Legal Bulletin No. 185
This bulletin was issued on 1 November 2024
Issued 1 November 2024
Welcome to the one hundred and eighty fifth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Supreme Court Decisions
Warwick Campbell v Star Electrical Co Pty Ltd & Ors [2024] NSWSC 1341
Administrative law; judicial review of Medical Appeal Panel; referral of medical dispute to a medical assessor; whether Medical Appeal Panel erred in accepting reasons of medical assessor; whether ambiguity of medical assessor’s findings required further assessment; presumption of regularity; Held – the summons is dismissed; the Plaintiff is to pay the First Defendant’s costs.
Decision date: 24 October 2024 | Before: Coleman J
Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359
Administrative law; judicial review; summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction; whether a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error, failed to exercise its statutory powers or failed to give adequate reasons; Held – the summons filed on 30 April 2024 is dismissed; the plaintiff is to pay the first defendant’s costs.
Decision date: 29 October 2024 | Before: Griffiths AJA
Presidential Member Decisions
Warrumbungle Shire Council v Rao [2024] NSWPICPD 63
Workers compensation; consideration of evidence of worker and co-workers; assessment of credibility; assessment of evidence of doctors; Held – order 1 of the Certificate of Determination dated 2 November 2023 is revoked; Order 2 revoked as a consequence of the revocation of Order 1; the matter is remitted for re-determination by a Member of the Commission.
Decision date: 21 October 2024 | Before: Acting Deputy President Geoffrey Parker SC
Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery v Andersen [2024] NSWPICPD 64
Workers compensation; aggravation of underlying degenerative changes; consequential injury; causation; Kooragang Cement Pty Ltd v Bates; credibility not impeached by surveillance footage; adequacy of reasons; conducting a business or a hobby; activities performed cannot be regarded as work if they are in the nature of a pastime or recreational activity; profit not determinative in the consideration of the work performed; suitability of employment under section 32A of the Workers Compensation Act 1987; Held – the Certificate of Determination dated 19 October 2023 is confirmed.
Decision date: 21 October 2024 | Before: President Judge Phillips
State of NSW (Department of Education) v Moore [2024] NSWPICPD 65
Workers Compensation Act 1987; workers compensation; pre-filing statement struck out by order of the President; sections 151DA(3) and 151DA(4); Luke v McCarthy considered; Held – the Pre-Filing Statement dated 6 December 2022 is struck out pursuant to section 151DA(3); the applicant defendant’s application for the costs of this application is rejected.
Decision date: 21 October 2024 | Before: President Judge Phillips
Sweet Art Special Events Pty Ltd v Workers Compensation Nominal Insurer (icare) [2024] NSWPICPD 66
Workers compensation; section 16(1)(a) of the Workers Compensation Act 1987; Husnain Pty Ltd v Workers Compensation Nominal Insurer applied; Magliano v Workers Compensation Nominal Insurer distinguished; whether error in factual determinations; Whiteley Muir & Zwanenberg Ltd v Kerr applied; Held – the Senior Member’s determination that the deemed date of injury is 28 October 2019 is confirmed; the Senior Member’s determination as to the second respondent’s actual earnings and his capacity for work during the period from 17 January 2020 to 19 March 2021 is confirmed; the Senior Member’s determination as to the second respondent’s capacity for work during the period 20 March 2021 to 17 July 2022 is confirmed; the Senior Member’s determinations of the second respondent’s pre-injury average weekly earnings, and the second respondent’s capacity for work and ability to earn during the period from 28 October 2019 to 18 January 2020, and the amount payable by the appellant to the Nominal Insurer are revoked and remitted to a different member for re-determination.
Decision date: 22 October 2024 | Before: Deputy President Elizabeth Wood
Coolamon Shire Council v Hillier [2024] NSWPICPD 67
Workplace Injury Management and Workers Compensation Act 1998; workers compensation; factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr in relation to factual findings; application for fresh evidence under section 352(6) and principles in CHEP Australia Ltd v Strickland; Held – the application under section 352(6) for the Commission to receive fresh evidence, or evidence in addition to or in substitution for the evidence received before the Member is rejected; the Certificate of Determination dated 14 August 2023 is confirmed.
Decision date: 23 October 2024 | Before: Acting Deputy President Michael Perry
Motor Accidents non-Presidential Member Decisions
Azzi v Allianz Australia Insurance Limited [2024] NSWPIC 459
Motor Accidents Compensation Act 1999; application for exemption pursuant to section 92(1)(a); claimant claiming nervous shock as a first responder police officer to a fatal motor vehicle accident, claim lodged over 6 years from date of accident with claim accepted by insurer as a late claim; inability to obtain inquest material to determine claimant’s involvement at the scene without the force of a subpoena; Insurance Australia Limited t/a NRMA Insurance v Banos applied; Held – limitations of the Commission without subpoena powers prevented obtaining essential material resulting in the matter being not suitable for assessment in addition to the claim involving issues of liability and potential non CTP parties; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 21 August 2024 | Member: Terrence Broomfield
AAI Limited t/as AAMI v Zahr [2024] NSWPIC 571
Motor Accident Injuries Act 2017; application by insurer for exemption under section 7.34(1)(b); opposed by claimant; whether claim suitable for assessment; liability denied; factual disputes about the circumstances in which the accident occurred; multiple lay witnesses; each party proposes to rely on evidence from an accident re-construction expert; experts (including medico-legal experts) likely to be required for cross examination; subsequent accident; Held – experts (and witnesses other than the claimant) cannot be compelled to give evidence in the Commission; the parties should be in a position to compel witnesses to attend the hearing; damages claimed are substantial; the assessment of damages will be complicated by a subsequent motor accident; proceedings arising from both accidents are likely to be heard together; hearing likely to take a number of days; claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 11 September 2024 | Senior Member: Brett Williams
AAI Limited t/as GIO v Francesco [2024] NSWPIC 572
Surgical procedures; insurer seeks credit for pre-injury average weekly earnings (PIAWE); calculation of past economic loss; part time employment; no capacity to return to work; physical and psychological injuries; improvement in condition; future economic loss; assumptions as to most likely circumstances; consideration of medical material; improvement in condition; claimant’s strong preferences for settlement approval; Held – the amount of the claim for damages is approved in the total amount of $125,000.
Decision date: 9 October 2024 | Member: Hugh Macken
AAI Limited t/as GIO v Chan [2024] NSWPIC 573
Motor Accident Injuries Act 2017; settlement approval in the sum of $300,000; 77-year-old male; non-economic loss only; injuries; cervical fusion C2-C5; other medical conditions impacting on life expectancy including breast cancer and recent diagnosis of Parkinson’s Disease; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23.
Decision date: 14 October 2024 | Member: Shana Radnan
CAC v AAI Limited t/as GIO [2024] NSWPIC 574
Motor Accident Injuries Act 2017; claim for damages; 36-year-old claimant was a driver in a motor vehicle involved in a forceful rear end collision on 5 November 2020; injuries to cervical spine, lumbar spine, bilateral knee injuries; bilateral shoulder injuries; post-traumatic stress disorder; major depressive disorder; agreed whole person impairment greater than 10%; claimant returned to work following accident until she commenced maternity leave in January 2022; she did not return to work thereafter; question as to why not return to work; extent of capacity for work; causation of injury to knees and both shoulders; extent of pre-existing injuries; Held – claimant honest witness; condition deteriorated whilst on maternity leave; incapacity for work due to psychological injury; since August 2022 claimant totally unfit for work; accident caused change in most likely future circumstances; had accident not occurred claimant would have returned to work part time until youngest child commenced school; damages assessed on basis total incapacity until retiring age; discount for vicissitudes increased to 20% to take into account claimant may have developed serious psychological illness independently of accident given her pre-existing generalised anxiety disorder and the remote possibility of a return to work; past economic loss assessed at $64,112.50; future economic loss assessed at $812,450.40; non-economic loss assessed at $450,000; total damages assessed at $1,326,562.90; costs assessed in favour of claimant.
Decision date: 16 October 2024 | Member: Susan McTegg
QBE Insurance (Australia) Limited v Hitchco [2024] NSWPIC 577
Motor Accident Injuries Act 2017; approval of settlement; section 6.23; 58-year-old manual worker; damages for non-economic loss; damages for past and future economic loss; injury to left shoulder; arthroscopic debridement; requirement for revised surgery; reverse left shoulder replacement; loss of earning capacity; Held – proposed settlement of $400,000 is approved under section 6.23(2)(b).
Decision date: 17 October 2024 | Member: Maurice Castagnet
AAI Limited t/as GIO v Collins [2024] NSWPIC 588
Motor Accident Injuries Act 2017; settlement approval; 52-year-old rider of a motorcycle involved in a collision with the insured motor vehicle; claimant sustained fractures to his left clavicle and scapula, fractured ribs, multiple abrasions and bruising to left arm, abdomen, lower back, neck, left ankle, left foot and right arm; insurer wholly admitted liability, conceded non threshold injury and also conceded entitlement to past and future economic loss; claimant is a plasterer by profession and has not been able to engage in either full time or part time employment since the accident; total amount of damages proposed is $400,000 less statutory payments and advances made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement is approved under section 6.23 (2)(b).
Decision date: 21 October 2024 | Member: David Ford
Taylor v QBE Insurance (Australia) Limited [2024] NSWPIC 591
Motor Accident Injuries Act 2017; claim for damages taken to be withdrawn under section 6.26(3); claimant’s application for reinstatement under section 6.26(4); statutory declarations provided from claimant and solicitor; claimant’s solicitor advised he failed to diarise the due date for provision of particulars; claimant’s evidence was he had surgery and three years after the accident his injury had not stabilised and his impairments could not be assessed; insurer did not oppose reinstatement of the claimant; Held – claimant had a full and satisfactory explanation for the delay in providing the particulars; claim should be reinstated; no matter of principle.
Decision date: 22 October 2024 | Member: Belinda Cassidy
Workers Compensation non-Presidential Member Decisions
Sebille v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 576
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly compensation payments pursuant to section 37 of the 1987 Act; whether the applicant was a worker pursuant to section 4 of the 1998 Act or a deemed worker pursuant to section 5 of the 1998 Act and clause 2 of Schedule 1 to the 1998 Act; Held – applicant not a worker or deemed worker; award for the respondent.
Decision date: 16 October 2024 | Member: Adam Halstead
Tiyce v R & B Steel Supplies [2024] NSWPIC 578
Workers Compensation Act 1987; claim pursuant to section 60 for the costs of anterior cervical discectomy and fusion at C3/4, C4/5 and C5/6 levels, and ancillary expenses; respondent’s independent medical examiner supported surgery at C5/6 level only; respondent disputed that surgery was reasonably necessary and that alternative treatment had been considered or trialled; Diab V NRMA Ltd, and Rose v Health Commission (NSW) considered; Held – evidence of treating specialist and applicant’s independent medical examiner preferred over evidence of respondent’s independent medical examiner; award for the applicant for the costs of anterior cervical discectomy and fusion at C3/4, C4/5 and C5/6 levels, and ancillary expenses.
Decision date: 17 October 2024 | Senior Member: Kerry Haddock
Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPIC 579
Workers Compensation Act 1987; dispute is in relation to the calculation of pre-injury average weekly earnings (PIAWE); clause 8C of the Workers Compensation Regulation 2016 considered; Held – clause 8C applies; award for the applicant.
Decision date: 17 October 2024 | Member: Michael Wright
Stapleton v PSGA Pty Ltd [2024] NSWPIC 580
Workers Compensation Act 1987; section 82A; date an injured worker “became entitled to weekly payments of compensation” for the purposes of variation of pre-injury average weekly earnings; statutory construction; distinction between physical incapacity and economic incapacity; Arnotts Snack Products Pty Ltd v Yacob considered and distinguished; P&O Berkley Challenge and Alfonso, Theoret v Aces Incorporated, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Project Blue Sky Inc v Australian Broadcasting Authority, and Military Rehabilitation and Compensation Commission v May considered and applied; Held – for the purposes of section 82A an injured worker becomes entitled to weekly payments of compensation on the date of physical and economic incapacity for work; the relevant date of incapacity is the date of surgery; the applicant has no entitlement to variation of his pre-injury average weekly earnings pursuant to section 82A; respondent paid the applicant his full entitlement to weekly payments of compensation for the period claimed.
Decision date: 17 October 2024 | Member: Kathryn Camp
Mitchell v MidCoast Council [2024] NSWPIC 584
Expedited assessment proceedings; work capacity dispute as to whether worker had capacity for suitable employment; surveillance reports and video showed applicant riding a lawn mower and attending a child’s birthday party; whether Commission could interpret surveillance evidence; weight that could be given to surveillance evidence; consideration of the details provided in medical information; Held – applicant had no current work capacity.
Decision date: 18 October 2024 | Member: Parnel McAdam
Dodd v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 585
Accepted left shoulder and wrist injuries; whether applicant suffered a left elbow injury or consequential condition; whether applicant suffered a consequential condition in cervical spine and right shoulder; lack of causation explanation in applicant’s medicolegal report; sufficient medical evidence contained in clinical material supported by applicant’s statement to make a finding of consequential condition in right shoulder, insufficient material to support left elbow or cervical spine; Held – award for the respondent for left elbow and cervical spine; applicant suffered consequential condition in right shoulder; matter referred for assessment of whole person impairment.
Decision date: 18 October 2024 | Member: Parnel McAdam
Hadji v Canterbury Hurlstone Park RSL Club Ltd [2024] NSWPIC 586
Workers Compensation Act 1987; claim for weekly benefits of compensation due to psychological injury; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal; Northern NSW Local Health District v Heggie, Hamad v Q Catering Ltd, and Attorney General’s Department v K considered; Held – action taken by respondent was reasonable with respect to performance appraisal/discipline; respondent discharged its onus with respect to section 11A; award for the respondent.
Decision date: 18 October 2024 | Member: Diana Benk
Lewis v Lewis & Anor [2024] NSWPIC 590
Claim for proposed surgery to the lumbar spine namely an anterior cervical discectomy and fusion at C3-4 as a result of the injury on 1 February 2017; Held – the injury on 1 February 2017 made a material contribution to the need for cervical spine surgery proposed and that the medical treatment is reasonably necessary as a result of the injury.
Decision date: 21 October 2024 | Member: Carolyn Rimmer
Ferguson v Connemara Jack Pty Ltd [2024] NSWPIC 592
Whether the applicant suffered consequential condition of complex regional pain syndrome (CRPS) to the upper and lower limbs as a result of an accepted right wrist injury; gaps in the medical evidence; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Held – the applicant has suffered a consequential condition of CRPS to the bilateral upper extremities but not the lower extremities resulting from the right wrist injury; matter referred to a Medical Assessor.
Decision date: 22 October 2024 | Member: Diana Benk
Chahine v The Council of the City of Sydney [2024] NSWPIC 593
Workers Compensation Act 1987; medical expenses claim; applicant suffered accepted cervical spine injury and seeks an order the respondent pay costs of, and incidental to C5/6 and C6/7 anterior cervical discectomy and fusion surgery; disputed as not reasonably necessary; applicant claims lumbar spine condition as consequential to cervical spine injury; lumbar spine injured during physiology treatment for cervical spine; causal chain argued by applicant; Held – the proposed treatment for cervical spine is reasonably necessary as a result of the injury; respondent is ordered to pay the costs of, and incidental to, the recommended surgery; evidence does not reasonably establish lumbar spine condition consequential to cervical spine injury.
Decision date: 22 October 2024 | Member: Adam Halstead
Motor Accidents Medical Review Panel Decisions
Gordon v QBE Insurance (Australia) Limited [2024] NSWPICMP 730
Motor Accident Injuries Act 2017; the claimant’s sister died in a motor vehicle accident; claimant advised of death; the dispute related to whether the claimant sustained threshold injuries and the extent of any permanent impairment; prior history of psychological symptoms; Medical Assessor found no psychological injury caused by motor accident; Medical Review Panel (Panel) required to re-examine to determine issue; claimant failed to attend medical examinations, failed to explain his non-attendance and did not respond to direction from Panel; claimant’s solicitor advised that they had lost contact; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held – application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act due to the failure to prosecute the proceedings with due dispatch.
Decision date: 9 October 2024 | Principal Member: John Harris
Khalil v Allianz Australia Insurance Limited [2024] NSWPICMP 731
Motor Accident Injuries Act 2017; the claimant suffered non-threshold injury from rear end collision; the medical dispute related to whether the claimant exceeded the threshold to obtain non-economic loss damages; Medical Assessor assessed claimant at 3%; claimant review of medical assessment; matter referred to Medical Review Panel (Panel); Panel required to re-examine to determine issue; claimant failed to attend medical examinations, failed to explain his non-attendance and did not respond to direction from Panel; claimant indicated that he was not going to attend medical examination; claimant now legally unrepresented; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held – application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act due to the failure to prosecute the proceedings with due dispatch.
Decision date: 14 October 2024 | Principal Member: John Harris
Mansour v CIC Allianz Insurance Limited [2024] NSWPICMP 719
Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; cervical spine; lumbar spine; right shoulder; assessment by analogy; pre-existing conditions; medical review of certificate of Medical Assessor (MA); claimant suffered injury in an accident on 14 April 2020; the dispute related to the assessment of WPI of the cervical spine, lumbar spine, and right shoulder; MA assessed 0% WPI; Held – Briggs v IAG Limited trading as NRMA Insurance cited; soft tissue injury to cervical spine caused by accident; soft tissue injury to lumbar spine caused by accident; injury to right shoulder, namely bursitis and SLAP (superior labrum from anterior to posterior) tear caused by accident; cervical spine assessed as DRE cervicothoracic category II or 5% WPI; lumbar spine assessed as DRE cervicothoracic category I or 0% WPI; inconsistency in range of movement of right shoulder demonstrated on examination so right shoulder assessed by analogy by reference to shoulder crepitus in the acromioclavicular joint at 3% WPI; Medical Assessment Certificate revoked; injures caused by accident gave rise to 8% WPI.
Decision date: 17 October 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Rifaieh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 722
Motor Accident Injuries Act 2017; medical dispute about permanent impairment; assessment review under section 7.26; claimant injured 3 April 2020 when the insured driver collided forcefully with his vehicle; accident caused soft tissue injury in cervical and lumbar spine with both shoulders; complex medical history before accident including pain syndrome and heart disease; shoulders demonstrated variations in range of movement (ROM) in earlier assessments; original impairment assessment 0%; review approved due to the Medical Assessor failing to put inconsistencies to claimant; re-examined; claimant demonstrated variable ROM; overt pain behaviour; demonstrated cervical asymmetry and pain 5% permanent impairment; lumbar spine; pain demonstrated 0% permanent impairment; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd considered for left and right shoulders which demonstrated variable ROM and cannot be considered permanent 0%; claimant questioned about inconsistencies and pain behaviour; Medical Review Panel considered claimant's other medical conditions may impact on his presentation and were not intended to mislead; Held – Medical Assessment Certificate revoked; new certificate; not greater than 10% permanent impairment.
Decision date: 21 October 2024 | Panel Members: Member Terence O’Riain, Dr David Gorman, and Dr Lesley Barnsley | Injury module: Spine and Upper Limb
Mourtada v Allianz Australia Insurance Limited [2024] NSWPICMP 726
Motor Accident Injuries Act 2017; threshold injury; lumbar spine, cervical spine, shoulders, and right knee; causation; labral tear; the claimant suffered injury in a motor vehicle accident on 3 November 2022; Medical Assessor (MA) certified injuries to the cervical spine, lumbar spine, both shoulders were soft tissue injuries and therefore threshold injuries; certified the right knee injury was not caused by the accident; application for review by claimant; Held – no dispute soft tissue injuries to cervical and lumbar spine were threshold injuries; labral tear to left shoulder incidental finding; test for causation as per Briggs v IAG Limited Trading as NRMA Insurance considered; soft tissue injury to left shoulder including possibly the AC joint was a threshold injury; soft tissue injury to right shoulder now resolved is a threshold injury; soft tissue injury to right knee; Medical Assessment Certificate revoked; accident caused soft tissue injury to cervical spine, lumbar spine, both shoulders and right knee; all injuries threshold injuries.
Decision date: 22 October 2024 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Illawarra Linen Service v Trevena [2024] NSWPICMP 717
Appeal from assessment of whole person impairment (right hip, lumbar spine); whether Medical Assessor (MA) erred in omitting to make a deduction for pre-existing degenerative disease; whether the MA erred in allowing 2% for effects on activities of daily living; whether any part of permanent impairment resulted from a pre-existing condition and not from injury; Held – Medical Assessment Certificate confirmed.
Decision date: 17 September 2024 | Panel Members: Member Richard Perrignon, Dr Brian John Stevenson, and Dr Gregory McGroder | Body system: Right Lower Extremity and Lumbar Spine
Westpac Banking Corporation v Thorpe [2024] NSWPICMP 721
Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to section 323 where the evidence supported such a deduction being made; the Medical Assessor erred in making an adjustment for the effects of treatment; the respondent submits that no errors were made and also agrees with the appellant that the Medical Assessor erred in making an adjustment for the effects of treatment; re-examination required; evidence of a pre-existing disorder; Held – Medical Assessment Certificate revoked.
Decision date: 17 October 2024 | Panel Members: Member Deborah Moore, Dr Graham Blom, and Dr Michael Hong | Body system: Psychological/Psychiatric
Nadj v The Salvation Army (NSW) Social Work [2024] NSWPICMP 723
Workplace Injury Management and Workers Compensation Act 1998; Lead Assessor assessed 0% whole person impairment (WPI) of the digestive tract, 0% WPI of the lumbar spine, 0% WPI of the right knee, and 4% WPI of the left knee; Non-lead Assessor assessed 6% WPI in respect of sleep disorder; worker appealed assessments of sleep disorder, lumbar spine, right and left lower extremities, and digestive tract; Held – Medical Appeal Panel (Panel) found no error in assessment of digestive tract, sleep disorder, lumbar spine; Panel satisfied that there was an error in the bilateral knee assessment; worker re-examined and Panel assessed 0% WPI in respect of the right knee and 4% WPI in respect of the left knee; assessment of WPI by the Panel is the same as that made by the Lead Assessor and review did not lead to a different result; Medical Assessment Certificate’s of Lead Assessor and Non-lead Assessor confirmed.
Decision date: 21 October 2024 | Panel Members: Member Carolyn Rimmer, Dr Mark Burns, and Dr John Garvey | Body system: Right Lower Extremity, Left Lower Extremity, Scarring, Sleep Disorder, Digestive System, and Lumbar Spine
Huang v GMP Pharmaceuticals Pty Ltd [2024] NSWPICMP 724
Workplace Injury Management and Workers Compensation Act 1998; narrow grounds of appeal; injury omitted from referral but appropriate assessment made by Medical Assessor; Member found that worker suffered traumatic brain injury but Medical Assessor determined there was not; Haroun v Rail Corporation New South Wales; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd; Held – Medical Assessment Certificate confirmed.
Decision date: 21 October 2024 | Panel Members: Member Catherine McDonald, Dr Michael Davies, and Dr Drew Dixon | Body system: Head, Cervical Spine, and Peripheral Nervous System
Westpac Banking Corporation v Enwia [2024] NSWPICMP 728
Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury where worker suffered a head injury in subsequent employment; causation of impairment; Secretary, New South Wales Department of Education v Johnson; re-examination; Held – Medical Assessment Certificate revoked.
Decision date: 22 October 2024 | Panel Members: Member Catherine McDonald, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric
RFD Group Pty Ltd v Adebiyi [2024] NSWPICMP 729
Appeal against assessment of 19% whole person impairment (WPI) for a psychiatric injury deemed to have occurred on 5 June 2020; appellant submitted that the Medical Assessor (MA) failed on reconsideration to address the inconsistencies in the first Medical Assessment Certificate (MAC) dated 31 October 2023 when issuing the MAC dated 15 May 2024; Held – Medical Appeal Panel agreed that MA had taken an incorrect history and provided minimal reasoning in the assessment of impairment; MA failed to provide adequate reasons and applied incorrect criteria in the assessment of the psychiatric impairment rating scale (PIRS); worker re-examined; MAC revoked.
Decision date: 22 October 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr John Baker | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decisions
Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); merit review; dispute about payment of weekly benefits under Division 3.3 of the MAI Act; whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA(as applied by section 3.39 of the MAI Act); limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Decision date: 19 July 2024 | Merit Reviewer: Katherine Ruschen
Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); merit review; dispute about payment of weekly benefits under Division 3.3 of the MAI Act; whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA(as applied by section 3.39 of the MAI Act); limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Decision date: 22 July 2024 | Merit Reviewer: Katherine Ruschen
LMB v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 70
Motor Accident Injuries Act 2017; merit review of insurer’s post-earning capacity decision under section 3.16; insurer’s decision to decrease the amount of weekly payments of statutory benefits (after the second entitlement period or 78 weeks) made to the claimant on the basis that the claimant has capacity to earn in any employment reasonably available to the claimant under Schedule 1, clause 8; factors to be considered in relation to fitness for work; Held – claimant not fit to work in any of the employment options identified by the insurer; the reviewable decision dated 7 June 2024 is set aside with the insurer to re-calculate the claimant’s weekly payments of statutory benefits in accordance with the merit review decision.
Decision date: 22 October 2024 | Merit Reviewer: Jeremy Lum
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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