Legal Bulletin No. 178
This bulletin was issued on 13 September 2024
Issued 13 September 2024
Welcome to the one hundred and seventy eighth 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
Philip Leong Stores Pty Ltd v Gafa [2024] NSWPICPD 53
Section 352(5A) of the Workplace Injury Management and Workers Compensation Act 1998; an appeal does not stay an award for payment of weekly compensation; whether the Member erred by failing to address the submissions made; Whisprun Pty Ltd v Dixon applied; whether the Member erred by failing to provide reasons; Musija v Kresa applied; Held – the Member’s Certificate of Determination dated 18 September 2023 is confirmed.
Decision date: 29 August 2024 | Before: Deputy President Elizabeth Wood
Reynolds v Third Sector Australia Limited [2024] NSWPICPD 54
Section 11A(1) of the Workers Compensation Act 1987; whether employer’s actions with respect to discipline or performance appraisal were reasonable; Held – orders 2, 3 and 4 of the Certificate of Determination are revoked; the matter is remitted to the Commission for the appointment of a further date for hearing by a different member.
Decision date: 29 August 2024 | Before: Acting Deputy President Geoffrey Parker SC
Goh and Ors v Zetciti WP Pty Ltd [2024] NSWPICPD 55
Section 9B of the Workers Compensation Act 1987; Secretary, Department of Communities and Justice v Galea considered and applied; approach on appeal in assessing exercise of evaluative judgment of first instance decision maker; Australian Air Express Pty Ltd v Langford considered and applied; Held – the Certificate of Determination dated 20 September 2023 is confirmed.
Decision date: 2 September 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decision
QBE Insurance (Australia) Limited v BHR [2024] NSWPIC 477
Settlement approval; 51-year-old driver of a motor vehicle involved in a rear-end collision with a large motor lorry; claimant sustained injuries to her neck, back, head and right shoulder; insurer wholly admitted liability, conceded non-threshold injury and also conceded entitlement to damages for non-economic loss, past and future economic loss; claimant is a pharmacy assistant, has not been able to engage in either full-time or part-time employment since the accident; total amount of damage proposed is $500,000 less statutory payments made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 28 August 2024 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Hancock v Select Civil Pty Ltd [2024] NSWPIC 478
Claim for future lumbar fusion surgery opposed on grounds the surgery is not reasonably necessary; applicant suffered an accepted injury to his lumbar spine on 14 September 2018; he underwent multilevel microdiscectomies in January 2019; following this surgery, the applicant underwent a lengthy and diverse regime of conservative treatment; having come under the care of his current treating surgeon in 2020, the applicant originally eschewed lumbar fusion surgery in favour of conservative modalities; over time, the conservative treatment did not provide relief and he now seeks payment by the respondent of multi-level spinal fusion surgery; respondent denies liability on two bases, namely the surgery is premature owing to the applicant’s age, and that it is not suitable for anyone who smokes ten or more cigarettes per day owing to the risk of non-union at the fusion site; Held – the proposed surgery is reasonably necessary as a result of the applicant’s injury; the applicant’s treating surgeon has factored into consideration both the applicant’s age and his history of smoking; while the effect of smoking on the risk of non-union at the fusion site is a real one, it is only one of multiple factors to take into account in assessing whether the surgery is reasonably necessary, rather than the single determinative factor.
Decision date: 28 August 2024 | Member: Cameron Burge
Biffin v Scientrific Pty Ltd [2024] NSWPIC 479
Workers Compensation Act 1987; claim for weekly payments and lump sum compensation; accepted injury to right shoulder and bilateral wrists; disputed injury to left shoulder and cervical spine; whether applicant has no current work capacity and whether bookkeeper role is suitable employment; Held – the applicant sustained injuries to her left shoulder and cervical spine; the applicant has no current work capacity; the respondent is to pay weekly benefits compensation; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.
Decision date: 28 August 2024 | Member: Fiona Seaton
Nguyen v Bakers Maison Australia Pty Ltd [2024] NSWPIC 481
Claim for weekly payments, medical expenses and permanent impairment for injury to the left wrist and consequential conditions affecting the cervical spine, right wrist, right elbow and right shoulder; Moon v Conmah Pty Limited and Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer referred to; whether worker had no current work capacity or a partial incapacity for work for the period claimed for weekly payments; Held – worker suffered a consequential condition affecting her right wrist, right elbow and right shoulder, but not to her cervical spine; referral for assessment of permanent impairment for those body parts and also injury to left wrist; worker had no current work capacity for the period claimed; award for weekly payments for period claimed by worker and reasonably necessary medical expenses.
Decision date: 29 August 2024 | Member: John Isaksen
Vaimalu v Workforce Recruitment and Labour Services [2024] NSWPIC 482
Claim for lump sum compensation; liability accepted for right elbow and wrist injuries caused on 6 December 2018; liability denied for claim for injury to the right shoulder and lumbar spine; applicant claimed latter injuries occurred on 6 December 2018 in his original statement, which was primarily concerned with an unrelated altercation at his light duties employment; applicant subsequently gave a further, more considered statement which was supported by contemporaneous evidence as to the onset of the claimed injuries during the period the applicant was doing light duties; applicant's qualified expert had written a supportive report on the basis of the applicant's incorrect history and subsequently issued a further report when provided with the applicant's later statement; this further report corrected the history and found that the disputed injuries occurred whilst the applicant was doing light duties; whether applicant had satisfied his onus of proof; Held – the applicant suffered from pathology radiologically established in the right shoulder and a significant developmental pathology at L5/S1; award for the applicant.
Decision date: 29 August 2024 | Member: John Wynyard
Sternbeck v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 483
Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); worker was in receipt of weekly payments of compensation for a previous work injury during the relevant earning period; worker relies upon regulations 8B and/or 8C of the Workers Compensation Regulation 2016; Secretary, Department of Communities and Justice v Pell and Secretary, Department of Communities and Justice v Nitchell referred to; Held – the worker was not engaged in the employment with the respondent for part of the relevant earning period; there was a financially material change to the earnings of the worker in the relevant earning period; the relevant earning period for the calculation of PIAWE is adjusted; PIAWE determined accordingly.
Decision date: 30 August 2024 | Member: John Isaksen
Wren v Charles Sturt University [2024] NSWPIC 484
Workers Compensation Act 1987 (1987 Act); respondent denied liability for payment of compensation for reasons including that the applicant had recovered damages within the meaning of section 151A(1) of the 1987 Act when she settled a claim for adverse action in Fair Work proceedings; Gardiner v O’Rourke Constructions Pty Ltd considered; Adams v Fletcher International considered and distinguished; Held – the settlement of the Fair Work proceedings was compensation received under an independent statutory scheme; the applicant was not precluded from bringing her claim for workers compensation benefits; matter referred to further preliminary conference to deal with balance of claim.
Decision date: 2 September 2024 | Member: Michael Moore
Gili v Qantas Airways Ltd [2024] NSWPIC 485
Applicant a flight attendant; suffered multiple falls in course of employment with respondent; whether she had suffered a consequential condition in lumbar spine and cervical spine as a result of accepted knee injuries; claim made for assessment of total whole person impairment arising out of different injuries occurring on different dates; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes, Merchant v Shoalhaven City Council and Ozcan v Macarthur Disability Services Ltd considered; Held – applicant suffered a consequential injury to her lumbar spine; applicant did not suffer an injury or consequential condition in cervical spine; applicant could not combine injuries suffered to different knees on different dates for the purpose of whole person impairment.
Decision date: 2 September 2024 | Member: Parnel McAdam
Brodie v J.J. Richards & Sons Pty Ltd [2024] NSWPIC 487
Claim for lump sum compensation and various future treatment expenses; accepted injury to left upper limb; whether applicant sustained injury to cervical spine in same event; delay in symptoms being recorded by treating doctors and report of cervical spine injury to insurer; credibility of applicant’s evidence; applicant sustained an unusual injury involving multiple adjacent body parts which his doctors had difficulty diagnosing; treating evidence consistent with a frank injury to the cervical spine albeit only diagnosed after a process of elimination; Held – matter referred to Medical Assessor for assessment of degree of permanent impairment; general order for treatment expenses.
Decision date: 2 September 2024 | Member: Rachel Homan
Motor Accidents Medical Review Panel Decisions
Lacmanovic v Allianz Australia Insurance Limited [2024] NSWPICMP 578v
Motor Accident Injuries Act 2017; Medical Assessor (MA) determined claimant’s whole person impairment (WPI) was 4%; review sought by claimant; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation, clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – the claimant sustained soft tissue injuries and some degree of initial aggravations of underlying pre-existing degenerative changes in her cervical spine, lumbar spine and bilateral shoulders caused by the motor accident that give rise to a WPI of 2%; Medical Assessment Certificate revoked.
Decision date: 19 August 2024 | Panel Members: Member Anthony Scarcella, Dr Clive Kenna, and Dr Sophia Lahz | Injury module: Spine and Upper Limb
Tang v Transport Accident Commission [2024] NSWPICMP 590
Motor Accident Injuries Act 2017; whether injury a threshold injury; collision with the front of driver’s side of claimant’s vehicle by insured vehicle; claimant failed to attend re-examination and advised would not attend another; matter determined on the papers following clarification of the issues by the parties; issue confined to causation; lack of complaint, inconsistent with full range of motion recorded after the motor accident; Held – injuries found to lumbar spine and left shoulder; right shoulder tear of the supraspinatus tendon on the balance of probabilities not caused by the motor accident; Medical Assessment Certificate confirmed; injuries are threshold injuries.
Decision date: 21 August 2024 | Panel Members: Member Elizabeth Medland, Dr Shane Moloney, and Dr Thomas Rosenthal | Injury module: Spine, Upper Limb, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v BHS [2024] NSWPICMP 607
Motor Accident Injuries Act 2017 (MAI Act); review of medical assessment under section 7.26 of the MAI Act; parties agree that the claimant suffers from post-traumatic stress disorder as a result of the accident; whether degree of permanent impairment is greater than 10%; Medical Assessor found 16% permanent impairment; Held – claimant had a permanent impairment of 17%; Medical Assessment Certificate revoked.
Decision date: 28 August 2024 | Panel Members: Senior Member Brett Williams, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Oh [2024] NSWPICMP 608
Motor Accident Injuries Act 2017; section 1.6(3); threshold injury; treatment dispute; psychiatric consultation; Medical Assessor found claimant sustained persistent depressive disorder which was not a threshold injury; insurer sought review; insurer relied on report of Dr Tyler who administered psychometric testing and found claimant malingering; test conducted in English; interpreter left 30-60 minutes into 4-hour questionnaire; inconsistency explained by cultural norms and poor comprehension of complex tasks; Held – best diagnosis is persistent depressive disorder; Medical Assessment Certificate confirmed.
Decision date: 28 August 2024 | Panel Members: Member Susan McTegg, Dr John Baker, and Dr Wayne Mason | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Chebat [2024] NSWPICMP 611
Motor Accident Injuries Act 2017; psychological injury; threshold dispute; pre-existing psychological symptom denied by claimant; discussion of aggravation of psychological condition constitutes injury; AAI Limited t/as GIO v Hoblos and Todev v AAI Limited t/as GIO (Todev) applied; five-day delay in recorded compliant insignificant in context of psychological conditions; records establish material aggravation of an underling generalised anxiety disorder; application of principles in Lynch v AAI Limited t/as AAMI and David v Allianz Australia Ltd; discussion of contrary decision in Merhi v Insurance Australia Limited t/as NRMA Insurance (Merhi); articulation of reasons why the Review Panel declines to follow Merhi as reasoning inconsistent with common meaning of injury and observations of Court of Appeal in Mandoukos v Allianz Australia Insurance Limited and Supreme Court decision of Todev; Held – claimant suffered an aggravation of a psychological condition which is not a threshold injury.
Decision date: 29 August 2024 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr Christopher Canaris| Injury module: Mental and Behavioural
Pope v AAI Limited t/as GIO [2024] NSWPICMP 614
Motor Accident Injuries Act 2017; claimant was a front seat passenger in a car hit from behind by another car; claimant had pre-existing degenerative spinal disease and previous surgery L5/S1 decompression surgery; causation; injuries to claimant’s spine at the L5/S1 level are pre-existing injuries not caused by the motor accident; effect of second subsequent motor accident considered; Held – the subject accident did not cause or materially contribute or cause a material aggravation to the claimant’s pre-existing nerve root compression at the L5/S1 level; Medical Assessment Certificate revoked.
Decision date: 30 August 2024 | Panel Members: Member Ray Plibersek, Dr Rhys Gray, and Dr Michael Couch | Treatment Type: Surgery
Insurance Australia Limited t/as NRMA Insurance v Mendiratta [2024] NSWPICMP 615
Motor Accident Injuries Act 2017 (MAI Act); threshold injury and whole person impairment (WPI); Medical Assessor found 11% WPI; non-economic loss; spinal soft tissue and bilateral shoulder injuries claimed; insurer applied for review disputing causation and WPI; threshold injury dispute resolved in psychiatric assessment; re-examination; Held – Medical Assessment Certificate revoked; accident caused 4% total WPI.
Decision date: 30 August 2024 | Panel Members: Member Terence O’Riain, Dr Ian Cameron, and Dr Clive Kenna | Injury module: Spine, Upper Limb, and Brain Injury
Brennan v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 617
Motor Accidents Compensation Act 1999 (MAC Act): whole person impairment (WPI) for psychological injury; whether psychological injury a result of a motor accident; claimant and his child passengers in a vehicle driven by pregnant wife; altercation occurred with occupants of another driver; some intimidating conduct occurred during the driving of the vehicle; claimant was the victim of a serious physical assault; Allianz Australia Insurance Limited v Gonzales, Pham v NRMA Insurance Limited and AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly Motor Accidents Authority of New South Wales) considered; Held – psychological injury arose from the entirety of the relevant events, with the events involving the driving of the other vehicle materially contributing to the post-traumatic stress disorder; 8% WPI; Medical Assessment Certificate revoked.
Decision date: 3 September 2024 | Panel Members: Member Elizabeth Medland, Dr Paul Friend, and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Thompson v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2024] NSWPICMP 609
Whether Medical Assessor (MA) failed to carry out a strength test evaluation in accordance with Table 16-34 in Chapter 16 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment,5th ed (AMA Guidelines); absent any assessment under clause 16.8 of the AMA Guidelines, MA was unable to determine whether such an assessment would have been a reliable method of assessing the worker’s impairment; MA failed to give reasons as to why Table 16-27 in respect to impairment of a radial head after arthroplasty was an analogous condition of the worker’s bicep tendons injury; re-examination took place; Held – Medical Assessment Certificate revoked.
Decision date: 28 August 2024 | Panel Members: Member Deborah Moore, Dr Alan Home, and Dr Drew Dixon | Body system: Right Upper Extremity, Left Upper Extremity, and Scarring
Moore v State of New South Wales (NSW Police Force) [2024] NSWPICMP 610
Appeal against psychiatric impairment rating scale (PIRS); social functioning and social and recreational activities; whether adequate reasons provided; Wingfoot Australia Partners Pty Ltd v Kocak considered; no scope to review a recording of medical assessment which was not recorded; Held – no error; Medical Assessment Certificate confirmed.
Decision date: 28 August 2024 | Panel Members: Member Parnel McAdam, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric
Hassan v Solutions Personnel Pty Ltd [2024] NSWPICMP 612
Appellant worker suffered injuries to the right shoulder, elbow and lumbar spine; Medical Assessor (MA) assessed the impairment at 14% and allowed 2% for the effects on the activities of daily living (ADL); whether MA erred by failing to assess 3% for ADL asserting capacity to undertake personal care activities has been affected; assessment of ADLs not solely dependent on self-reporting but based on clinical findings and other reports; clinical findings of lumbar spine impairment were modest based solely on dysmetria; MA found appellant had marked exaggeration of pain symptoms based on non-dermatomal complaints of numbness and severe pain in response to touching; Bojko v ICM Property Service Pty Ltd and Vitaz v Westform (NSW) Pty Ltd applied; no medical opinion supporting appellant’s claim for 3% for ADL; Held – no failure to give adequate reasons; Medical Assessment Certificate confirmed.
Decision date: 29 August 2024 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr David Crocker | Body system: Lumbar Spine and Right Upper Extremity
Inner West Council v BFZ [2024] NSWPICMP 613
Respondent worker sustained a psychiatric injury, namely, an aggravation of a pre-existing schizoaffective disorder; Medical Assessor (MA) assessed 24% whole person impairment and deducted one-fourth for pre-existing condition; appellant employer appealed the deduction of one-fourth on the basis that MA failed to consider the contextual and historical evidence, give adequate reasons for the deduction of only one quarter and did not apply Clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021); Held – grounds of appeal not made out; Medical Assessment Certificate confirmed.
Decision date: 29 August 2024 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Worker sustained an injury to her cervical spine while employed by the second respondent in 2011 and a further injury to her lumbar spine in 2018 while employed by the first respondent; Medical Assessor (MA) assessed 4% whole person impairment (WPI) of the cervical spine as a result of the injury in 2011 and 18% WPI of the cervical spine as a result of the injury in 2018; MA deducted one-fifth from the assessment of 18% WPI of the cervical spine as a result of the injury in 2011 which resulted in an assessment of 14% WPI of the cervical spine in respect of the injury on 10 November 2018; appellant submitted that MA erred in not making a deduction for a pre-existing condition prior to the first injury in 2011; MA had considered the evidence relating to a pre-existing condition and his reasoning was adequate; no contribution to the current level of impairment from pre-existing degenerative change; Held – no demonstrable error found; Medical Assessment Certificate confirmed.
Decision date: 3 September 2024 | Panel Members: Member Carolyn Rimmer, Dr Michael Davies, and Dr Margaret Gibson | Body system: Cervical Spine, Left Lower Extremity, and Scarring
Zifovich v GPC Asia Pacific Pty Ltd [2024] NSWPICMP 619
Hearing loss due to occupational noise exposure; worker appealed on basis of the failure to include all losses at all frequencies; appellant’s history of noise exposure in noisy workshops from 1973 to 2021; appellant worked eight hours a day, five to seven days per week with the respondent from 1977 to 2021; prolonged loud noise exposure and the appearance of the audiogram (the decibel hearing levels are progressively worse from 500 Hz to 4000 Hz, consistent with the prolonged nature and duration of occupational noise exposure in this matter); the Appeal Panel was satisfied, on the balance of probabilities, that the calculation of occupational noise induced hearing loss should be made from all of the frequencies from 500 Hz to 4000Hz inclusive; Held – not open to the Medical Assessor (MA) on the evidence to exclude the hearing losses below 2000 Hz as non-work-related and the MA erred in so doing; Medical Assessment Certificate revoked.
Decision date: 3 September 2024 | Panel Members: Member Jane Peacock, Dr Brian Williams, and Dr Robert Payten
Ibrahim v Sellers Fabrics Pty Ltd [2024] NSWPICMP 620
Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made under section 323(1) of 3/10th was correct; Held – deduction incorrect because MA made the deduction on the appellant’s genetic susceptibility, as at the time of injury, to develop a subsequent condition; Medical Assessment Certificate revoked.
Decision date: 3 September 2024 | Panel Members: Member Marshal Douglas, Dr Christopher Grainge, and Dr David Crocker | Body system: Lumbar Spine, Right Upper Extremity, Right Lower Extremity, and Endocrine/Diabetes
Quickturn Pty Ltd v O'Brien [2024] NSWPICMP 621
Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment to the skin as a result of allergy to chemical under Table 8-2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment,5th ed; worker was asymptomatic on the day of examination so that assessment in class 4 was inappropriate; Held – Medical Assessment Certificate revoked.
Decision date: 3 September 2024 | Panel Members: Member Catherine McDonald, Dr Malcolm Linsell, and Dr Tommasino Mastroianni | Body system: Skin
Motor Accidents Merit Review Decisions
Lianos v Allianz Australia Insurance Limited [2024] NSWPICMR 66
Motor Accident Injuries Act 2017 section 3.24(1); Personal Injury Commission Act 2020 sections 42 and 54; merit review; whether cost of treatment and care provided or to be provided to the claimant is reasonable; compliance with directions; power to dismiss proceedings; Held – the application for a merit review is dismissed.
Decision date: 29 August 2024 | Merit Reviewer: Katherine Ruschen
Borrow v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 67
Motor Accidents Injuries Act 2017 (MAI Act); Civil Liability Act (CL Act); claimant’s husband killed in a motorbike accident; claimant sustained psychological or psychiatric injury as a result and made a claim for statutory benefits for pure mental harm; insurer refused to pay any statutory benefits on basis section 30(1) of the CL Act prevented it because there was no “defendant” or “tortfeasor” as the deceased did not owe a duty of care to his wife to avoid causing her injury; Homsi v Homsi relied on by insurer and discussed; claimant self-represented; consideration of section 3.39 of the MAI Act and how the mental harm provisions of the CL Act were to be “modified” to fit a statutory benefits scheme; principles of statutory interpretation and Commission of Taxation v Consolidated Media Holdings Ltd cited; objects of the MAI Act and modification of all of the mental harm provisions considered; Held – section 30(1) of the CL Act should be modified to adjust the terminology used and to allow close family members or witnesses to recover statutory benefits in circumstances where there was no fault on the part of an owner or driver of a motor vehicle or even if the motor accident was caused by the fault of the primary victim of the accident; insurer not entitled to refuse payment of statutory benefits.
Decision date: 3 September 2024 | Merit Reviewer: Belinda Cassidy
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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