suffered injury to his back, neck and left leg in 1995; the applicant suffered consequential conditions to his left arm, right leg and obstructive sleep apnoea as a result of his injury; matter remitted to the President for referral of both disputes.

Decision date: 19 August 2024 | Member: Cameron Burge

Kavalieratos v Multiwood Craft Pty Ltd [2024] NSWPIC 452

Workers Compensation Act 1987; section 60 expenses for orthopaedic bed; application on the basis that bed was an artificial aid; injury in 1995 and worker was not an existing recipient of weekly compensation; Held – claim precluded by transitional provisions; award for the respondent.

Decision date: 20 August 2024 | Member: Catherine McDonald

Sawa v National Fleet Administrative Services Pty Ltd [2024] NSWPIC 453

Workers Compensation Act 1987; whether applicant had recovered from the accepted lumbar spine injuries that occurred in the course of his employment with the respondent on 23 October 2017; whether the applicant suffered a separate injury to his lumbar spine in the course of his employment with the respondent on 25 January 2019; The State Government Insurance Commission v Oakley, Carr v State of New South Wales (Mid North Coast Local Health District) and New South Wales Department of Education v Johnson considered and applied; expert evidence in a fair climate; Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Hancock v East Coast Timbers Products Pty Ltd, NSW Police Force v Hahn and Bui v HyView Fabrications Pty Ltd considered;whether the two-stage surgery, namely, an L4-S1 anterior lumbar interbody fusion (stage 1) and L4-S1 decompression and fusion (stage 2) surgery proposed by Dr Brian Hsu is reasonably a necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 23 October 2017; Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4) and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant suffered injuries to the lumbar spine arising out of or in the course of his employment with the respondent on 23 October 2017; the applicant had not recovered from the injury to his lumbar spine on 23 October 2017 when he returned to work with the respondent following injury; two-stage surgery is reasonably necessary; respondent to pay costs of, and ancillary to, the two-stage surgery.

Decision date: 20 August 2024 | Member: Anthony Scarcella

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v George [2024] NSWPICMP 69

Motor Accident Injuries Act 2017; dispute related to the assessment of whole person impairment (WPI) arising from right shoulder rotator cuff tear, cervical spine soft tissue injury and erosive gastritis of upper digestive tract; Medical Review Panel satisfied as to causation; claimant re-examined; Medical Review Panel required to form its own opinion on diagnosis and impairment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 13% WPI for right shoulder and digestive system; Medical Assessment Certificate revoked.

Decision date: 12 February 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Christopher Oates | Body system: Mental and Behavioural, Spine, Upper Limb, and Digestive System

QBE Insurance (Australia) Limited v Washbourne [2024] NSWPICMP 500

Motor Accident Injuries Act 2017; whole person impairment (WPI); determination by Medical Assessor that WPI was 21%; injuries alleged shoulders and cervical spine; claimant was delivering a side of meat to a butcher shop when he was hit by the insured vehicle on the right shoulder and fell onto the left shoulder; claimant had degenerative changes in his shoulder and cervical spine; insurer argued current impairment not caused by accident; Held – mechanism of accident could have caused injury to left and right shoulder and neck; claimant did injure his neck, left and right shoulder; no objective evidence of a pre-existing impairment and therefore no need to apportion; WPI assessed at 11%; Medical Assessment Certificate revoked; no matter of principle.

Decision date: 25 July 2024 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon, and Dr Margaret Gibson | Body system: Spine and Upper Limb

Bowen v QBE Insurance (Australia) Limited [2024] NSWPICMP 507

Whole person impairment (WPI); pre accident medical history; injuries to cervical spine and lumbar spine; effect of medication; clinical examination; active range of movement; neurological deficits; positive compression test; bilateral shoulder complaints; absence of pelvic symptoms following accident; delay in reporting injury to knee; Held – Medical Assessment Certificate revoked.

Decision date: 29 July 2024 | Panel Members: Member Hugh Macken, Dr Drew Dixon, and Dr Mohammed Assem | Body system: Spine, Upper Limb, and Lower Limb

Warner v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 570

Motor Accident Injuries Act 2017; medical dispute as to whole person impairment arising from injuries caused by accident; claimant’s motor scooter was stationary at a round-about when it was hit from behind by the insured’s vehicle; claimant was thrown backwards and onto the bonnet of the insured vehicle; claimant’s lower back and coccyx struck the windscreen; he suffered a hyper-extension injury to his upper back and neck, hitting the back of his head on the roof of the vehicle; claimant slid off the vehicle onto the roadway; claimant was wearing all protective gear including a helmet; claimant had no loss of consciousness; claimant says he was immediately aware of pain up and down his neck and back; insurer admitted liability for the claim; insurer did not dispute assessment of lumbar spine; insurer disputed causation of cervical spine impairment; re-examination confined to cervical spine by agreement; Held – Medical Assessment Certificate revoked.

Decision date: 15 August 2024 | Panel Members: Member Gary Victor Patterson, Dr Geoffrey Stubbs, and Dr Christopher Oates | Body system: Spine

Sadeldeen v Allianz Australia Insurance Limited [2024] NSWPICMP 569

Motor Accident Injuries Act 2017 (MAI Act); whole person impairment (WPI); causation; dispute related to the assessment of WPI of cervical spine, lumbar spine, left knee, both shoulders and right hand; Medical Assessor (MA) assessed 5% WPI for injury to cervical spine and 2% WPI for injury to left knee arising out of undisplaced tibial plateau fracture; on examination injuries to both shoulders resolved; lumbar spine assessed as DRE category 1 – 0% WPI; cervical spine assessed as DRE category 1 – 0% WPI; range of motion gives rise to 4% WPI; diagnosis-based estimate gives rise to 2% WPI; method of assessment providing highest rating should be chosen; injury to right hand not caused by accident; Held – Medical Assessment Certificate revoked; 4% WPI found.

Decision date: 15 August 2024 | Panel Members: Member Susan McTegg, Dr Clive Kenna, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb

Salucci v CIC Allianz Insurance Limited [2024] NSWPICMP 571

Motor Accident Injuries Act 2017; medical dispute as to extent of whole person impairment arising from accident-related injuries; claimant was driving on a highway when the insured van suddenly appeared on his left and heavily impacted the left-hand side of the claimant’s vehicle; force of impact caused the claimant to lose control; the claimant’s vehicle crossed over the median strip into incoming traffic; claimant says that his body was violently jolted because of both impacts and his left leg smashed against the centre console; claimant says that his right elbow smashed into the car door, and he felt pain in his neck, back, both shoulders, hips and both legs, particularly on the left side; insurer wholly admitted liability for the claim; Held – Medical Review Panel not satisfied as to causation of injuries to left hip and lower extremity; Medical Assessment Certificate revoked.

Decision date: 15 August 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Rhys Gray | Body system: Spine, Upper Limb, and Lower Limb

AAI Limited t/as GIO v Sapkota [2024] NSWPICMP 579

Motor Accident Injuries Act 2017; claimant was injured when his car was hit on the driver’s side at an intersection; claimant received injuries to his spine, right knee and foot; whether threshold injuries; Held – claimant’s right knee injury was caused by an earlier motor accident in 2018 based on medical evidence; Medical Assessment Certificate revoked.

Decision date: 19 August 2024 | Panel Members: Member Ray Plibersek, Dr Mohammed Assem, and Dr Michael Couch | Injury module: Spine and Lower Limb

Hollman v QBE Insurance (Australia) Limited [2024] NSWPICMP 580

Motor Accident Injuries Act 2017 (MAI Act); medical dispute about permanent impairment; Medical Assessor (MA) found accident did not cause injuries and declined to assess impairment; review based on MA failing to consider clinical evidence of lumbar spine and shoulder injuries; parties agreed on referred injuries under rule 70 of Personal Injury Commission Rules 2021; early complaints recorded of cervical and lumbar spine and left shoulder; first clinical note of right shoulder complaints eight months after accident; GP note on long consultation 15 December 2020 addresses delay in recording right shoulder symptoms and how accident could injure claimant; parties did not refer to this note; re-examination; Briggs v IAG Limited t/a NRMA Insurance and Bugat v Fox considered; Held – accident caused soft tissue injuries to cervical spine, lumbar spine, and bilateral shoulders; permanent impairment not greater than 10%; Medical Assessment Certificate revoked.

Decision date: 19 August 2024 | Panel Members: Member Terence O'Riain, Dr Shane Moloney, and Dr Drew Dixon | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Budage Pty Ltd ATF Tonclay Services Trust v Melhopt [2024] NSWPICMP 567

Appeal by employer from 19% whole person impairment (WPI) for psychiatric injury: whether Medical Assessor (MA) gave adequate reasons regarding the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel, concentration persistence and pace and employability; Held – reasons contradictory and not adequately explained as to social and recreational activities; MA considered motivation rather than behavioural consequences; MA failed to consider the volunteer work by claimant; rating in employability contradicted by the amount of volunteer work being performed by the claimant; factual errors are not explained adequately; Medical Assessment Certificate revoked.

Decision date: 14 August 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Ward v Sydney Health & Care Services Pty Ltd [2024] NSWPICMP 572

Appeal against assessment under three psychiatric impairment rating scale (PIRS) categories; appellant alleged Medical Assessor reached conclusions without putting them to worker during examination; breach of procedural fairness; Held – demonstrable error was made out; re-examination led to same assessment; Medical Assessment Certificate confirmed.

Decision date: 15 August 2024 | Panel Members: Member Parnel McAdam, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Attard v Secretary, Department of Communities and Justice [2024] NSWPICMP 573

Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered an accepted psychological injury; Medical Assessor (MA) assessed the impairment at 15% and made a one-tenth deduction pursuant to section 323(2) of 1998 Act; appellant contended that MA erred by failing to assess the pre-injury psychiatric impairment rating scale (PIRS) categories in accordance with clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines); effect of findings made by MA was that appellant was asymptomatic at time of injury; findings consistent with histories of various doctors; clause 11.10 of the Guidelines inconsistent with section 323 of 1998 Act for asymptomatic conditions; Marks v Secretary, Department of Communities and Justice (No 2) and Vitaz v Westform (NSW) Pty Ltd applied; Held – no error by MA in failing to apply clause 11.10 given factual findings; reasons of MA disclose prior psychological condition and reliance on section 323(2) of 1998 Act; deduction consistent with opinions of respective qualified doctors; demonstrable error not established; no contest between opinions; no failure to give adequate reasons; Medical Assessment Certificate confirmed.

Decision date: 15 August 2024 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric

Secretary, Department of Planning, Industry and Environment v Lowe [2024] NSWPICMP 574

Whether Medical Assessor (MA) erred by failing to assess the worker in accordance with the terms of the Personal Injury Commission’s referral, thus, failing to carry out his statutory task; whether MA erred in respect of the deduction for a pre-existing condition/previous injury; Held – MA erred; the worker had a substantial pre-existing condition; Medical Assessment Certificate revoked.

Decision date: 15 August 2024 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Australian Plant Hire Pty Ltd v Al-Ameri [2024] NSWPICMP 575

Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether demonstrable error or assessment on the basis of incorrect criteria in Medical Assessor’s determination that no deduction applied for pre-existing condition pursuant to section 323 of 1998 Act; where experts on both sides expressed opinion that a one-tenth deduction should apply for pre-existing but asymptomatic degenerative disease; Medical Assessor failed to engage with those opinions in making his own assessment; Held – demonstrable error found; Medical Appeal Panel not satisfied that any pre-existing condition or abnormality contributed to the impairment; Medical Assessment Certificate confirmed.

Decision date: 16 August 2024 | Panel Members: Member Rachel Homan, Dr Alan Home, and Dr John Brian Stephenson | Body system: Lumbar Spine and Right Lower Extremity

Parrott v Suncorp Staff Pty Ltd [2024] NSWPICMP 576

Whether Medical Assessor (MA) incorrectly assessed the appellant with class 2 mild impairment rather than a class 3 moderate impairment with respect of social and recreational activities; whether MA incorrectly assessed the appellant with a class 4 severe impairment rather than class 5 total impairment with respect to employability; whether MA failed to make an adjustment for whole person impairment for the effects of treatment; Held – Medical Assessment Certificate revoked.

Decision date: 16 August 2024 | Panel Members: Member Jacqueline Snell, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Health Services Union NSW v Rogers [2024] NSWPICMP 577

Appeal in relation to the Medical Assessor’s (MA) assessment of class 3 moderate impairment for the psychiatric impairment rating scale (PIRS) category of travel; evidence disclosed that the respondent worker was capable of travelling without a support person and therefore a class 3 assessment was in error; Ferguson v State of New South Wales; Held – Medical Assessment Certificate revoked.

Decision date: 16 August 2024 | Panel Members: Senior Member Elizabeth Beilby, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

HuTech Metal Products Pty Ltd v Hussain [2024] NSWPICMP 581

Workplace Injury Management and Workers Compensation Act 1998; referral in respect of nervous system, lumbar spine, scarring and digestive system; lead assessor also assessed cervical spine which was not the subject of a claim or dispute; Skates v Hills Industries Limited; Held – Medical Assessment Certificate revoked.

Decision date: 19 August 2024 | Panel Members: Member Catherine McDonald, Dr Michael Davies, and Dr Sophia Lahz | Body system: Nervous System, Lumbar Spine, Scarring, and Digestive System

Soliman v Secretary, Department of Education [2024] NSWPICMP 582

Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker sustained psychological injury; Medical Assessor (MA) assessed 13% whole person impairment (WPI); worker lodged appeal on the grounds that the assessment was made on the basis of incorrect criteria; Held – Medical Assessor had incorrectly applied clause 1.26 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 by rounding up the deduction made pursuant to section 323(1) of the 1998 Act, rather than rounding up the assessment of impairment after the deduction had been made; the assessment of 13% WPI was increased to 14% WPI; MA had not erred in placing the appellant in Class 2 for social functioning under the psychiatric impairment rating scale (PIRS), rather than in Class 3 o; Medical Assessment Certificate revoked.

Decision date: 19 August 2024 | Panel Members: Senior Member Kerry Haddock, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Willing v Ivy Contractors Pty Ltd [2024] NSWPICMP 583

Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether Medical Assessor (MA) adequately explained his reasons for making a deduction of 25% under section 323(1) of the 1998 Act; whether MA erred by making a deduction of 25%; Held – MA erred by making a deduction of 25% under section 323(1) of 1998 Act; Medical Assessment Certificate revoked.

Decision date: 19 August 2024 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr David Crocker | Body system: Lumbar Spine, Right Lower Extremity, Left Lower Extremity, and Scarring

Psaila v South 32 [2024] NSWPICMP 584

Worker sustained noise-induced hearing loss; Medical Assessor (MA) assessed 10% whole person impairment (WPI); worker lodged appeal on the grounds that the assessment was made on the basis of incorrect criteria; Held – MA had correctly assessed the worker’s hearing loss and provided sufficient reasons for excluding hearing loss in the lower frequencies; Medical Assessment Certificate confirmed.

Decision date: 20 August 2024 | Panel Members: Senior Member Kerry Haddock, Dr Henley Harrison, Dr Thandavan Raj | Body system: Hearing Loss

Secretary, Department of Education v Wescombe [2024] NSWPICMP 585

Psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under the psychiatric impairment rating scale (PIRS) category of social and recreational activities; Held – no error found; Medical Assessment Certificate confirmed.

Decision date: 20 August 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Garha v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 64

Motor Accident Injuries Act 2017 (MAI Act); whether an injured person is or has been residing outside of Australia; claimant a USA citizen injured in motor accident in August 2023 during a planned two-week vacation to Australia; claimant has not returned to the USA due to ongoing treatment for accident-related injuries; insurer denied payment of weekly statutory benefits on the basis that he does not reside in Australia; insurer submitted that a definition contained within the Australian Citizenship Act 2017 (Cth) should apply; claimant submitted that the ordinary meaning of “resides” should apply; Held – ordinary meaning applied, with reference to section 34 the Interpretation Act 1987, and the objects of the MAI Act; claim for costs due to exceptional circumstances, noting the dispute is not a regulated merit review matter; exceptional costs allowed to the amount equivalent to the maximum regulated amount for a regulated merit review matter.

Decision date: 16 February 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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