Legal Bulletin No. 187

Issued 15 November 2024

Welcome to the one hundred and eighty seventh edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Supreme Court Decision

Keelan v Pearl Beach Reals Estate Pty Ltd [2024] NSWSC 1430

Administrative law; judicial review; review of decision by an Appeal Panel of the Workers Compensation Division of the Personal Injury Commission; whether the Appeal Panel erred in their reasons when rejecting the appeal; where the plaintiff had provided an updated statement as to the deterioration of her condition; where Appeal Panel draws an inference that the Medical Assessor had reviewed the document as he had updated the history previously obtained; whether the appeal panel was correct in applying the presumption of regularity to the Medical Assessors failure in commenting on the updated statement of the plaintiff; Held – the appeal panel incorrectly applied the presumption of regularity; there is an error on the face of the record and jurisdictional error.

Decision date: 11 November 2024 | Before: Elkaim J

Presidential Member Decisions

Dr AJ Oliver Pty Ltd v Brodie [2024] NSWPICPD 71

Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 considered and applied; Held – leave to appeal the decision of Member Drake dated 5 December 2023 is refused; the matter is remitted for referral for medical assessment in accordance with Order 6 of the Certificate of Determination dated 5 December 2023.

Decision date: 5 November 2024 | Before: President Judge Phillips

Woolstar Pty Limited v Draper [2024] NSWPICPD 72

Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; clause 28 of Procedural Direction PIC 3 considered and applied; adequacy of reasons; consideration of the interests of justice for the admission of late documents required; Held – leave to appeal is granted; the Member’s determination of 13 June 2024 is revoked; the matter is remitted for allocation to an alternative Member for determination; the documents the subject of the Application to Admit Late Documents dated 7 June 2024 not previously received should be available to the Commission for determination of the proceedings.

Decision date: 6 November 2024 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as GIO v Amos [2024] NSWPIC 608

Motor Accident Injuries Act 2017; application for discretionary exemption from assessment pursuant to rule 99 of the Personal Injury Commission Rules 2021; insurer submitted that the evidence suggests the claimant may have made false and misleading statements in respect of his claim for damages, including conflicting evidence as to economic loss, and taxation returns for prior financial years lodged after the motor accident without primary evidence provided to substantiate the earnings set out in the taxation returns; claimant is also said to have provided incorrect and incomplete information in respect of his criminal history; claimant submits this is not relevant and has been found as such by Medical Review Panels; Held - the issue of credit is a matter for the decision maker of the claim as a whole (Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Centre); the inconsistencies in the evidence and the likely requirement for evidence to be given by third parties, mean that the matter is not suitable for assessment and recommendation made to the Division Head that the matter be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 17 October 2024 | Member: Elizabeth Medland

Abdi v Allianz Australia Insurance Limited [2024] NSWPIC 609

Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant is wholly or mostly at fault for the accident; single motor vehicle accident; claimant injured as the rider of a motorcycle in the Royal National Park; motorcycle went off the road and hit a road sign and rock wall causing a finger amputation; Held – claimant found to be wholly at fault due to inexperience and a failure to adequately control his vehicle; consideration of Evic v AAI Limited t/as GIO.

Decision date: 30 October 2024 | Member: Elizabeth Medland

Torsney v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 613

Motor Accident Injuries Act 2017; miscellaneous claims assessment; claim for statutory benefits not made within 3 months after the motor accident under section 6.13; whether the claimant has provided a full and satisfactory explanation for the delay in making the claim; factors relevant for the explanation to be “satisfactory”; Held – claimant has provided a full and satisfactory explanation; the claim for statutory benefits dated 2 May 2024 may be made.

Decision date: 1 November 2024 | Member: Jeremy Lum

Allianz Australia Insurance Limited v Al Diwana [2024] NSWPIC 614

Motor Accident Injuries Act 2017; claimant’s application for miscellaneous claims assessment of whether, under section 3.11, he was wholly or mostly at fault; claimant rode bicycle onto pedestrian crossing in heavy traffic; insured motor vehicle rolled onto pedestrian crossing and collision occurred; parties agreed to on the papers assessment; Insurance Australia Limited t/as NRMA v Richards referred to in regards to onus of proof; AAI Limited t/as GIO v Evic followed with respect to approach to determining whether claimant wholly or mostly at fault; Allianz Australia Insurance Limited v Shuk followed in regards to apportionment of culpability; findings made that both claimant and insured riding or driving no more than 10 kmph; claimant knew traffic was banked up and knew insured was there; member not satisfied claimant stopped before crossing and that front of insured vehicle hit the claimant’s front wheel; Held – claimant departed from the standard of care; insured driver breached her duty of care; relative culpability assessed equally; as claimant’s contributory negligence was assessed at 50% he was not wholly or mostly at fault.

Decision date: 4 November 2024 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

BKS v Swissport Australia Pty Ltd ATF Aero-Care Flight Support Unit Trust [2024] NSWPIC 407

Workers Compensation Act 1987; dispute in respect to injury to the cervical spine; accepted injuries to left and right upper extremities; dispute in respect to referral of carpal tunnel syndrome to Medical Assessor for impairment assessment; claim pursuant to section 66 for permanent impairment compensation; Kooragang Cement Pty Ltd v Bates and Mason v Demasi considered and applied; Held – there is an award for the respondent in respect to injury to the cervical spine; the bilateral carpal tunnel syndrome to be referred to the Medical Assessor for assessment of impairment.

Decision date: 29 July 2024 | Senior Member: John Turner

McGrane v Kmart Australia Ltd [2024] NSWPIC 610

Consideration of whether the provisions of section 9B of the Workers Compensation Act 1987 are engaged in relation to the claim for hypertension so that the applicant is precluded from receiving compensation; Held – section 9B is not engaged; alternate finding of the nature of employment giving rise to a significantly greater risk of injury that had the worker not been in that employment.

Decision date: 30 October 2024 | Senior Member: Elizabeth Beilby

Bennett-Hillier v Wyong Race Club Ltd [2024] NSWPIC 611

Claim for a general order for the payment of medical expenses for injury and/or consequential condition to the cervical spine; consideration of Fox v Percy in making factual finding as to whether the worker sustained an injury in the course of his employment with the respondent; consideration of Moon v Conmah Pty Limited on determination of a consequential condition; Held – worker did not sustain an injury to his cervical spine in the course of his employment with the respondent; the worker has suffered a consequential condition affecting his cervical spine as a result of injury to lower back; order that the respondent is to pay reasonably necessary medical expenses for treatment of the cervical spine as a consequence of the injury to the worker’s lower back.

Decision date: 30 October 2024 | Member: John Isaksen

Grey v Endeavour Energy [2024] NSWPIC 612

Industrial deafness; claim for hearing aids and table microphone; multiple causes and material contribution; Murphy v Allity Managements Services Pty Ltd considered; Held – award in favour of the applicant.

Decision date: 31 October 2024 | Member: Michael Wright

Panuccio v ZWF Act Pty Ltd [2024] NSWPIC 615

Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for proposed lumbar surgery; accepted lumbar injury; whether the proposed surgery is reasonably necessary as a result of that injury; relatively mild radiological findings; whether inconsistencies in presentation; where applicant had undergone extensive conservative management of symptoms; Held – the proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the surgery.

Decision date: 4 November 2024 | Member: Rachel Homan

Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617

Application for reconsideration of a Certificate of Determination issued by the Workers Compensation Commission; consideration of transitional provisions in Personal Injury Commission Act 2020 (PIC Act); clauses 14A, 14D and 14H of Sch 1 to the PIC Act; Dimos v Gordian Runoff Limited distinguished; whether applicant could rely on a body part not previously assessed for the purpose of deterioration; O’Callaghan v Energy World Corporation applied; exercise of discretion to set aside Certificate of Determination; Samuel v Sebel Furniture Limited considered; Held – Certificate of Determination of the Workers Compensation Commission became a decision of the Personal Injury Commission on 1 March 2021; section 57 of the PIC Act accordingly applied; alternatively applicant had an “unexercised right” under clause 14D; body part could not be added for the purpose of deterioration; discretion to rescind certificate declined.

Decision date: 5 November 2024 | Member: Parnel McAdam

Motor Accidents Medical Review Panel Decisions

Ullah v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 747

Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor Wallace’s assessment of 10% whole person impairment (WPI); claimant alleged injuries to cervical, thoracic and lumbar spines and both shoulders; rib injuries assessed by another Medical Assessor; claimant was a taxi driver involved in a three-vehicle collision; issues of causation, consistency and assessment; Medical Review Panel (Panel) found claimant did sustain soft tissue injuries to his spine but was not satisfied there was any frank or specific injuries to the shoulders; Panel also not satisfied any shoulder symptoms and restriction of motion caused by the neck injury; claimant’s shoulder movements inconsistent and Panel not satisfied any impairment to the shoulder was accident-related; Held – Panel assessed 5% WPI on basis of lumbar spine injury only; Medical Assessment Certificate revoked; no matter as to principle.

Decision date: 31 October 2024 | Panel Members: Member Belinda Cassidy, Dr Rhys Gray, and Dr Thomas Rosenthal | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Huang [2024] NSWPICMP 749

Review of medical assessment under section 7.26 of the Motor Accident Injuries Act 2017; Medical Assessor certified that post-traumatic stress disorder caused by the accident gave rise to a permanent impairment of 15%, and that the impairment is greater than 10%; Held – as a result of the accident the claimant developed post-traumatic stress disorder that gave rise to a permanent impairment of 15%; assessment confirmed.

Decision date: 1 November 2024 | Panel Members: Senior Member Brett Williams, Dr Paul Friend, and Dr Gerald Chew | Injury module: Mental and Behavioural

Greco v AAI Limited t/as GIO [2024] NSWPICMP 750

Review of certificate of Medical Assessor McGrath dated 10 December 2023; claimant injured in a rear-end collision on a country highway on 26 November 2021; assessment by the Medical Review Panel (Panel) of whether the claimant suffered a threshold injury to his lumbar spine and an annulus tear at the T12/L1 level; claimant did not have an MRI scan of his lumbar spine until 9 February 2022, shortly after he had suffered an assault by way of a push to his back in a shopping centre car park; no tear discovered; claimant had his next MRI scan on 23 June 2023 which demonstrated a posterior annulus tear at T12/L1; possibility that claimant may also have suffered an injury to his spine during course of lifting heavy materials at work; Held – a T12/L1 injury is a thoracic injury under the Motor Accident Guidelines; Panel was not satisfied that the claimant suffered a low thoracic disc lesion in the accident or an annulus tear at T12/L1; Panel satisfied that MRI scan findings of 9 February 2022 indicate that endplate irregularities at T10/11 and T12/L1 reflect a developmental condition being Scheuermann’s disease and an annulus fissure that exists in the area of developmental change is considered to be an incidental finding in this case; certificate of Medical Assessor McGrath affirmed.

Decision date: 1 November 2024 | Panel Members: Member Alexander Bolton, Dr Alan Home, and Dr Michael Couch | Injury module: Spine

Janiv v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 752

Motor Accident Injuries Act 2017; threshold injury; replacement certificate left knee ACL rupture; medial and lateral meniscus tears; finding of determination of threshold injury; statutory provisions; lumbar spine issues and sciatica; significant amount of material noting pre-existing condition; prior left knee injury; cruciate and medial meniscus tears confirmed to pre-date accident; need for surgery; investigations; contemporaneous documentation supports injury to knee; radiology not sufficiently accurate to determine whether meniscal tears extended; Held – non-threshold injury.

Decision date: 4 November 2024 | Panel Members: Member Hugh Macken, Dr Mohammed Assem, and Dr Thomas Rosenthal | Injury module: Lower Limb

Pechimuthoo v AAI Limited t/as AAMI [2024] NSWPICMP 753

Motor Accident Injuries Act 2017; permanent impairment; review of certificate of Medical Assessor (MA) Home dated 26 February 2024 which assessed that claimant had 0% whole person impairment; accident 17 June 2020 when insured car rear-ended the claimant’s car; claimant alleges upper and lower limb injuries with thoracic and lumbar spine injury; claimant already had left ankle condition requiring operations and with further ankle surgery proposed; re-examination with both medical assessors; left foot, leg arm and hand, no accident related documented complaints; accident was capable of injuring thoracic and lumbar spine; DRE 1 with 0% permanent impairment; accident-related scarring barely visible; subject accident exacerbated left ankle symptoms; Medical Review Panel (Panel) found medicolegal ankle assessment in 2018 and subsequent treating information made it possible to calculate pre-accident permanent impairment at 5%; subject accident related ROM 4% permanent impairment resulting in 0%; same outcome as original assessment but different clinical findings; Held – different clinical findings to original assessment; Panel revoked original Medical Assessment Certificate.

Decision date: 4 November 2024 | Panel Members: Member Terence O’Riain, Dr Shane Moloney, and Dr Rhys Gray | Injury module: Spine, Upper Limb, Lower Limb, and Skin

AAI Limited t/as GIO v Aiono [2024] NSWPICMP 754

Motor Accident Injuries Act 2017; insurer’s review under section 7.26 of Medical Assessor Bodel’s assessment of whole person impairment (WPI) at 12%; claimant alleged injuries to neck, lower back (transverse L4 and L5 fractures), left shoulder and arm, chest and abdomen, both knees and legs; the insurer raised issued of causation in the light of the claimant’s improvement recorded in the GP notes and elsewhere; on examination there was inconsistency and the claimant was difficult to examine; Held – WPI 5%; Medical Assessment Certificate revoked; no issue as to principle.

Decision date: 4 November 2024 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, and Digestive System

Portillo-Vera v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 758

Motor Accident Injuries Act 2017; review of medical assessment as to whether the claimant suffered a threshold psychological injury; claimant involved in low speed rear-end collision in the carpark; in the aftermath of the collision he was confronted with aggressive behaviour from the insured driver and other drivers wishing to exit the carpark; dispute as to whether the psychological injury was caused by a motor accident; Held – persistent depressive disorder not caused by the motor accident and was caused by the events that followed the collision which the Panel considered were not part of the motor accident; the collision caused no more than a negligible contribution to the psychological disorder; consideration of Ackling v QBE Insurance (Australia) Ltd, AAI Ltd v State Insurance Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales), Allianz Australia Insurance Limited v Gonzales, and Pham v NRMA Insurance Limited.

Decision date: 6 November 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Canaris, and Dr Matthew Jones | Injury module: Mental and Behavioural

AAI Limited t/as AAMI v Barkho [2024] NSWPICMP 759

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 25 April 2022; Medical Assessor Home determined the claimant’s permanent impairment at 11%; the Medical Review Panel (Panel) conducted its own examination and considered the claimant’s pre-existing impairment; the Panel confirmed the injuries caused by the accident gave rise to a 7% whole person impairment; the certificate of Medical Assessor Home was revoked.

Decision date: 6 November 2024 | Panel Members: Member Terence Stern OAM, Dr Rhys Gray, and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Lister v State of New South Wales (NSW Ambulance Service) [2024] NSWPICMP 745

The appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS), namely ‘self-care and personal hygiene’ and concentration, persistence and pace (cpp); Held – Medical Appeal Panel found no errors; the Medical Assessment Certificate (MAC) was thorough and well-reasoned; MAC confirmed.

Decision date: 30 October 2024 | Panel Members: Member Deborah Moore, Dr John Baker, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Patel v Hygiclean Australia Pty Ltd ATF The Endeavour [2024] NSWPICMP 746

Appeal against finding that a new injury had occurred which had been responsible for ¾ of the assessed 44% impairment; whether incorrect criteria applied in finding new injury (neurocognitive disorder likely due to Alzheimer’s disease); whether demonstrable error in failure to give adequate reasons for so finding; whether finding a subsequent injury was beyond power; whether applying the principles in Oatley was beyond power; Held – the Medical Assessor (MA) had issued an earlier Medical Assessment Certificate (MAC) that maximum medical improvement  MMI not reached, and made recommendations therein for further tests to be obtained regarding differential diagnoses; current Medical Appeal Panel (Panel) for re-assessment did not have the recommendations acted on, as expert report lodged in response failed to consider them, claimant illiterate and largely mute in most presentations to doctors; further documentation called for by Panel; no evidence therein of any cognitive testing, diagnosis made on clinical criterion of claimant’s presentation, but many objective tests available for proper diagnosis; MAC revoked and MMI reinstated pending proper investigation; MA’s finding of subsequent injury beyond power; MA’s interpretation of Oatley beyond power; MA’s application of Oatley incorrect in any event; observations on template [8g] being contrary to law; Wingfoot Australia Partners Pty limited v Kocak, Skates v Hills Industries Ltd, Oatley, and Bunnings Group Ltd v Davis considered and applied.

Decision date: 30 October 2024 | Panel Members: Member John Wynyard, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Secretary, Department of Education v Kennaway [2024] NSWPICMP 751

Workplace Injury Management and Workers Compensation Act 1998;psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories because of an inadequate path of reasoning, namely employability and in addition, in respect of the deduction of one-tenth made under section 323; Held – Medical Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate revoked.

Decision date: 1 November 2024 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Lagana v MCBC Group Pty Ltd [2024] NSWPICMP 755

Workplace Injury Management and Workers Compensation Act 1998;appeal in respect of a 100% deduction pursuant to section 323 for a pre-existing condition; parties agreed that worker had a consequential condition in the right shoulder following injury to the left shoulder on 17 December 2019; Medical Assessor (MA) determined that there was no consequential condition in the right shoulder and deducted 100% of the 11% whole person impairment assessed in the right shoulder; MA erred in determining there was no consequential condition in the right shoulder and also in failing to provide adequate reasons; Medical Appeal Panel reviewed the evidence and deducted one half pursuant to section 323; Held – Medical Assessment Certificate revoked.

Decision date: 4 November 2024 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni, and Dr Roger Pillemer | Body system: Left Upper Extremity, Right Upper Extremity, Upper Gastrointestinal Tract, and Scarring

Zoric v Secretary, Department of Education [2024] NSWPICMP 756

Workplace Injury Management and Workers Compensation Act 1998; remitter after judicial review; leave granted to add grounds of review of deterioration and availability of additional relevant information; re-examination; has been deterioration but current treatment inadequate and not therapeutic; worker’s condition has not reached maximum medical improvement; Held – Medical Assessment Certificate revoked.

Decision date: 4 November 2024 | Panel Members: Member Catherine McDonald, Dr John Baker, and Dr Michael Hong | Body system: Psychological/Psychiatric

Aruma Services Ltd v Sherwood [2024] NSWPICMP 757

Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria in Medical Assessor’s assessment of Class 3 in the psychiatric impairment rating scales of social functioning and concentration, and persistence and pace; whether demonstrable error in the addition for effects of treatment; failure to take into account relevant considerations; Medical Appeal Panel satisfied that Medical Assessment Certificate (MAC) affected by demonstrable error; Class 2 more appropriate in both relevant scales; 2% addition for treatment effect appropriate; Held – MAC revoked.

Decision date: 4 November 2024 | Panel Members: Member Rachel Homan, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric

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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