Legal Bulletin No. 183

Issued 18 October 2024

Welcome to the one hundred and eighty third 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 Decision

AAI Limited t/as GIO v Evic [2024] NSWSC 1272

Administrative law; statutory construction; whether sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) apply to owner driver injured in single vehicle accident; “wholly or mostly” the fault of the injured person construed to include contributory negligence; error of law established.

Administrative law; remedies; declaration; whether error of law established; whether relief refused in exercise of Court’s discretion; utility of declaration; free standing basis for decision; no foreseeable consequences between parties; no legal controversy between parties.

Decision date: 11 October 2024 | Before: Mitchelmore J

Motor Accidents non-Presidential Member Decisions

Walters v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 543

Motor Accident Injuries Act 2017;claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and (4); claimant was the driver of a motor vehicle involved in a collision at an intersection with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered severe injuries to her lumbar spine and psychological injuries being a major depressive disorder; insurer conceded entitlement to non-economic loss; claimant is 23 years of age at the time of assessment; at the date of the accident claimant was working in hospitality but intended to commence a veterinary nurse course; because of her injuries she had to abandon her studies; since the accident claimant has not been able to engage in either full-time or part-time employment; claim for non-economic loss, past and future economic loss, past and future superannuation; Held – claimant is entitled to damages for non-economic loss, past and future economic loss, past and future superannuation.

Decision date: 1 October 2024 | Member: David Ford

Ratanasirilak v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 545

Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 14 October 2024; insurer wholly admitted liability for the claim; assessment of damages; dispute about causation; Watts v Rake, Purkess v Crittenden, Husher v Husher, Container Terminals Australia Ltd v Huseyin, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol, Allianz Australia Insurance Ltd v Kerr, and Nominal Defendant v Livaja applied; Held – buffer for past and future economic loss assessed at $175,000.00; claimant’s costs assessed at $31,005.70 inclusive of GST.

Decision date: 2 October 2024 | Member: Terence Stern OAM

Workers Compensation non-Presidential Member Decisions

Hazara v VSS Painting Service Pty Ltd [2024] NSWPIC 546

Workers Compensation Act 1987; entitlement to weekly compensation in the section 38 period; insurer assisted worker to obtain apprenticeship under which his hours are casual; obligations of apprenticeship contract; whether worker is likely to continue indefinitely to be incapable of undertaking further additional work or work that would increase his current weekly earnings; Held – award for the applicant for weekly compensation.

Decision date: 2 October 2024 | Member: Catherine McDonald

Shanahan v SHCB Constructions Pty Ltd & Ors [2024] NSWPIC 547

Death claim; dispute in respect of the dependency of the applicant’s son of the deceased; Canute v W A Pickles (NSW) Pty Ltd ATF The William Alan Pickles Family Trust & Ors, Rose-Barnett & Ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd, TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors, BFG v Polyfoam (Sydney) Pty Ltd & Ors, and Slater v Newman Bros (Sawmill) Pty Ltd discussed and applied; Held – deceased stood “in loco parentis” to the second respondent; determination of dependency, apportionment, and payment of death benefit, interest and management fee.

Decision date: 2 October 2024 | Principal Member: Glenn Capel

Johns v Deaves & Anor [2024] NSWPIC 549

Claim for permanent impairment compensation in relation to injury suffered to left leg and consequential scarring; applicant suffered an injury while mustering cattle at the respondents’ property on 23 April 2018; he alleges at that time he was a worker for workers compensation purposes; the fact of the injury is not in issue, however, the respondents deny the applicant was a worker and instead allege the applicant was a friend who regularly attended and stayed at the farm on a weekend and carried out unpaid farm work; parties agreed that if there was a finding in favour of the applicant on the issue of worker, the matter would be referred for medical assessment; oral evidence was taken in the matter, including that of the respective parties and of Mr Hellmann, the applicant’s former employer; Mr Hellmann’s evidence included a recounting of a conversation he had with the applicant several months before the injury in which the applicant told him he was working for the respondents on a weekend and being paid in cash by them for the work performed; Held – as an independent witness whose credit was not sought to be impugned, Mr Hellmann’s evidence is entitled to significant weight; Mr Hellmann’s evidence is broadly consistent with the applicant’s version of events and supports a finding the applicant was a worker in the employ of the respondents; on balance, the evidence discloses the applicant was an employee of the respondents and that he suffered an injury in the course of that employment; matter remitted to the President for referral for medical assessment.

Decision date: 3 October 2024 | Member: Cameron Burge

Shrestha v William Inglis & Son Ltd [2024] NSWPIC 550

Workers Compensation Act 1987;psychological injury; section 11A defence; claim for weekly benefits and medical expenses; factual issues considered; Held – respondent has not discharged its onus; award for applicant.

Decision date: 3 October 2024 | Member: Michael Wright

Cahill v Hume Community Housing Associated Company Ltd [2024] NSWPIC 551

Workers Compensation Act 1987 (1987 Act); applicant claims weekly compensation and medical and related treatment expenses payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; applicant’s claim is declined with defence raised under section 11A with respect to performance appraisal and/or discipline, and capacity for work in issue; Held – the applicant’s injury is not wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal and/or discipline; the applicant has had no current work capacity during the period between 29 December 2023 and 11 March 2024; the applicant has had a current work capacity for suitable employment from 12 March 2024, with ability to earn $700 per week; the applicant has entitlement to weekly compensation payable under section 37 from 29 December 2023 ongoing in accordance with the 1987 Act.

Decision date: 3 October 2024 | Member: Jacqueline Snell

Shead v Accuro Home and Community Care Pty Ltd [2024] NSWPIC 553

Claim for permanent impairment compensation in relation to cervical and thoracic spine injuries; cervical spine injury admitted; thoracic spine declined on basis the symptoms are referred from the cervical spine; claim for provision of medicinal cannabis; opposed as not reasonably necessary; Held – the applicant suffered an injury by way of aggravation to underlying pathology in her thoracic spine in the accident at issue, such finding supported by her undergoing a scan of only that body system a mere three days post-injury; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment; the medicinal cannabis is reasonably necessary as a result of the applicant’s injury; the fact other treatment modalities are available but not preferred does not render the cannabis unreasonable, particularly when the applicant’s treating pain specialist recommends it; respondent to pay the costs of and incidental to a six month trial of medicinal cannabis.

Decision date: 4 October 2024 | Member: Cameron Burge

Ride v Anne Reid Property Management Pty Ltd ATF McInnes Family Trust [2024] NSWPIC 554

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for section 66 of the 1987 Act for injury to lumbar spine and consequential injuries to the left lower extremity (left hip), right lower extremity (right hip), left lower extremity (left ankle/left hindfoot) and scarring; respondent disputes consequential injuries to right hip, left hip and left ankle/left hindfoot; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence; consideration of whether the consequential injuries developed as a result of the injury to the lumbar spine sustained by the applicant; Kooragang Cement Pty Ltd v Bates; Kumar v Royal Comfort Bedding Ltd; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan; Moody v Evolution Traffic Control Pty Ltd; Moon v Conmah Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timber Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; Jaffarie v Quality Castings Pty Ltd; Mason v Demasi; Roads and Traffic Authority (NSW) v Malcolm; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd; Australian Security and Investments Commission v Rich; Frost v Kourouche; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes; Held – the applicant has developed consequential conditions in his right hip, left hip and left ankle/left hindfoot as a result of the injury sustained by the applicant to his lumbar spine on 16 December 2020; matter remitted to the President for referral to a Medical Assessor pursuant to section 321 of the 1998 Act for assessment of the whole person impairment of the applicant’s lumbar spine, scarring, left lower extremity (left hip), right lower extremity (right hip) and left lower extremity (left ankle/left hindfoot) due to the injury sustained on 16 December 2020.

Decision date: 4 October 2024 | Member: Anne Gracie

On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 555

Workers Compensation Act 1987; Personal Injury Commission Act 2020 (PIC Act); request for reconsideration of Certificate of Determination providing for payment of lump sum payable pursuant to section 25(1) of the 1987 Act, apportioned to first, second and third respondents, and interest, to those respondents; first and second respondents have lodged appeal against decision; applicant unable to pay awards until appeal is determined; applicant seeks orders that award monies be paid to NSW Trustee and Guardian; first, second, and third respondents did not seek to make submissions in respect of the request for reconsideration; consideration of section 57(1) of the PIC Act; Samuel v Sebel Furniture Limited; Railcorp NSW V Registrar of the WCC of NSW; Held – decision reconsidered; applicant ordered to pay lump sum and interest to NSW Trustee and Guardian, to be held on trust for first, second and third respondents pending outcome of appeal.

Decision date: 4 October 2024 | Senior Member: Kerry Haddock

Anderson v Campbelltown City Council [2024] NSWPIC 556

Workers Compensation Act 1987 (1987 Act); claim for weekly compensation pursuant to sections 33, 36 and 37, and medical and related expenses pursuant to section 60; psychological injury; employer raised section 11A(1) defence; Held – applicant sustained a primary psychological injury in the nature of a disease with a deemed date of injury of 15 February 2024, arising out of and in the course of her employment with the respondent; the applicant’s employment was the main contributing factor to that injury, pursuant to section 4(b)(i); the applicant did not sustain an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to section 4(b)(ii); the respondent has not established a defence pursuant to section 11A of the 1987 Act; the applicant had no current work capacity as a result of the psychological injury from 15 February 2024 to 29 August 2024; the respondent to pay weekly compensation pursuant to sections 33, 36 and 37; a credit is to be applied in respect of sick leave and wages that the respondent paid the applicant during the relevant periods; a credit is not to be applied in respect of ‘special wage payments’ that the respondent paid the applicant during the relevant periods; liberty to apply within 14 days in respect of calculation of the weekly compensation amounts; respondent to pay the applicant expenses in accordance with section 60 upon production of accounts, receipts or Medicare Notice of Charge.

Decision date: 8 October 2024 | Member: Karen Garner

Motor Accidents Medical Review Panel Decisions

Dewar v Allianz Australia Insurance Limited [2024] NSWPICMP 690

Review of medical assessment; threshold injury; passenger in motor vehicle; adjustment disorder diagnosed; medical dispute; prior history of chronic low back pain; prior bilateral total knee replacement; left clavicle pain; questioning about neurological symptoms; analysis of range of motion; mechanics of injury to supraspinatus muscle and tendon; presence of tendinopathy; anticular surface tear not caused by motor vehicle accident; no injuries to lumbar thoracic spine; Held – threshold injury confirmed.

Decision date: 3 October 2024 | Panel Members: Member Hugh Macken, Dr Michael Couch, and Dr Clive Kenna | Injury module: Spine, Upper Limb, and Lower Limb

Martin v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 691

Motor Accident Injuries Act 2017; physical injury to right shoulder and cervical spine caused by rear-end accident in June 2021; assessment of permanent impairment and treatment dispute; injuries to cervical spine and right shoulder caused by motor accident; no relevant principles; claimant fell in 2023 injuring left shoulder due to vertigo; absence of vertigo symptoms following motor accident; other potential causes including severe COVID-19 and cerebrovascular disease; finding that left shoulder condition not caused by motor accident; treatment disputes; lengthy past physiotherapy and exercise physiological treatment; future treatment not necessary; occupational therapy assessment undertaken; where treatment considered reasonable and necessary and caused by motor accident; Held – permanent impairment assessed at less than 10%; treatment disputes confirmed as per original Medical Assessor; Medical Assessment Certificate confirmed.

Decision date: 3 October 2024 | Panel Members: Principal Member John Harris, Dr David Gorman, and Dr Leslie Barnsley | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Maraseh [2024] NSWPICMP 693

Motor Accident Injuries Act; insurer’s application for review of threshold injury decision; injuries assessed by Medical Assessor Home were cervical spine, lumbar spine and a right shoulder tear; examination did not demonstrate cervical or lumbar radiculopathy at time of re-examination and review of records did not demonstrate radiculopathy at any time; claimant had previous right shoulder condition with tendon tear measured by ultrasound; post-accident MRI indicated a different measurement but Medical Review Panel not satisfied previous tear was further torn; Held – claimant’s injuries were threshold injuries; no matter of principle.

Decision date: 4 October 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Alan Home | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Jacquot [2024] NSWPICMP 694

Review of decision of Medical Assessor (MA) Berry dated 30 November 2023 for assessment of whole person impairment (WPI); claimant involved in accident on 29 September 2020 when riding his motorbike which collided with the insured car crossing in front of his path; claimant injured right shoulder, right leg and knee with fractures, left knee, left hip and buttocks; insurer submitted that the claimant had a pre-existing condition of osteoarthritis and his injuries following the accident were a temporary aggravation; the claimant clearly stated on medical examination that he was asymptomatic at the time of the accident from any pre-existing condition for which he might have been previously treated; Medical Review Panel (Panel) satisfied following examination that the claimant had severe cruciate laxity and patellofemoral crepitus which was concordant with the opinions of Dr Assem, Dr Dixon, and Dr Wernecke as well as MA Berry and contrary to the opinion of Dr Allen for the insurer whose findings were not followed by the Panel; MA Berry assessed WPI of the claimant at 19% however WPI was assessed by the Panel at 13%; Held – Panel revoked the certificate of MA Berry and finding WPI of the claimants right knee at 10% together with crepitus at 2% and 1% for the right shoulder total 13% WPI.

Decision date: 4 October 2024 | Panel Members: Member Alexander Bolton, Dr Michael Couch, and Dr Tai-Tak Wan | Injury module: Upper Limb and Lower Limb

Gaponenko v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 696

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 12 May 2022; Medical Assessor determined claimant’s permanent impairment at 7%; the Medical Review Panel conducted its own examination and confirmed a 7% whole person impairment; Held – Medical Assessment Certificate affirmed.

Decision date: 4 October 2024 | Panel Members: Member Terence Stern OAM, Dr Drew Dixon, and Dr Thomas Rosenthal | Injury module: Spine

Allianz Australia Insurance Limited v Govinda [2024] NSWPICMP 697

Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 5 June 2019; a medical dispute arose as to whether the psychological injury sustained was a threshold injury; the Medical Review Panel (Panel) conducted an examination and considered the claimant’ s history, the clinical findings on examination, the reports of treating practitioners and other relevant materials produced and the DSM-5 criteria; the Panel determined that the diagnosis, namely, a Generalised Anxiety Disorder was not a threshold injury; Held – Medical Assessment Certificate affirmed.

Decision date: 4 October 2024 | Panel Members: Member Terence Stern OAM, Dr Michael Hong, and Dr Gerald Chew | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Al-Khameesi [2024] NSWPICMP 699

Motor Accident Injuries Act 2017; claimant was driving a car and wearing a seatbelt when his car was rear-ended by another car; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s broken tooth revoked; on review, the Medical Review Panel (Panel) found that the injuries to the claimant’s tooth 13 with Ellis Class I fracture were not caused by the motor accident; Panel relied upon evidence of another previous motor accident showing that the claimant had previously reported a broken tooth; Panel found that the broken tooth was not caused, exacerbated or become symptomatic as a result of the subject motor vehicle accident.

Decision date: 8 October 2024 | Panel Members: Member Ray Plibersek, Dr Paul Curtin, and Dr Michael Couch | Injury module: Dental Injury

Workers Compensation Medical Appeal Panel Decisions

Jones v CSCPC Pty Ltd [2024] NSWPICMP 688

Psychological Injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under four of the psychiatric impairment rating scale (PIRS) categories of travel, social functioning concentration, persistence and pace and employability; Medical Appeal Panel found error in respect of the category of concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

Decision date: 2 October 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Qantas Airways Ltd v Southwell [2024] NSWPICMP 689

Workplace Injury Management and Workers Compensation Act 1998; assessment of back injury; remitted after second judicial review decision; assessment of persisting radiculopathy after surgery; section 323 deduction; consideration of evidence with respect to alleged pre-existing conditions – Held – Medical Assessment Certificate confirmed.

Decision date: 2 October 2024 | Panel Members: Member Catherine McDonald, Dr Mark Burns, and Dr Todd Gothelf | Body system: Lumbar Spine and Skin

Slade v Woolworths Ltd [2024] NSWPICMP 692

Assessment of the upper extremities; worker appealed submitting insufficient findings and inadequate reasons for failing to assess the elbows; the Medical Appeal Panel (Panel) found error and a re-examination was considered necessary in the circumstances; Held – applying the correct criteria to the findings of Medical Assessor who conducted the re-examination, the Panel found that there is no rateable impairment for the elbows. MAC confirmed.

Decision date: 3 October 2024 | Panel Members: Member Jane Peacock, Dr David Crocker, and Dr Doron Sher | Body system: Left Upper Extremity and Right Upper Extremity

Lowery v ABC Building Pty Ltd [2024] NSWPICMP 698

Workplace Injury Management and Workers Compensation Act 1998;appeal from finding of 6% whole person impairment (WPI) by claimant who fell 3 metres when scaffolding collapsed under him;  whether Medical Assessor (MA) had failed to comply with section 322; whether MA had given adequate reasons; respondent conceded the appeal; claims were for cervical spine, right upper extremity, right lower extremity central and peripheral nerve damage, and scarring; MA found elbow and shoulder injuries had not reached maximum medical improvement but assessed the remaining injuries, thus infringing section 322(2) that impairments resulting from the same injury are to be assessed together; MA found inconsistency on measuring range of motion but did not explain why the alternative options within the Guides in such a case had not been used; MA commented that no evidence of a cervical spine injury identified; Marks v Secretary, Department of Communities and Justice (No 2) referred to; Held – Medical Assessment Certificate revoked; claimant re-examined and 28% WPI certificate issued.

Decision date: 4 October 2024 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr John O'Neill | Body system: Cervical Spine, Right Upper Extremity, Right Lower Extremity, Central and Peripheral Nervous System, and Scarring

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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