Legal Bulletin No. 186

Issued 8 November 2024

Welcome to the one hundred and eighty sixth 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

Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351

Administrative law; judicial review of decision of Review Panel; no failure to exercise statutory function; no attempt to determine scope of the motor accident; adequate reasons; no relevant inconsistencies; proper application by the Review Panel of the requirements of cll 6.40 and 6.41 of Guidelines; no failure to provide procedural fairness; appropriate for Review Panel to avoid addressing legal submissions of parties about what constitutes “a motor accident”; no error; summons dismissed; Held – summons dismissed; plaintiff to pay the first defendant’s costs.

Decision date: 29 October 2024 | Before: Lonergan J

Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380

Administrative law; judicial review; error of law on face of record; jurisdictional error; review of medical assessment by appeal panel; whether medical assessor made appropriate deductions for the proportion of the impairment stemming from previous injuries and pre-existing conditions; adequacy of assessor’s reasons; failure of appeal panel to address grounds and submissions on appeal; Held – set aside the decision and medical assessment certificate issued by an appeal panel of the Personal Injury Commission on 12 March 2024; set aside the certificate of determination issued by the Personal Injury Commission, Workers Compensation Division, dated 16 April 2024; direct that the President of the Personal Injury Commission refer the Secretary’s appeal to a differently constituted medical appeal panel; order that the first defendant pay the plaintiff’s costs in this Court.

Decision date: 31 October 2024 | Before: Basten AJ

Presidential Member Decisions

State of New South Wales (Sydney Local Health District) v Sun [2024] NSWPICPD 68

Workers compensation; sections 11A and 65A of the Workers Compensation Act 1987; determination with respect to weekly compensation and medical expenses does not prevent a subsequent claim for permanent impairment compensation; Res judicata estoppel; Anshun estoppel; Gimis v Tweed Shire Council [2023] NSWPICPD 44 and Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 discussed and applied; Held – the appeal is dismissed; the decision of the Member is confirmed.

Decision date: 30 October 2024| Before: Acting Deputy President Geoffrey Parker SC

Thomson v Civforce Traffic Management Pty Ltd [2024] NSWPICPD 69

Workers compensation; procedural fairness; where the dispute is determined on a basis not put by the parties and not drawn to the attention of the parties the determination is erroneous unless the error could not possibly have affected the outcome; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197 applied; whether proposed surgery is reasonably necessary; Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed and applied; Held – the appellant is directed to advise the Commission in writing that the Election to Discontinue the proceedings dated 10 July 2024 is withdrawn; the time for the respondent to lodge submissions in respect of Ground Six of the appeal is extended to 18 October 2024; the Member’s Certificate of Determination dated 9 November 2023 is revoked; the respondent is to pay the costs of and incidental to the surgery proposed by Dr Brian Hsu in the form of an L5/S1 spinal decompression and fusion in accordance with section 60(1) of the Workers Compensation Act 1987.

Decision date: 31 October 2024 | Before: Deputy President Elizabeth Wood

E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70

Workers compensation; weight of evidence; Shellharbour City Council v Rigby [2006] NSWCA 308, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; credit findings; Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290; 98 NSWLR 586; reasons; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, Ming v Director of Public Prosecutions [2022] NSWCA 209; issue estoppel; oral evidence in the Commission; New South Wales Police Force v Winter [2011] NSWCA 330, Spencer v Bamber [2012] NSWCA 274; error within the meaning of section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; Held – the Certificate of Determination dated 15 August 2023 is confirmed.

Decision date: 31 October 2024| Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Beram [2024] NSWPIC 595

Motor Accident Injuries Act 2017; settlement approval; 78-year-old passenger in a motor vehicle involved in a collision with the insured motor vehicle at an intersection; claimant sustained severe injuries including multiple fractured ribs, fractured sternum, compound fracture of the left ankle, injury to the right ankle and damage to the left ulnar nerve; insurer wholly admitted liability, conceded non threshold injury and also conceded entitlement to damages for non-economic loss; claimant is retired; the amount proposed for non-economic loss is $300,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 23 October 2024 | Member: David Ford

Liu v QBE Insurance (Australia) Limited [2024] NSWPIC 606

Motor Accident Injuries Act 2017; non-regulated merit review matter; claimant’s exceptional legal costs assessed under section 8.10(4)(b); insurer’s legal representative permitted to recover reasonable legal costs under section 8.3(4).

Decision date: 24 October 2024 | Member: Jeremy Lum

Hinch v Allianz Australia Insurance Limited [2024] NSWPIC 604

Motor Accident Injuries Act 2017; assessment of contributory negligence and damages; claimant suffered injury while standing at the rear of his vehicle at night in blizzard like conditions; hazard lights not activated; vehicle parked on roadside in a position that reduced ability of other drivers to observe him and his vehicle; Held – claimant failed to exercise reasonable skill and care; contributory negligence established and found to be 20%; claimant suffered significant right leg injuries, scarring and post-traumatic stress disorder; damages for non-economic loss assessed at $320,000; awards made for past and future economic loss; after reduction for contributory negligence damages of $448,243 assessed.

Decision date: 29 October 2024 | Senior Member: Brett Williams

Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605

Motor Accident Injuries Act 2017; claimant’s application for assessment of whether he was wholly or mostly at fault under sections 3.11 and 3.28 and degree of contributory negligence under section 3.38; claimant riding registered motor bike on a fire trail in the Southern Highlands; claimant behind his friend who was familiar with the trail; claimant lost control of his motorbike and crashed into bush at the side of the trail and was seriously injured; claimant lost control when his motorbike hit a fallen tree across the trail; his friend did not collide with the tree; stopped and turned to warn the claimant; findings made were the tree was obscured from the claimant’s vision by a bump in the road; claimant was unfamiliar with the road but had ridden into the bush and was riding out and was aware of the presence of a fallen tree and bumps in the road generally; claimant travelling at between 20 and 40 kms per hour; claimant’s friend tried to warn the claimant; Held – claimant’s contributory negligence assessed at 75% and therefore he was wholly or mostly at fault; AAI Limited t/as GIO v Evic applied and followed; Allianz Australia Insurance Limited v Shuk, Axiak v Ingram, and Davis v Swift considered; costs allowed and assessed in the sum of $3,300.

Decision date: 29 October 2024 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Lamy v PRW Security Doors & Screens Pty Ltd [2024] NSWPIC 596

Workers Compensation Act 1987; claim for section 60 expenses; physiotherapy for accepted injuries to left shoulder and neck; consideration of applicant’s statement, medical reports, and other treatment records and claim correspondence; consideration of whether the physiotherapy treatment was reasonably necessary; Diab v NRMA Limited, and Rose v Health Commission (NSW) considered; Held – the claimed physiotherapy is reasonably necessary pursuant to section 60.

Decision date: 23 October 2024 | Member: Anne Gracie

Dreis v Axis Plumbing NSW Group Pty Ltd [2024] NSWPIC 598

Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to right shoulder on 4 June 2019 and consequential injury to left shoulder; alleged injury to cervical spine disputed; Held – the applicant sustained an aggravation of previously asymptomatic degenerative cervical spondylosis in the course of employment with the employment being the main contributing factor.

Decision date: 25 October 2024 | Member: Fiona Seaton

Nemra v Stuart Dickson Produce Pty Ltd [2024] NSWPIC 599

Workers Compensation Act 1987; applicant was involved in accident when driving forklift on 10 June 2020; the respondent agrees he sustained an injury to his cervical spine and lumbar spine but disputes he sustained any injury to his right shoulder; Mason v Demasi & Anor and Bradshaw v McEwans Pty Ltd discussed; Held – the applicant has not discharged his onus of proof that he sustained an injury to his right shoulder on 10 June 2020; award for the respondent in relation to the allegation of right shoulder injury; the lump sum claims relating to the cervical spine and lumbar spines are remitted to the President for referral to Medical Assessor to assess permanent impairment.

Decision date: 25 October 2024 | Principal Member: Josephine Bamber

Aylott v Lite N' Easy [2024] NSWPIC 601

Workers Compensation Act 1987; whether the applicant suffered consequential condition to the lower limb as a result of an accepted lumbar spine injury; whether right hip replacement surgery was reasonably necessary; Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – the applicant has suffered a consequential condition to the right lower limb (hip) resulting from her accepted lumbar spine injury; surgery was reasonably necessary as a result of injuries; respondent to pay for surgical and ancillary costs pursuant to section 60.

Decision date: 28 October 2024 | Member: Diana Benk

Armour v Bluescope Steel Ltd [2024] NSWPIC 602

Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation, treatment expenses pursuant to section 60, and lump sum compensation pursuant to section 66; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, as well as factual and contractual material; respondent accepts that the applicant sustained a psychological injury to which her employment was the main contributing factor but relies upon a defence to her claim pursuant to section 11A alleging that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with regard to ‘transfer’; consideration as to whether the respondent can establish that its action amounted to ‘transfer’; Manly Pacific International Hotel Pty Ltd v Doyle, Wilson v Qantas Airways Limited, Smith v Roads and Traffic Authority of NSW, Pirie v Franklins Limited, Department of Education and Training v Sinclair, Shore v Tumbarumba Shire Council, Ninkovic v Sydney Children’s Hospital Network (Westmead), White v Commissioner of Police, Jeffery v Lintipal Pty Ltd, Canterbury Bankstown Council v Gazi, McCarthy v Department of Corrective Services, Insurance Australia Group Services Pty Ltd v Outram, BlueScope Steel Ltd v Markovski, Northern NSW Local Health Network v Heggie, and A1 Granny Flats v Workers Compensation Nominal Insurer considered; Held – the respondent has failed to establish (pursuant to section 11A) that its action which led to the applicant’s psychological injury amounted to ‘transfer’; its defence to the applicant’s claim fails; the applicant’s claim pursuant to section 66 is referred to a Medical Assessor; the applicant’s remaining claims (which will be potentially affected by the degree of whole person impairment found during medical assessment) are referred to a preliminary conference following the completion of the medical assessment process.

Decision date: 28 October 2024 | Member: Gaius Whiffin

Goodwin v Bunnings Group Ltd [2024] NSWPIC 603

Workers Compensation Act 1987; psychological injury; section 11A(1); whether the applicant’s accepted psychological injury was wholly or predominantly caused by reasonable action with respect to transfer; claim for weekly compensation and medical expenses payable; assessment of the reliability of evidence; consideration and application of Manly Pacific International Hotel Pty Ltd v Doyle; 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 transfer; the applicant has an entitlement to weekly payments of compensation and reasonably necessary medical treatment and expenses pursuant to sections 37 and 60.

Decision date: 28 October 2024 | Member: Kathryn Camp

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Limited as agent of the Nominal Defendant v El Rifi [2024] NSWPICMP 732

Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor’s (MA) assessment of a treatment dispute; treatment in issue was a lumbar spine MRI requested by the claimant’s GP in November 2022; after the claimant was found to have a non-threshold lumbar spine injury and the insurer accepted that decision the insurer paid for a lumbar spine MRI requested by the claimant’s pain specialist in June 2023; MA determined November 2022 request was reasonable and necessary in the circumstances but gave limited reasons; Held – MRI of part of the body injured in the accident was related to the injury caused by the accident; Medical Review Panel found MRI requested in November 2022 was not reasonable and necessary in the circumstances because the MRI investigation had been done in June 2023; certificate issued by MA dated 5 April 2024 revoked.

Decision date: 27 September 2024 | Panel Members: Member Belinda Cassidy, Dr Les Barnsley, and Dr Margaret Gibson | Injury module: Spine

Insurance Australia Limited t/as NRMA Insurance v BLJ [2024] NSWPICMP 734

Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; Medical Assessor determined that post-traumatic stress disorder and persistent depressive disorder caused by the accident gave rise to a permanent impairment greater than 10%; Held – the claimant had a pre-existing oppositional defiant disorder that gave rise to 7% permanent impairment; the claimant suffered post-traumatic stress disorder as a result of the accident; the claimant’s current impairment is 17%; after deducting the pre-existing impairment the permanent impairment caused by the accident is 10%; Medical Assessment Certificate revoked; new certificate issued certifying impairment resulting from post-traumatic stress disorder caused by the accident not greater than 10%.

Decision date: 23 October 2024 | Panel Members: Senior Member Brett Williams, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural

Rajinikanth v Allianz Australia Insurance Limited [2024] NSWPICMP 737

Motor Accident Injuries Act 2017; review of certificate of Medical Assessor about whether the following injuries were threshold injuries; injury to the cervical spine, injury to the lumbar spine, injury to the right shoulder, injury to the left shoulder, injury to the right elbow, and injury to the left knee; claimant was injured in a motor vehicle accident on 1 September 2022 in a T-bone collision resulting in his car being written off for insurance purposes; amongst other things the claimant suffered an interstitial delamination in his subscapularis and infraspinatus tendons which the claimant submitted was a non-threshold injury; claimant submitted that he had also suffered two clinical signs of radiculopathy but the Medial Review Panel (Panel) was not satisfied that this was correct; claimant’s treating surgeon reviewed an MRI scan and confirmed this showed a subacromial bursitis and possible rotator cuff tendinosis but no tear and with which the Panel agreed; Held –Medical Assessment Certificate affirmed; the claimant had suffered threshold injuries.

Decision date: 24 October 2024 | Panel Members: Member Alexander Bolton, Dr Shane Moloney, and Dr Margaret Gibson| Injury module: Spine, Upper Limb, and Lower Limb

Clarke v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 739

Motor Accident Injuries Act 2017; whether the injury to the lumbar spine sustained in the motor accident was a threshold injury; causation; motorcycle versus car accident; whether the motor accident caused a left L5/S1 disc herniation or an aggravation of pre-existing pathology at L5/S1; re-examination by the Medical Review Panel (Panel); Held – Medical Assessment Certificate revoked; new certificate issued under sections 7.26(7) and (9); Panel determines that the injury to the lumbar spine (left L5/S1 disc herniation with radiculopathy caused by the motor accident) is not a threshold injury.

Decision date: 25 October 2024 | Panel Members: Member Maurice Castagnet, Dr Michael Couch, and Dr Drew Dixon| Injury module: Spine

Karroum v Allianz Australia Insurance Limited [2024] NSWPICMP 741

Motor Accident Injuries Act 2017; review of medical assessment; whole person impairment; Schedule 1, clause 14F of the Personal Injury Commission Act 2020; previous mental health problems; physical and psychological symptoms; claimant mildly dysphoric; current and proposed treatment; mental health treatment plan; activities of daily living; persistent depressive disorder; no ongoing psychological treatment; application of DSM-5; Held – Medical Assessment Certificate revoked.

Decision date: 28 October 2024 | Panel Members: Member Hugh Macken, Dr Matthew Jones, and Dr Christopher Canaris| Injury module: Spine, Upper Limb, and Mental and Behavioural

Halliday v AAI Limited t/as GIO [2024] NSWPICMP 742

Motor Accident Injuries Act 2017; review of medical assessment; whether injury caused by the accident is a threshold injury; rear end collision; claimant alleges wedging of vertebral bodies of the thoracic spine caused or worsened by the motor accident; Held – claimant did not suffer a traumatic brain injury caused by the accident; headaches not an injury and are likely cervicogenic in nature; soft tissue injury to the neck found; found that vertebral wedging of the thoracic spine not caused by the accident and can be developmental in nature; if the claimant had sustained such injury as a result of the accident it would have brought substantial pain at the time of the accident and the evidence does not establish this; Medical Assessment Certificate confirmed; the claimant suffered a threshold injury.

Decision date: 28 October 2024 | Panel Members: Member Elizabeth Medland, Dr Sophia Lahz, and Dr Les Barnsley| Injury module: Nervous System and Spine

QBE Insurance (Australia) Limited v Sibley [2024] NSWPICMP 743

Motor Accident Injuries Act 2017; review of medical assessment as to level of whole person impairment (WPI); physical injuries; claimant was the driver of a motor vehicle when a group of males in another vehicle chased him and threw objects including a metal tyre lever that struck the claimant’s arm causing a penetrating injury; claimant made no ongoing complaints regarding the injury including any sensory loss; insurer argued that no complaints suggests nil WPI; Held – Medical Assessment Certificate revoked; new certificate issued certifying 12% WPI due to a penetrating injury to distal right forearm with chronic non-union of a compound comminuted fracture of distal ulna, and injury to the ulnar palmar digital nerve to right ring finger below mid-forearm level together with scarring.

Decision date: 29 October 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Oates, and Dr Les Barnsley| Injury module: Upper Limb and Skin

Workers Compensation Medical Appeal Panel Decisions

Elite Professional Facade Pty Ltd v Al Sauer [2024] NSWPICMP 735

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) based his assessment of the respondent’s permanent impairment of thoracic spine on correct criteria; whether MA erred with his assessment of the respondent’s permanent impairment of thoracic spine; whether it was desirable for MA to call for plain x-rays of the respondent’s thoracic spine and whether MA erred by not doing so; Held – MA was aware of the x-rays taken of the respondent’s thoracic spine; consistent with 4.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed, 1 March 2021) it was desirable that these be used to assess the degree of the respondent’s permanent impairment relating to his thoracic spine; MA erred by not using the power he had under section 324 to call for these x-rays; Medical Appeal Panel called for the production of the x-rays; Medical Assessment Certificate revoked.

Decision date: 23 October 2024 | Panel Members: Member Marshal Douglas, Dr James Bodel, and Dr Andrew Porteous | Body system: Lumbar Spine and Thoracic Spine

Bayes v Martin-Brower Australia Pty Ltd [2024] NSWPICMP 736

Workplace Injury Management and Workers Compensation Act 1998; fresh evidence by way of a further statement by the appellant was rejected; Petrovic v BC Serv No 14 Pty Limited applied; the appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale namely social functioning and social and recreational activities; Held – no error re social functioning; error re social and recreational activities; re-examination; Medical Assessment Certificate confirmed.

Decision date: 23 October 2024 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Tilley v Secretary, Department of Communities and Justice [2024] NSWPICMP 738

Workplace Injury Management and Workers Compensation Act 1998; appeal from decision of Medical Assessor (MA); whether assessor made obvious error or used incorrect criteria in making assessment of psychological injury; Held – MA erred in making a deduction of the permanent impairment arising from the accepted psychological injury pursuant to section 323 by reference to pre-existing physical conditions suffered by the appellant; the methodology adopted by the MA in applying the section 323 deduction was incorrect; Medical Assessment Certificate revoked and new certificate issued following re-examination by Medical Appeal Panel.

Decision date: 24 October 2024 | Panel Members: Member Cameron Burge, Dr Michael Hong, and Prof Nicholas Glozier | Body system: Psychological/Psychiatric

Ly v Sika Australia Pty Ltd [2024] NSWPICMP 744

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS) tables for self-care and personal hygiene, travel and concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

Decision date: 29 October 2024 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Khalid v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 71

Motor Accident Injuries Act 2017; merit review dispute as to the amount of weekly payments of statutory benefit; calculation of pre accident weekly earnings (PAWE); claimant self-employed taxi/uber/DiDi driver; dispute as to whether statutory benefit payments in respect of earlier unrelated accident should be taken into account; whether the claimant’s business expenses should be deducted from the business earnings for the purposes of calculation of PAWE; whether a vehicle purchase should be taken into account as a business expense; Held – statutory benefits received in respect of earlier motor accident are not to be included in earnings; found that business expenses are to be deducted from gross business earnings for the purposes of the calculation of PAWE; the purchase of the vehicle to be included in the business deductions noting it was claimed as a business expense with the Australian Taxation Office; the reviewable decision set aside and remitted back to the insurer for reconsideration with a number of directions including a direction that the calculation is to be made pursuant to Schedule 1, clause 4(2)(a) rather than clause 4(1).

Decision date: 21 October 2024 | Merit Reviewer: Elizabeth Medland

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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