Legal Bulletin No. 184
This bulletin was issued on 25 October 2024
Issued 25 October 2024
Welcome to the one hundred and eighty fourth 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 Decision
Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICPD 62
The test to establish injury simpliciter in accordance with s 4(a) and (b) and ss 15 and 16 of the Workers Compensation Act 1987; Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 considered; whether finding of “injury” involves question of law; whether Member responded to allegation of “injury”; whether it was open to find “disease” on the evidence in the case; injury simpliciter and disease not mutually exclusive; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 considered and applied; Held – the Certificate of Determination dated 9 February 2024 is revoked; the matter is remitted to a different non-presidential Member for re-determination.
Decision date: 15 October 2024 | Before: Acting Deputy President Paul Sweeney
Motor Accidents non-Presidential Member Decisions
QBE Insurance (Australia) Limited v Rudzis [2024] NSWPIC 534
Motor Accidents Injuries Act 2017; proposed settlement; claimant 72-years-old; involved in a serious head-on crash; liability wholly admitted; claimant trapped before extrication and flown to hospital via helicopter; injuries included loss of consciousness; fractured skull and cervical spine, multiple rib fractures, and pelvic trauma; claimant had been retired for many years; Held – settlement approved; $250,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the injuries and age of the claimant.
Decision date: 26 September 2024 | Member: Elyse White
Allianz Australia Insurance Limited v Khoshaba [2024] NSWPIC 544
Motor Accidents Injuries Act 2017; settlement approval in the sum of $22,000; 67-year-old male; no entitlement to non-economic loss, small closed period past economic loss, and small buffer future economic loss; injuries include resolved sternal fracture, undisplaced fracture right 2nd and 3rd rib, small hiatus hernia and minor gravitational atelectsasis; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23.
Decision date: 2 October 2024 | Member: Shana Radnan
Allianz Australia Insurance Limited v Daries [2024] NSWPIC 558
Motor Accident Injuries Act 2017; settlement approval under section 6.23; shoulder injury requiring surgery; labral tear; articular cartilage injury; biceps injury evulsion; surgical procedure; excellent recovery; post-accident promotions; pay rises; past economic loss; assumptions as to most likely future circumstances; future economic loss; no entitlement to non-economic loss; Held – settlement approved.
Decision date: 9 October 2024 | Member: Hugh Macken
Allianz Australia Insurance Limited v Dizon [2024] NSWPIC 561
Motor Accident Injuries Act 2017; settlement approval under section 6.23 in the sum of $271,467.21; 78-year-old male; compensation to relatives claim; past financial dependency $70,607.21; future financial dependency $65,702; past and future loss of services 10 hours weekly; vicissitudes 30%; other medical conditions impacting on life expectancy; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 10 October 2024 | Member: Shana Radnan
AAI Limited t/as GIO v Hamson [2024] NSWPIC 563
Motor Accident Injuries Act 2017; settlement approval under section 6.23 in the sum of $103,637.45; 47-year-old female; no entitlement to non-economic loss; 4% whole person impairment; small closed period past economic loss $28,637.45 and buffer future economic loss of $75,000; injuries to right shoulder requiring surgical intervention on two occasions now resolved and minor scarring; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 11 October 2024 | Member: Shana Radnan
Workers Compensation non-Presidential Member Decisions
Moussa v Jeld-Wen Australia & Anor [2024] NSWPIC 486
Workers Compensation Act 1987; claim for whole person impairment relating to industrial deafness; self-insurer seeking apportionment with reference to sections 22 and 22A claiming there are two dates of injury relative to the industrial deafness claim (section 17); Held – section 22 does not apply to industrial deafness claims and there cannot be two injurious events for such claims and so apportionment cannot be enlivened; authorities of Edmed, Turton and Kolak have no application to the present case.
Decision date: 2 September 2024 | Member: Diana Benk
Yan v Axis Commercial Pty Ltd [2024] NSWPIC 539
Work capacity dispute; claim that pre-injury average weekly earnings greater because applicant worked for cash doing additional gyprocking work to that he earned whilst working for the respondent; claimant unable to support that assertion; tax records unhelpful; Held – work capacity decision confirmed.
Decision date: 1 October 2024 | Member: John Wynyard
Al Khaldy v ES Formwork Pty Ltd [2024] NSWPIC 557
Workers Compensation Act 1987 (1987 Act);section 4(a); injury to the cervical spine, bilateral shoulders, thoracic spine, lumbar spine and right knee disputed; entitlement to weekly benefits disputed; section 60 expenses disputed; PIAWE disputed; contemporaneous evidence; histories in medical records; clause 9 of Schedule 3 to the 1987 Act current work capacity and no current work capacity; section 32A suitable employment; clause 2 of Schedule 3 to the 1987 Act calculation of PIAWE; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Onassis and Calogeropoulos v Vergottis, Davis v Council of the City of Wagga Wagga, King v Collins, Mason v Demasi, Department of Aging, Disability and Home Care v Findlay and Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – the applicant suffered injuries to the cervical spine and the lumbar spine arising out of or in the course of his employment with the respondent on 15 December 2022 within the meaning of sections 4(a) and 9A; the applicant suffered a consequential psychological condition as a result of the injuries he sustained in the course of his employment with the respondent on 15 December 2022; the applicant has had no current work capacity from 15 December 2022 within the meaning of clause 9 of Schedule 3 to the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent on 15 December 2022; the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 15 December 2022 under section 60.
Decision date: 2 October 2024 | Member: Anthony Scarcella
Zulamoska v ISS Property Services Pty Ltd [2024] NSWPIC 552
Workers Compensation Act 1987; applicant worked for 20 years to age 70 as a cleaner of a primary school alleging disease injury to her left knee; claim for weekly compensation and cost of, and incidental to, left knee total knee replacement; “injury” and whether the knee replacement was reasonably necessary treatment as a result of injury were disputed; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services, and Diab v NRMA Ltd applied; Held – pursuant to section 4(b)(ii) the applicant sustained an injury to her left knee with her employment with the respondent being the main contributing factor to the aggravation of disease; pursuant to section 60 the treatment proposed of left total knee replacement is reasonably necessary treatment as a result of injury in the course of employment with the respondent; the respondent is to pay for the costs of and incidental to the left knee replacement surgery; the respondent is to pay the claimed incurred section 60 expenses on production of accounts, receipts and/or Medicare Notice of Charge at the SIRA gazetted rates; the respondent is to pay the applicant weekly compensation pursuant to section 37; the claim for lump sum compensation is withdrawn.
Decision date: 3 October 2024 | Principal Member: Josephine Bamber
Mannix v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 559
Workers Compensation Act 1987; consequential condition; sections 33, 37, 37 and 60; accepted injury to the left thumb; accepted consequential condition of the left shoulder; disputed consequential condition of the cervical spine; claim for weekly compensation pursuant to sections 36 and 37; claim for costs of and incidental to cervical spine surgery recommended by Dr Lim; dispute as to incapacity pursuant to section 33; dispute pursuant to section 60 as to whether the cervical spine surgery proposed by Dr Lim is reasonably necessary due to injury; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Ltd, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, Mason v Demasi and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant has sustained a consequential condition of the cervical spine as a result of the accepted injury to the left thumb; pursuant to section 60 the proposed cervical spine surgery being a two level ACDF of C5/6 and C6/7 proposed by Dr Lim is reasonably necessary as a result of an injury; the applicant had no current work capacity from 27 April 2022 to 30 June 2024.
Decision date: 9 October 2024 | Member: John Turner
Singh v David Jones Pty Ltd [2024] NSWPIC 560
Workers Compensation Act 1987; psychological injury which has resulted in 22% whole person impairment accepted; claim pursuant to section 60 for cost of therapy dog and ancillary expenses; respondent disputed reasonable necessity of proposed treatment; Diab v NRMA Ltd, EMI (Australia) Ltd v Bes and State of New South Wales (Central Coast Local Health District) v Bunce considered; Held – the proposed treatment is reasonably necessary medical treatment as a result of the injury; award for the applicant.
Decision date: 9 October 2024 | Senior Member: Kerry Haddock
Fiddes v Secora APII Pty Ltd & Ors [2024] NSWPIC 564
Workers Compensation Act 1987; claim for lump the lump sum death benefit pursuant to section 25; the deceased travelled to regional New South Wales for work; discussion as to the finding of inferences, which included poor dietary intake and lack of sleep arising from his work duties together with plane travel; discussion of sections 9A and 9B; acceptance of medical opinion so far as causation was concerned, where no competing medical evidence is relied upon; Held – the applicant has satisfied the requirements of both sections 9A and 9B.
Decision date: 11 October 2024 | Senior Member: Elizabeth Beilby
Ilin v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 565
Workers Compensation Act 1987; claim for weekly compensation and compensation pursuant to section 60 for the costs of, and incidental to, right shoulder surgery; whether injury to right shoulder due to repetitive data entry over a period of approximately 10 years; delay in reporting a work-related cause for the shoulder symptoms; whether symptoms were emanating from cervical pathology; Held – the applicant discharged her onus of establishing on the balance of probabilities that she had sustained an injury to her right shoulder to which employment with the respondent was the main contributing factor; the surgery was reasonably necessary as a result of injury; the applicant was totally incapacitated for work following the surgery as claimed; awards in favour of the applicant.
Decision date: 11 October 2024 | Member: Rachel Homan
Robards v Health Management & Administration Solutions Pty Ltd [2024] NSWPIC 566
Claim for medical expenses; applicant seeks payment of spinal fusion in relation to accepted injury; respondent alleges surgery not reasonably necessary as a result of the injury; applicant suffered an injury by way of aggravation to underlying pathology in her lumbar spine in May 2017; since that time, she has undertaken myriad of conservative treatment to little or no effect; her treating surgeon has indicated a spinal fusion is reasonably necessary as a result of the applicant’s injury; that view is supported by no fewer than two other treating neurosurgeons and an IME; the respondent relies on IME opinion to assert the surgery is not indicated, and finds support in the opinion of a further treating surgeon, whose view was provided in 2019; Held – the surgery is reasonably necessary as a result of the accepted injury; Diab v NRMA Limited applied, Bartolo v Western Sydney Area Health Service followed; the respondent is to pay the costs of, and incidental to, the proposed surgery.
Decision date: 11 October 2024 | Member: Cameron Burge
Wood v Port Stephens Council [2024] NSWPIC 567
Workers Compensation Act 1987; claim for medical treatment expenses; accepted injury to cervical spine on 7 December 2022; proposed cervical spine discectomy and fusion surgery disputed; alleged injury to lower back disputed; Held – the proposed cervical spine surgery is reasonably necessary as a result of injury, the applicant sustained an aggravation of his lumbar spine disease as a result of injury on 7 December 2022.
Decision date: 14 October 2024 | Member: Fiona Seaton
Alm v Nimue Skin Pty Ltd [2024] NSWPIC 568
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation; prior Medical Assessment Certificate (MAC); section 322A; application for reconsideration of MAC; status of prior Certificate of Determination not responding to claim made; Pollard v Toll Helicopters NSW; Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley; DJL v Central Authority; Fairfield City Council v McCall (No 2); Samuel v Sebel Furniture Limited; Sleiman v Gadalla Pty Ltd; Held – Certificate of Determination a nullity; reconsideration application declined; appeal under section 327 preferable to exercise of discretion for reconsideration.
Decision date: 15 October 2024 | Member: Mitchell Strachan
Nightingale v Subee Pty Ltd [2024] NSWPIC 569
Undisputed injury; treatment sought in the form of a trial of CBD oil; disputed by the respondent on the basis it is not reasonably necessary; Held – award for the applicant.
Decision date: 15 October 2024 | Member: Jane Peacock
Claim for the proposed cost of lumbar spinal surgery; medical opinion considered; Margaroff v Cordon Bleu Cookware Pty Ltd, Diab v NRMA Ltd and Rose v Health Commission (NSW) considered; Held – award for the applicant.
Decision date: 15 October 2024 | Member: Michael Wright
Motor Accidents Medical Review Panel Decisions
Proksch v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 700
Motor Accident Injuries Act 2017; physical injury; assessment of permanent impairment; head-on collision; serious right leg fractures; evolution of fractures from displaced to undisplaced; atrophy present in right lower limb; scarring from surgery assessed; onset of symptoms in other limb due to altered gait; discussion of paper referred by insurer; long-term altered gait can aggravate osteoarthritis in other limb supported by findings in paper; claimant had greater than 12 months altered gait causing aggravation of pre-existing osteoarthritis; assessment of left knee; no loss of range of motion; no ligament instability; no X-rays showing loss of cartilage interval; pre-accident X-rays showed significant narrowing of medial joint compartment; no assessable loss of left knee; Held – impairment assessed at less than 10%; Medical Assessment Certificate confirmed.
Decision date: 27 September 2024 | Panel Members: Principal Member John Harris, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Lower Limb and Minor Skin
Neamah v AAI Limited t/as AAMI [2024] NSWPICMP 685
Lumbar spine; L5/S1 disc herniation; back and sciatica; reports of radiculopathy; loss of symmetry and reflexes; positive sciatic nerve root; tension signs; sensory loss; muscle atrophy; muscle weakness; radiculopathy present has been present since accident; no requirement that radiculopathy be present at the time of assessment; consistent history and documentation; lumbar disc injury; Held – Medical Assessment Certificate revoked.
Decision date: 30 September 2024 | Panel Members: Member Hugh Macken, Dr Michael Couch, and Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Georgiadis [2024] NSWPICMP 695
Review of decision of Medical Assessor (MA) Grainge who assessed the claimant as having a 44% whole person impairment (WPI) but did not consider whether he had suffered a threshold injury with the claimant having been diagnosed as having a Non-Specific Interstitial Pneumonitis (NSIP); claimant had an accident on 19 April 2020 when he was riding a pushbike which collided with the insured car causing the claimant to fall off his bike and onto his left shoulder; claimant attended Bankstown Hospital and was then transferred to St George Hospital where he underwent rotator cuff surgery and following this he developed NSIP; claimant has had a documented lung condition since 2000 and is currently awaiting a double lung transplant; issue of causation and whether the surgery brought about NSIP which had also occurred following surgery in 2017; discussion of the claimant’s pre-accident medical condition and causation of an NSIP following surgery to his left shoulder after the accident; Medical Review Panel (Panel) concluded that the shoulder surgery which was a necessary consequence of the accident did bring about the condition of NSIP; Panel noted that surgery and anaesthesia can aggravate pulmonary interstitial pneumonitis; Held – the respiratory injury suffered by the claimant involved the lung parenchyma which is not a supporting structure but part of the lung which is an organ and this was not a soft tissue injury; the claimant has suffered a non-threshold injury and has a WPI assessment of 44%; certificate of MA Grainge revoked.
Decision date: 4 October 2024 | Panel Members: Member Alexander Bolton, Dr Mark Burns, and Dr Margaret Gibson | Injury module: Respiratory System
QBE Insurance (Australia) Limited v Azar [2024] NSWPICMP 701
Motor Accident Injuries Act 2017; threshold injury; thoracic spine; lumbar spine; cervical spine; disc protrusions; claimant suffered injury in a motor vehicle accident on 24 May 2022; Medical Assessor (MA) Assem certified injuries to the cervical spine and lumbar spine were soft tissue injuries and therefore threshold injuries; he certified disc protrusions at T7/8 and T8/9 were not threshold injuries; application for review by insurer on basis claimant not demonstrate two clinical signs to support diagnosis of radiculopathy and therefore injury to thoracic spine was a threshold injury; Held – no dispute soft tissue injuries to cervical and lumbar spine were threshold injuries; not necessary to find radiculopathy where presence of herniated discs means there has been a rupture of the fibrocartilage around both discs; Momand v Allianz Australia Insurance Limited cited; injury to thoracic spine is not a soft tissue injury and not a threshold injury; certificate of MA Assem affirmed.
Decision date: 9 October 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine
AAI limited t/as Suncorp Insurance v Proctor [2024] NSWPICMP 707
Motor Accidents Compensation Act 1999; the claimant was involved in a motor vehicle accident north of Grafton; claimant was driving along the Pacific Highway in a northerly direction; claimant was wearing a seatbelt; the insured vehicle crossed the median strip and collided head-on with the claimant’s vehicle; claimant was knocked unconscious; claimant was transported by ambulance to Lismore Base Hospital where she was admitted and remained for a few days; the insurer admitted liability for the claim; medical dispute as to whole person impairment (WPI); insurer initially disputed that the accident caused an L4 endplate fracture; insurer conceded 10% WPI for cervical and lumbar spine but maintained it was entirely pre-existing contrary to its own expert evidence; parties agreed re-examination not necessary; Held – Medical Review Panel (Panel) accepted opinion of insurer’s expert radiologist that end-plate fracture caused by accident; Panel confirmed Medical Assessment Certificate and Combined Certificate for 12% WPI.
Decision date: 10 October 2024 | Panel Members: Member Gary Victor Patterson, Dr Mohammed Assem, and Dr Christopher Oates | Injury module: Spine, Upper Limb, Lower Limb, and Digestive System
Wang v QBE Insurance (Australia) Limited [2024] NSWPICMP 708
Certificate of Determination; threshold injury; reasonable cause to suspect medical assessment was incorrect in a material respect; delay in mentioning lumbar spine pain; neck pain radiated to the left upper trapezius and shoulder; acupuncture and physiotherapy treatment; multiple certificates of capacity; cervical pathology as being long standing and degenerative in nature; pre-existing condition rather than post traumatic condition; no cervical radiculopathy; no lumbar radiculopathy; no evidence of injury to nerves; no complete or partial rupture of tendons, ligaments, menisci or cartilage; soft tissue injury cervical spine; soft tissue injury lumbar spine; Held – finding of threshold injury confirmed; Medical Assessment Certificate confirmed.
Decision date: 10 October 2024 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Mohammed Assem | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
QBE Insurance (Australia) Limited v Galinato [2024] NSWPICMP 711
Motor Accident Injuries Act 2017; claimant was injured in a motor accident on 3 December 2020 when she was stationary in a vehicle waiting for the traffic to clear before turning; her vehicle was struck in the rear; airbags did not deploy; ambulance and police officers were not called; claimant says she experienced low back pain within a few days; claimant also says she experienced no cervical pain until some 9 days after the accident, when pain was felt in the neck, left shoulder and left arm; claimant suffered cervical spine injuries in 2 previous rear-end motor vehicle collisions; the insurer admitted liability for the claim; treatment dispute regarding request for consultation with neurosurgeon/neurologist before possible further cervical surgery; insurer refused to fund the consultation on basis that it related to pre-existing condition for which claimant underwent cervical fusion in 2017; Held – Medical Review Panel satisfied that motor accident was causal and that requested specialist consultation both reasonable and necessary; Medical Assessment Certificate confirmed.
Decision date: 11 October 2024 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr David McGrath | Injury module: Spine
Obaidi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 712
Review of certificate of Medical Assessor (MA) Home dated 1 March 2024 who assessed the claimant as having 5% whole person impairment; the claimant was involved in an accident on 18 April 2016 when her car was rear-ended by the insured car; airbags were not deployed and the claimant was able to drive her car home; claimant sought medical treatment the day following the accident and reported neck and shoulder pain but the MA had incorrectly noted that this was not complained of and treated until six weeks post-accident; claimant had sought treatment of her shoulders six months before the accident but was asymptomatic at the time of the accident; claimant was treated for shoulder pain in November 2015 but thereafter has no further treatment for the accident in April 2016 and the Medical Review Panel was satisfied that in this regard she was asymptomatic; Held – Panel was satisfied that the claimant did make a complaint of shoulder injury the day following the accident and despite a low impact occurring, injuries complained by her were reasonable and, on the balance of probabilities, caused by the accident; Medical Assessment Certificate revoked.
Decision date: 14 October 2024 | Panel Members: Member Alexander Bolton, Dr Thomas Rosenthal, and Dr Shane Moloney | Injury module: Spine and Upper Limb
AAI Limited t/as AAMI v Jones [2024] NSWPICMP 713
Motor Accident Injuries Act 2017 (MAI Act); threshold injury dispute; claimant’s vehicle was turning right at traffic lights; driver at fault failed to stop at a red light and collided with the claimant’s vehicle (T-bone collision); significant high speed impact causing the claimant’s vehicle to spin and come to a halt some 100 metres from the point of impact; Medical Assessor (MA) Cameron certified that injury to ankle, arms, cervical spine, head, knees, lumbar spine, skin, thoracic spine and wrist are threshold injuries; MA also certified that injury to both shoulders are not threshold injuries for the purpose of the MAI Act; Medical Review Panel (Panel) required original ultrasound scans of both shoulders pre-dating accident; delay in production of scans; Held – Panel not satisfied that the scans showed any actual or clinically significant change in shoulder pathology caused by the accident; Medical Assessment Certificate revoked.
Decision date: 15 October 2024 | Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, Brain Injury, and Skin
Insurance Australia Limited t/as NRMA Insurance v Warda [2024] NSWPICMP 714
Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor Nagesh’s assessment of 15% whole person impairment (WPI); claimant sustained physical injuries in accident on 10 March 2021; claimant described chronic pain from soft tissue injuries to her lower back and shoulders and has become depressed due to her pain; claimant’s history at the re-examination was that it was her physical injuries that prevented her from engaging in activities at home and outside the home; Held – Medical Review Panel diagnosed a persistent depressive disorder caused by the accident which resulted in 7% WPI; Medical Assessment Certificate revoked. No issue of principle.
Decision date: 15 October 2024 | Panel Members: Member Belinda Cassidy, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Glen Innes Severn Council v Faint [2024] NSWPICMP 702
Workplace Injury Management and Workers Compensation Act 1998; assessment of whole person impairment after bilateral knee replacements; Medical Assessor made section 323 deduction of 1/10th; analysis of contemporaneous evidence as to arthritis; Cole v Wenaline Pty Ltd, Secretary, Department of Communities and Justice v Lewandowski; Southwell v Qantas Airways Limited; Medical Assessment Certificate revoked.
Decision date: 9 October 2024 | Panel Members: Member Catherine McDonald, Dr Christopher Oates, and Dr Doron Sher | Body system: Right Lower Extremity, Left Lower Extremity, and Scarring
Finch v N. Moit & Sons (NSW) Pty Ltd [2024] NSWPICMP 703
Appeal by claimant who suffered a serious hand injury and was seeking a lump sum for the primary psychological consequences thereof; whether Medical Assessor gave adequate reasons for his assessment of 8% whole person impairment; Held – reasons inadequate regarding self-care and social and recreational activities; re-examination ordered; Medical Assessment Certificate revoked.
Decision date: 9 October 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
Schofield v TAFE NSW [2024] NSWPICMP 704
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories and error in failing to make an allowance for the effects of treatment; Held – assessments in PIRS categories upheld; Medical Appeal Panel found error in failing to make an allowance for the effects of treatment; Medical Assessment Certificate revoked.
Decision date: 9 October 2024 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
Zilco International Pty Ltd v Viles [2024] NSWPICMP 705
Assessment of the lumbar spine; the employer appealed the one-tenth deduction; Held – Medical Appeal panel found no error; Medical Assessment Certificate confirmed.
Decision date: 9 October 2024 | Panel Members: Member Jane Peacock, Dr James Bodel, and Dr Andrew Porteous | Body system: Lumbar Spine
Khano v Akropolis Food Services Pty Ltd [2024] NSWPICMP 706
Appellant submits that the Medical Assessor (MA) erred in failing to have regard to all of the evidence and provide adequate reasons, in particular, failure to follow the determination of the Personal Injury Commission’s (Commission) Member as to causation, failure to have regard to the Member’s determination, and failure to provide any or any adequate reasons; Medical Appeal Panel (Panel) agreed that the MA’s reasons were inadequate but as there was no challenge to the impairment assessment this failure in our view does not render the Medical Assessment Certificate (MAC) null and void; without an identified error in the psychiatric impairment rating scale (PIRS), the Panel cannot disturb the ratings and has no power to reassess the appellant in relation to the PIRS; Held – MAC confirmed.
Decision date: 9 October 2024 | Panel Members: Member Deborah Moore, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Bailey v Youthconnections.com.au [2024] NSWPICMP 709
Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker challenges assessments of the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, and social functioning; Held – no demonstrable error or application of incorrect criteria found in assessment of the two PIRS categories; Medical Assessment Certificate confirmed.
Decision date: 10 October 2024 | Panel Members: Member John Isaksen, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Tradieh v LM Hayter & Sons Pty Ltd [2024] NSWPICMP 710
Assessment of the lower extremities and scarring; worker appealed alleging error in failing to explain why differed from the independent expert qualified on behalf of the appellant; Held – Medical Appeal Panel found reasons adequate and no error; Medical Assessment Certificate confirmed.
Decision date: 10 October 2024 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Left Lower Extremity, Right Lower Extremity, and Consequential Scarring
Wein v Catholic Schools Office – Diocese of Maitland-Newcastle [2024] NSWPICMP 715
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale (PIRS) categories; self-care and personal hygiene; concentration, persistence and pace; employability; Held – Medical Appeal Panel found error on all three categories; Medical Assessment Certificate revoked.
Decision date: 15 October 2024 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric
State of New South Wales (Northern NSW Local Health District) v Twomey [2024] NSWPICMP 716
Workplace Injury Management and Workers Compensation Act 1998; assessment of 23% whole person impairment of the visual system; no deduction pursuant to section 323 for pre-existing condition; Medical Appeal Panel (Panel) satisfied that Medical Assessor failed to adequately comment on medical opinions and provide adequate reasons in considering whether a deduction should be made pursuant to section 323; Panel reviewed the evidence and made a deduction of one tenth for pre-existing retinal detachment; Held – Medical Assessment Certificate revoked.
Decision date: 15 October 2024 | Panel Members: Member Carolyn Rimmer, Dr Kerrie Meades, and Dr Ian Wechsler | Body system: Visual System
This publication is for information only. The publication is not legal advice. The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.
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