Legal Bulletin No. 177

Issued 6 September 2024

Welcome to the one hundred and seventy seventh 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.

Motor Accidents non-Presidential Member Decisions

Allianz Australia Insurance Limited v Hasanovic [2024] NSWPIC 221

Motor Accidents Compensation Act 1999;assessment of damages only; claimant now self-represented having previously instructed two law firms; prior physical and psychiatric impairment; soft tissue injuries to neck, lumbar and right shoulder principally; assessed 5% cervical only and no psychiatric injury as a result of the subject accident; Held – no entitlement to future treatment and no entitlement to past or future care; claim limited to past and future economic loss and past treatment, and costs; claimant offered little by way of past treatment; limited employment; determined past loss of earnings as a buffer of $50,000; nothing for future loss of earnings; past treatment $5,279.45; total damages assessed $55,279.45; costs conceded by agreement.

Decision date: 1 May 2024 | Member: Allan Cowley

QBE Insurance (Australia) Limited v Houseman [2024] NSWPIC 456

Settlement approval; 20-year-old female; non-economic loss concession; past economic loss buffer; future economic loss $600 weekly for ten years then $300 weekly thereafter to retirement; lumbar spine and psychological injuries; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 19 August 2024 | Member: Shana Radnan

Insurance Australia Limited t/as NRMA Insurance v O'Keefe [2024] NSWPIC 457

Motor Accidents Compensation Act 1999 (MAC Act); damages; economic and non-economic losses; past and future treatment; past gratuitous care; past and future commercial care; equipment costs; post-traumatic stress disorder, burns, injury to left hip and leg; lumbar spondylosis; obvious error; interest; Fox v Wood; claimant as member of Rural Fire Service (RFS) was responding to a fire when he was pinned between two fire trucks as fire front passed over; following accident returned to work as project manager; reliability of claimant’s evidence; reliability does not mean credibility; weight to be given to contemporaneous records; Campbell v Campbell cited; deterioration in condition led claimant to move into self-employment in car restoration business; question of capacity to undertake household, handyman and gardening tasks where undertaking heavy car restoration work; difficulty as to calculation of loss of earnings; NSW v Moss; additional claim for buffer for loss of opportunity to secure promotion; claim for equipment costs required to convert hobby of car restoration into business; Allianz Australia Insurance Limited v Serria Girgis and Ors cited; Held – the claimant’s move into self-employment working 26 hours per week has been an appropriate strategy to mitigate loss given lack of trust and tendency towards social isolation; damages assessed for non-economic loss, past and future treatment expenses; discount applied as per Avopiling Pty Ltd v Bosevski to future losses; past gratuitous assistance; past commercial assistance including driveway repairs, weed control, house painting; equipment needs; future commercial assistance; errors cited would change outcome of assessment and are not obvious errors; claimant has not established entitlement to interest where he does not meet any of conditions in section 137(4) of the MAC Act; damages and costs assessed in favour of claimant.

Decision date: 20 August 2024 | Member: Susan McTegg

Zaringhabaei v Insurance Australia Ltd t/as NRMA [2024] NSWPIC 458

Motor Accident Injuries Act 2017 (MAI Act); entitlement to damages; assessment by Medical Assessor (MA) of greater than 10% impairment and finding of non-threshold injury; review application filed by insurer; assessment initially referred back to MA as incomplete pursuant to rule 112 of the Personal Injury Commission Rules 2021; no notification to insurer that Commission was considering that course; insurer filed submissions seeking to be heard on matter being referred back to MA; insurer’s submission that incomplete certificates referred back limited to matters of form only rejected; rule 112 of general ambit and applies to certificates that do not comply with section 7.23 of the MAI Act; rule 112 not limited by Procedural Direction PIC6 and applies to certificates that have not assessed a body part; Held – matter considered afresh; MA failed to address a properly articulated argument which raised credibility issues; practical difficulties in MA providing further reasons; previous decision revoked.

Decision date: 20 August 2024 | Principal Member: John Harris

AAI Limited t/as GIO v Ing [2024] NSWPIC 462

Motor Accident Injuries Act 2017; section 6.23; damages claim; settlement approval; claimant self-represented; injured as a pedestrian; liability admitted by insurer; no entitlement to damages for economic loss; Reece v Reece and Varga v Galea applied; Held – proposed settlement is just, fair and reasonable, and within the range of likely outcomes; settlement approved.

Decision date: 23 August 2024 | Member: Terence Stern OAM

Vanoostwaard v Allianz Australia Insurance Limited [2024] NSWPIC 463

Motor Accident Injuries Act 2017; whether insurer entitled to reduce statutory benefits on account of contributory negligence of the claimant in accordance with section 3.38 of the MAI Act; accident occurred as motorcycle and ute approached a bend in narrow unmarked road from opposite directions; insurer determined that the claimant’s contributory negligence was 50%; Held – other driver cut the corner and was travelling at a speed greater than was reasonable in the circumstances; accident caused by the failure of the other driver to exercise reasonable care; no failure to exercise reasonable care on the part of the claimant; insurer not entitled to reduce statutory benefits.

Decision date: 23 August 2024 | Senior Member: Brett Williams

QBE Insurance (Australia) Limited v Bond [2024] NSWPIC 468

Settlement approval; 76-year-old female; proposed settlement in the sum of $230,000; non-economic loss; degloving injury to left lower leg; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 26 August 2024 | Member: Shana Radnan

Allianz Australia Insurance Limited v Ren [2024] NSWPIC 470

Motor Accident Injuries Act 2017 (MAI Act); sections 3.11 and  3.28; claim for statutory benefits; whether the motor accident was caused wholly or mostly by the fault of the claimant; claimant was injured as a passenger on a public bus when she fell to the floor on the bus; claimant was still standing trying to tap on her Opal card onto an Opal device when the driver of the bus braked heavily to avoid a collision with a vehicle that changed lanes; CCTV footage of the accident; Saleh v Allianz Australia Insurance Limited distinguished; Held – motor accident was not caused wholly or mostly by the fault of the claimant.

Decision date: 27 August 2024 | Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Kidd v State of New South Wales (Fire & Rescue NSW) & Ors [2024] NSWPIC 303

Workers Compensation Act 1987; section 25(1)(a); approval of agreed apportionment of lump sum; no issues in dispute; approval made on basis of factual evidence; no matter of principle discussed; injury in the course of employment as a firefighter resulted in death; the compensation payable by State of New South Wales upon the death of the deceased is $901,600; the deceased’s wife was dependent for support upon the deceased worker at the date of his death; no other persons dependent for support upon the deceased worker at the date of his death who seek to make a claim for compensation; the deceased’s children resided with the deceased but do not wish to make a claim for compensation; Held – first respondent is to pay to the deceased’s wife the amount of $901,600; respondent is to pay the applicant’s costs as agreed or assessed.

Decision date: 7 June 2024 | Principal Member: Josephine Bamber

Reeves v Robert Bosch (Australia) Pty Ltd [2024] NSWPIC 460

Workers Compensation Act 1987; section 60; disputed claim in relation to lumbar surgery, being L2/3 XLIF procedure, followed by extension of pedicle screws posteriorly; Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd applied; Held – the proposed surgery is a reasonably necessary treatment as a result of the injury; respondent to pay the costs of, and incidental to, the proposed surgery.

Decision date: 21 August 2024 | Principal Member: Josephine Bamber

Guy v Western Precast Pty Ltd [2024] NSWPIC 461

Workers Compensation Act 1987;undisputed claim for primary psychological injury as a result of bullying and harassment while on restricted duties following physical injury; respondent contended that finding for psychological injury should also be made; Held – applicant did not sustain secondary psychological injury; matter referred for medical assessment for primary psychological injury.

Decision date: 22 August 2024 | Member: Michael Wright

De Giusti v Chris De Giusti Painting Pty Ltd [2024] NSWPIC 464

Workers Compensation Act 1987; section 60; claim for medical expenses; accepted claim for injury to left shoulder and consequential condition of right shoulder; respondent disputed that applicant had sustained consequential condition of cervical spine; Bouchmouni v Bakhos Matta t/as Western Red Services, Kumar v Royal Comfort Bedding Pty Ltd, Rootsey v Tiger Nominees Pty Ltd, Cadbury Schweppes Pty Ltd v Bates, Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd, Hancock v East Coast Timber Products Pty Ltd, Australian Securities & Investment Commission v John David Rich & Ors, Makita (Australia) Pty Ltd v Sprowles, Hevi Lift (PNG) Ltd v Etherington and Nguyen v Cosmopolitan Homes considered; Held – opinion of independent medical examiner qualified by applicant provided in a “fair climate”; applicant sustained consequential condition of his cervical spine as a result of injury to his left shoulder; award for the applicant.

Decision date: 23 August 2024 | Senior Member: Kerry Haddock

Boreland v The GEO Group Australia Pty Ltd [2024] NSWPIC 465

Calculation of applicant’s pre-injury average weekly earnings (PIAWE); application of Workers Compensation Regulation 2016; application of regulation 8E concerning unpaid leave; no dispute that application had three periods of unpaid leave during the relevant earning period; no dispute that each period was less than seven consecutive calendar days; submissions for the applicant that fairness and justice requires adjustment of the relevant earning period to take account of the unpaid leave; Held – applicant’s submissions rejected; the respondent has correctly calculated the applicant’s PIAWE.

Decision date: 23 August 2024 | Member: Jill Toohey

Larden v Ford [2024] NSWPIC 466

Claim for permanent impairment compensation with respect to accepted injuries to right elbow and right shoulder and resulting scarring; respondent disputed that applicant had also sustained injury to cervical spine; first record of injury to cervical spine over one year after date of injury; differing accounts of mechanism of injury; Onassis v Vergottis, Watson v Foxman, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins and Nguyen v Cosmopolitan Homes considered; Held – award for the respondent for claim for injury to cervical spine; matter remitted to the President for referral to Medical Assessor.

Decision date: 23 August 2024 | Senior Member: Kerry Haddock

BMG v CFA [2024] NSWPIC 467

Death claim; no issue on liability; no issue on apportionment; Held – orders made awarding totality of death benefit to widow of deceased worker.

Decision date: 23 August 2024 | Member: Cameron Burge

Lang v TAFE NSW [2024] NSWPIC 469

Workers Compensation Act 1987; sections 4(b)(ii) and 60; dispute in relation to injury to the left wrist; claim for medical expenses; fusion to the left wrist; respondent denied liability on the basis that the applicant had well-established pre-existing degenerative changes in the wrist for which fusion was forecast prior to injury; applicant claimed aggravation of left wrist injury in motor vehicle accident in the course of his employment; Held – applicant sustained ‘injury’ by way of aggravation in the course of his employment; respondent to pay the costs of fusion surgery.

Decision date: 26 August 2024 | Member: Diana Benk

Pham v Rentokil Initial Pty Ltd [2024] NSWPIC 471

Workers Compensation Act 1987;sections 33, 37, 60 and 66; section 11A(1) defence; accepted psychological injury; claim for permanent impairment lump sum compensation, weekly compensation, and medical and related expenses; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal; Held – applicant sustained a psychological injury due to numerous workplace incidents; injury not wholly or predominantly caused by reasonable action of employer related to performance appraisal; matter referred to Medical Assessor for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation.

Decision date: 27 August 2024 | Member: Karen Garner

Jordan v Endeavour Group Ltd [2024] NSWPIC 473

Claim compensation for injuries to right shoulder, left wrist, cervical and thoracic spine; injuries to the cervical spine and upper extremities accepted by the respondent; respondent disputed that the applicant sustained an injury to her thoracic spine; no contemporaneous complaint or symptoms; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd and Davis v Council of the City of Wagga Wagga discussed and applied; Held – award for the respondent in respect of alleged thoracic spine injury; balance of accepted claims referred to a Medical Assessor.

Decision date: 27 August 2024 | Member: Diana Benk

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Hassoun [2024] NSWPICMP 587

Motor Accidents Compensation Act 1999; medical dispute as to extent of whole person impairment (WPI) arising from injuries caused by motor accident; claimant was the driver of a car with two passengers; claimant’s car was stationary at traffic lights when the claimant’s vehicle was struck in the rear by the insured vehicle at high speed; claimant recalls his whole body being jolted back and forth; claimant’s vehicle was shunted into the middle of the intersection; no airbags were deployed; police attended the scene; claimant believes that the insured vehicle’s driver was charged with possession of drugs; claimant’s vehicle was repaired; claimant does not recall immediate pain at the time; claimant reports experiencing gradually worsening pain in his neck, lower back, right knee and right wrist; insurer admitted liability for the claim; issues as to causation and nature of injuries; Held – 9% WPI found for injuries to cervical spine, lumbar spine and right shoulder; Medical Assessment Certificate revoked.

Decision date: 21 August 2024 | Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Spine, Upper Limb, and Lower Limb

Janev v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 588

Motor Accidents Compensation Act 1999; permanent impairment; son suffered serious injuries in 2015 motor accident; claimant witnessed son’s serious injuries at hospital; finding that motor accident caused a post-traumatic stress disorder and substance use disorder (alcohol); discussion of video footage; clinical assessment of permanent impairment undertaken by Medical Assessors in a joint examination; Held – claimant sustained permanent impairment assessed at 8%; deduction of 1% made for prior symptoms; Medical Assessment Certificate revoked.

Decision date: 21 August 2024 | Panel Members: Principal Member John Harris, Dr Gerald Chew, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural

El-Kazzi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 591

Motor Accident Injuries Act 2017 (MAI Act); dispute related to cervical perineural blocks and cervical discectomy and fusion; insurer’s review application; causation disputed; insurer alleges disability solely due to degenerative condition; claimant re-examined; discussion of benefits of treatment; vague treatment aims; appropriate treatment; no radiculopathy or uncontrollable pain; possibility revised conventional treatment could help; claimant reluctant to undergo surgery or nerve blocks; meaning of “reasonable and necessary in the circumstances” in section 3.24 of the MAI Act; no support for nerve blocks or surgery; preponderance of medical evidence including insurer’s specialist support accident aggravating degenerative condition; Held – accident caused injuries requiring treatment; both proposed treatments not reasonable and necessary in the claimant’s circumstances; Medical Assessment Certificate revoked.

Decision date: 21 August 2024 | Panel Members: Member Terence O'Riain, Dr David McGrath, and Dr Drew Dixon | Type of Treatment: Surgery and Other

Ul Haq v Transport Accident Commission [2024] NSWPICMP 592

Medical dispute as to extent of permanent impairment arising from injuries caused by accident; claimant’s vehicle was a taxi but the claimant was not working at the time; the insured vehicle reversed into the claimant’s at very low speed; vehicle at-fault registered in Victoria; claimant says he was thrown around violently on impact; he was able to exchange details with the other driver and then drive home; he developed increasing neck pain within two hours which spread to his left shoulder and arm; the claimant says that he developed increasing lower back, left buttock and thigh pain over the next four or five days; claimant underwent lumbar fusion at L4/L5; surgery approved by insurer for statutory benefits (NRMA) but not by insurer for common law claim; whether surgery related to injuries suffered in accident; causation; biomechanical engineering evidence; Held – lumbar fusion surgery related to accident; whole person impairment assessed at 20%; not satisfied as to causation of cervical injury; Medical Assessment Certificate revoked.

Decision date: 21 August 2024 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine

Thompson v Allianz Australia Insurance Limited [2024] NSWPICMP 597

Motor Accidents Compensation Act 1999; claim for proposed lumbar spine fusion; delay in recorded complaint; clinical note three months after accident indicated back pain commenced previous week; claimant denied accuracy of note; discussion of authorities on fallibility of human recollection and caution in accepting notes recorded by medical practitioners; various factors supported claimant’s history that the motor accident caused discal injury to the lumbar spine; clinical examination of claimant; condition had deteriorated sufficient to warrant surgery; Diab v NRMA Ltd applied and discussed; discussion of causation; material contribution between injury and proposed surgery; AAI Limited v Phillips applied; reference made to injury findings; ongoing degenerative process; injury materially contributed to surgery; Held – proposed surgery reasonable and necessary and caused by the accident; original medical assessment revoked.

Decision date: 23 August 2024 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr David Gorman | Type of Treatment: Surgery

Harris v QBE Insurance (Australia) Limited [2024] NSWPICMP 598

Threshold injury; certificate and reasons; aggravation of pre-existing degenerative disease; compression fracture L2; no longer attending specialists; activities of daily living; signs of radiculopathy; delay in onset of symptoms; Held – Medical Assessment Certificate confirmed.

Decision date: 23 August 2024 | Panel Members: Member Hugh Macken, Dr Michael Couch, and Dr Alan Home | Injury module: Spine, Upper Limb, and Lower Limb

AAI Limited t/as GIO v Worth [2024] NSWPICMP 599

Review of medical assessment; threshold injury; nose and air passage impairment; deviation of nasal septum; facial lacerations; air passage defects; nasal trauma; caused by the motor vehicle accident; substantial contributing factor to this condition; multiple medical assessments; Held – Medical Assessment Certificate revoked.

Decision date: 26 August 2024 | Panel Members: Member Hugh Macken, Dr Michael McGlynn, and Dr Brian Williams | Injury module: Ear, Nose, Throat and Related Structures

Tran v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 603

Motor Accident Injuries Act 2017; whole person impairment (WPI); causation; injuries to cervical spine, lumbar spine, left shoulders, chest; pre-existing degenerative change; surgery to cervical spine; lack of complaint; Medical Assessor (MA) assessed 10% WPI; claimant injured in accident on 11 January 2020; pre-existing disc protrusion at C3/4 level; no complaint between 26 November 2016 and 11 January 2020 even though consulted GP on 26 occasions; finding that claimant sustained soft tissue injury to neck; claimant underwent C3/4 cervical decompression and fusion on 13 November 2023; reasons for surgery given as persistent pain, cord impingement and myelomalacia; whilst cord impingement and myelomalacia pre-dated accident it was not symptomatic; AAI Limited t/as AAMI v Phillips cited; accident caused condition to become symptomatic; accident was a material contribution to need for surgery; no complaint of back pain until about August 2021; Norrington v QBE Insurance (Australia) Limited considered; accident did not cause injury to lumbar spine; injury sustained to chest and left shoulder resolved; Held – certificate of MA revoked; 25% WPI found.

Decision date: 27 August 2024 | Panel Members: Member Susan McTegg, Dr Ian Cameron, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

BHT v CIC Allianz Insurance Limited [2024] NSWPICMP 604

Motor Accidents Compensation Act 1999; section 63; whether the degree of permanent impairment as a result of psychological injury caused by the accident is greater than 10%; where Medical Assessor found that the claimant did not suffer a psychological injury as a result of accident; Held – the claimant developed somatic symptom disorder in response to symptoms related to accident caused physical injuries; somatic symptom disorder is a somatoform disorder; the psychiatric impairment rating scale (PIRS) must not to be used to measure impairment due to somatoform disorders or pain; as somatic symptom disorder is a somatoform disorder an assessment of whole person impairment not made; the claimant suffered from a panic disorder that was not caused by the accident; Medical Assessment Certificate revoked; permanent impairment not greater than 10%.

Decision date: 27 August 2024 | Panel Members: Senior Member Brett Williams, Dr Melissa Barrett, and Dr Samson Roberts | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Watkins v Racing NSW [2024] NSWPICMP 519

Workplace Injury Management and Workers Compensation Act 1998; previous claim in respect of a 2009 injury assessed by same Medical Assessor in 2022; this claim for 2020 injury; overlapping body parts; outcome resulted from forensic decisions made; consistency tests; Bojko v ICM Property Service Pty Ltd; assessment of radiculopathy under paragraphs 4.27 and 4.28 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 March 2021; assessment of activities of daily living; Held – Medical Assessment Certificate confirmed.

Decision date: 30 July 2024 | Panel Members: Member Catherine McDonald, Dr Drew Dixon, and Dr Margaret Gibson | Body system: Cervical Spine and Right Upper Extremity

New Food Coatings Pty Ltd t/as Newly Weds Foods Australia v Jimenez [2024] NSWPICMP 586

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not having regard to a psychological injury the appellant suffered following the injury that had been referred for assessment and in regards to which an award had been entered for the appellant; whether MA erred by not excluding from his assessment any impairment the respondent had from the subsequent injury; whether MA erred by not making a section 323 deduction for pre-existing condition; ; Held – the MA erred by not having regard to the subsequent injury but did not make an error by not making a section 323 deduction because there was no evidence the respondent had pre-existing condition; respondent was re-examined; re-examination found that respondent’s subsequent injury had no effect on his current function or impairment; Medical Assessment Certificate confirmed.

Decision date: 20 August 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

McNamara v Stahmann Farms Enterprises Pty Ltd [2024] NSWPICMP 593

Workplace Injury Management and Workers Compensation Act 1998; appeal against the finding of no maximum medical improvement: whether Medical Assessor (MA) failed to apply Chapters 1.15 and 1.16 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 March 2021; whether adequate reasons given; MA found reduction in range of movement in the subject shoulder was significant over a period of five months in three separate examinations, being the two medicolegal specialists and the MA; reduction in range sufficient to suggest a progressive impairment but no investigations of the shoulder had been performed; MA advised deferral of assessment for 12-18 months and was unable to say whether the impairment was permanent; Held – Medical Assessment Certificate confirmed.

Decision date: 21 August 2024 | Panel Members: Member John Wynyard, Dr Gregory McGroder, and Dr James Bodel | Body system: Right Upper Extremity

Stock & Station Aviation Pty Ltd v Fowler [2024] NSWPICMP 594

Whether Medical Assessor (MA) considered all relevant evidence; whether MA’s rating of appellant’s impairment in social and recreational activities and in social functioning are supported by evidence; whether MA’s ratings of appellant’s impairment in social and recreational activities and in social functioning correct; Held – MA had considered all the evidence; MA’s rating in social and recreational activities supported by the evidence and is correct; MA’s reasoning for appellant’s impairment in social functioning and the evidence was inconsistent with the rating he scored and was an error; Medical Assessment Certificate revoked.

Decision date: 22 August 2024 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Anastasopoulos v Icom Solutions Pty Ltd [2024] NSWPICMP 595

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) able to rely on his findings from his examination of the appellant; whether MA adequately explained his reasons for his assessment; whether MA correct to find appellant had a pre-existing condition that contributed a proportion of the appellant’s permanent impairment; Held – MA able to rely on his findings and adequately explained his reasons and was right to find appellant had a pre-existing condition; Medical Assessment Certificate confirmed.

Decision date: 22 August 2024 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Gregory McGroder | Body system: Cervical Spine, Lumbar Spine, Right Upper Extremity, and Right Lower Extremity

Lee v Secretary, Department of Education [2024] NSWPICMP 596

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s rating of appellant’s impairment in employability under the psychiatric impairment rating scale (PIRS) involved error; Held – error found; Medical Assessment Certificate revoked.

Decision date: 22 August 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Wetere v Coles Supermarkets Australia Pty Ltd [2024] NSWPICMP 600

Workplace Injury Management and Workers Compensation Act 1998;appeal from assessment of whole person impairment for psychological injury; finding of a secondary psychological injury when referral was only for assessment of a primary psychological injury from a separate injury; finding that the effects of the primary psychological injury had resolved without adequate explanation; Held – error found; re-examination considered necessary; Medical Assessment Certificate revoked.

Decision date: 26 August 2024 | Panel Members: Member John Isaksen, Professor Nicholas Glozier, and Dr John Baker | Body system: Psychological/Psychiatric

Patarker Pty Ltd ATF The Bigeni Family Trust v Hosking [2024] NSWPICMP 601

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) was correct to assume in accordance with section 323(2) that the deductible proportion for section 323(1) was 10%; Held – MA was correct to do so; Medical Assessment Certificate confirmed.

Decision date: 26 August 2024 | Panel Members: Member Marshal Douglas, Dr David Crocker, and Dr John Brian Stephenson | Body system: Lumbar Spine and Scarring

Wilson v Secretary, Department of Communities and Justice [2024] NSWPICMP 602

Whether Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS), namely social and recreational activities and concentration, persistence and pace; Held – error found regarding social and recreational activities but no error in respect of concentration, persistence and pace; Medical Assessment Certificate revoked.

Decision date: 26 August 2024 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric

Ishkhanian v Workforce Recruitment and Labour Services Pty Ltd [2024] NSWPICMP 605

Whether Medical Assessor (MA) erred with his ratings of appellant’s impairment in social and recreational activities, social functioning and concentration, persistence and pace; Held – MA erred with this rating of appellant’s impairment in social functioning but not with the other categories; no difference in outcome upon correction; Medical Assessment Certificate confirmed.

Decision date: 27 August 2024 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric

Healthshare NSW v Masters [2024] NSWPICMP 606

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury suffered as a result of events from 2013; appeal with respect to psychiatric impairment rating scale (PIRS) categories of social and recreational activities, concentration, persistence and pace and employability; worker attending TAFE and looking for work; Bojko v ICM Property Service Pty Ltd; Held – no error with respect to social and recreational activities; error with respect to concentration, persistence and pace, and employability; Medical Assessment Certificate revoked.

Decision date: 27 August 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Liu v QBE Insurance (Australia) Limited [2024] NSWPICMR 65

Motor Accident Injuries Act 2017 (MAI Act); Division 3.3; dispute about payment of weekly benefits; meaning of pre-accident weekly earnings; meaning of earnings; clause 4 in Schedule 1 to the MAI Act; self-employment; sole trader versus company; company as separate legal personality; rental income; clause 3(3)(b); Held– the reviewable decision is set aside.

Decision date: 22 August 2024 | Merit Reviewer: Katherine Ruschen

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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