Legal Bulletin No. 188

Issued 22 November 2024

Welcome to the one hundred and eighty eighth 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 Decisions

State of New South Wales (NSW Police Force) v Culhana [2024] NSWPICPD 73

Sufficiency of evidence to prove causal nexus between post-traumatic stress disorder and death from adenocarcinoma; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 and Fuller-Lyons v State of New South Wales (No. 3) [2013] NSWSC 1672 considered and applied; use of inappropriate grounds of appeal adopted from language of administrative law; Held – the Certificate of Determination dated 17 May 2024 is confirmed; remit the matter to the Member for determination of the outstanding issues; if the appellant wishes to make a submission in respect of costs it should lodge and serve the submission within seven days.

Decision date: 12 November 2024 | Before: Acting Deputy President Paul Sweeney

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Wong [2024] NSWPIC 620

Motor Accident Injuries Act 2017; settlement approval; pedestrian hit by car; insured turning left; contributory negligence; no reduction for contributory negligence; past economic loss calculations; fracture to right knee; injury to right ankle; return to work on reduced hours and working restrictions; calculations to age 70; deductions for payments made; medical restrictions on employment type; both parties requesting settlement; precise calculations of past economic loss; Held – settlement approved.

Decision date: 5 November 2024 | Member: Hugh Macken

Young v QBE Insurance (Australia) Limited [2024] NSWPIC 621

Motor Accident Injuries Act 2017; claimant 46 years old; liability denied; claimant riding motorcycle when an unidentified vehicle without warning made a sudden lane change into his path causing the crash; claimant the only witness; both experts opposing opinions on cause of crash; claimant a qualified electrician with inconsistent work history; Held – cause of accident wholly the fault of the unidentified vehicle; no reduction for contributory negligence; past and future economic loss assessed as a buffer totalling $280,000 less statutory benefits paid.

Decision date: 6 November 2024 | Member: Elyse White

Stephens v AAI Limited t/as GIO [2024] NSWPIC 623

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4) ; claimant was riding a motorcycle which sustained a rear-end collision with the driver of the insured motorcycle; insurer admitted liability and no allegation of contributory negligence; claimant suffered multiple injuries including abrasions, internal bleeding, injury to cervical spine and right shoulder; claimant is a truck driver involved in road work construction; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss.

Decision date: 7 November 2024 | Member: David Ford

Zhao v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 624

Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 8 June 2019; the insurer wholly admitted liability for the claim; assessment of damages; dispute about causation and pre-existing injury; Watts v Rake, Purkess v Crittenden, Dal v Chol, Allianz Australia Insurance Ltd v Kerr, Nominal Defendant v Livaja, and Penrith City Council v Parks applied; Held – buffer for past and future economic loss assessed at $150,000.00; claimant’s costs assessed at $32,626.18 inclusive of GST.

Decision date: 7 November 2024 | Member: Terence Stern OAM

Earle-Joyce v AAI Limited t/as AAMI [2024] NSWPIC 626

Motor Accident Injuries Act 2017; whether accident caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28; where claimant’s vehicle crossed from the southbound lane to the northbound lane while navigating a sweeping left hand corner, left the road and collided with a tree; where claimant had no recollection of the accident and there were no witnesses; insurer relied on res ipsa loquitur to support an inference that the accident was caused by the claimant’s fault; AAI Limited t/as GIO v Evic; Insurance Australia Limited t/as NRMA v Richards; Schellenberg v Tunnel Holdings Pty Ltd; Piening v Wanless; Anchor Products Limited v Hedges; Davis v Swift; Vairy v Wyong Shire Council; Manley v Alexander; Australian Broadcasting Tribunal v Bond; Taitoko v R; Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd; Held – res ipsa loquitor arose for consideration; what occurred was sufficiently unusual to raise a probability that the course of the claimant’s vehicle was to be accounted for by some failure to exercise reasonable care; inference drawn that the accident was caused by the claimant’s failure to exercise reasonable skill and care in the driving of his vehicle; contributory negligence assessed at 60%; for the purposes of sections 3.11 and 3.28 the accident was not caused wholly by the fault of the claimant.

Decision date: 8 November 2024 | Senior Member: Brett Williams

El Shaimy v Transport Accident Commission [2024] NSWPIC 627

Motor Accident Injuries Act 2017; miscellaneous claim assessment; whether late claim can be made; the claimant was injured whilst travelling as a passenger on a bus along Stoney Creek Road in Berkshire Park; the vehicle at fault in the accident was registered in Victoria; an application for personal Injury benefits was served on the Nominal Defendant and the claim was allocated to NRMA Insurance; claimant provided an explanation for the delay in lodging his claim form more than three months after the accident; NRMA admitted liability for ongoing statutory benefits after twenty-six weeks, whilst investigations were continuing; Medical Review Panel determined that the claimant had a non-threshold injury more than three years after subject accident; an application for common law damages was served on insurer, who referred it to Transport Accident Commission as the insurer on risk for common law damages; claim rejected as being late; Held – Member satisfied as to full and satisfactory explanation for delay in making the claim; late claim may be made.

Decision date: 10 November 2024 | Member: Gary Victor Patterson

Workers Compensation non-Presidential Member Decisions

Shaukat v ACM Parts Pty Ltd [2024] NSWPIC 622

Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injuries to lumbar spine and left shoulder; whether applicant sustained cervical spine injury in same event; inconsistent recollections of the onset of symptoms; no record of cervical spine symptoms for approximately two years after the event; Held – applicant has not discharged his onus of establishing injury to the cervical spine; balance of matter remitted to President for referral to a Medical Assessor to assess permanent impairment.

Decision date: 6 November 2024 | Member: Rachel Homan

Acevedo-White v Secretary, Department of Education [2024] NSWPIC 625

Workers Compensation Act 1987; claim for weekly benefits and incurred medical expenses in respect of a psychological injury; quantification of the applicant’s ability to earn in suitable employment; whether work as a teacher or assistant principal in an alternative setting is suitable employment; Held – applicant had, in the relevant period, a present ability to earn $800 per week in suitable employment; awards for weekly compensation; general order for medical expenses.

Decision date: 7 November 2024 | Member: Rachel Homan

La Macchia v MCS Holdings (Australia) Pty Ltd [2024] NSWPIC 629

Workers Compensation Act 1987; claim for weekly compensation payments pursuant to section 37; journey claim; applicant injured in a motor vehicle accident while driving from home to place of work; requirement for applicant to use own motor vehicle as part of employment; microsleep claimed to have occurred immediately prior to accident; whether a real and substantial connection between employment and the accident; subsection 10(3A); Held – not a compensable journey; award for the respondent.

Decision date: 11 November 2024 | Member: Adam Halstead

Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 630

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); applicant sustained laryngeal injury in 2018; claim under section 66 of the 1987 Act for compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by Medical Assessor Williams; Medical Assessor Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by Medical Assessor Burns; Medical Appeal Panel dismissed the appeal, finding that error was that Medical Assessor Williams did not undertake the assessment; applicant initially filed further application pursuant to section 329(1)(a) of the 1998 Act alleging error by Medical Assessor Williams and seeking reconsideration of his assessment as an alternative to an appeal; finding that process is one medical assessment, and that applicant has exercised his one appeal against the medical assessment, applicant filed reconsideration application seeking to rely on section 329(1)(b) of the 1998 Act; discussion of authorities; requirement to read section 329(1)(b) contextually; earlier authorities pre-dated commencement of section 322A of the 1998 Act and finding in Sleiman v Gadalla Pty Ltd that applicant has only one appeal; finding that section 329(1)(b) of the 1998 Act not available in present circumstances; discretion to reconsider previous decision; finality of litigation compelling factor when present argument raised and not pressed in previous proceedings; Held – claim for reconsideration dismissed.

Decision date: 11 November 2024 | Principal Member: John Harris

Lavelle v Mid Richmond Neighbourhood Centre Inc & Ors [2024] NSWPIC 631

Workers Compensation Act 1987;claim for weekly compensation due to psychological injury; there was no dispute that the applicant was totally unfit for work due to a psychological injury; the dispute was if subsequent employment (after the first respondent) was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease or if there has simply been a continuation of the injury sustained with the first respondent; Held – subsequent employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease; the applicant’s injury with the first respondent simply continued in subsequent employment.

Decision date: 12 November 2024 | Senior Member: Elizabeth Beilby

Thompson v Original Mattress Factory Pty Ltd [2024] NSWPIC 632

Workers Compensation Act 1987; weekly payments; whether effects of accepted psychological injury have passed and any incapacity is caused by pre-existing condition; nature of injury; whether a separate condition or an aggravation of a pre-existing condition; extent and rate of any partial incapacity for employment; Held – the respondent has the onus of proving the effects of an accepted injury have passed; whether the cause of the applicant’s ongoing incapacity is the injury at issue is to be determined by a commonsense evaluation of the lay and medical evidence; having regard to the totality of the evidence, the applicant’s injury is in the nature of an aggravation of a pre-existing condition, the effects of which aggravation are ongoing; the applicant has ongoing partial incapacity for employment consistent with the certificates of capacity prepared by her general practitioner, of 8 hours per week at an hourly rate commensurate with that which she was earning with the respondent; respondent ordered to pay weekly compensation pursuant to section 37 from 26 June 2024 to date and continuing at the rate of $266.75 per week; the respondent is ordered to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60.

Decision date: 12 November 2024 | Member: Cameron Burge

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as AAMI v Carr [2024] NSWPICMP 762

Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor (MA) Kuru’s assessment of 14% whole person impairment (WPI); claimant involved in rear-end collision and thrusted her arms out to protect her terminally ill partner in the passenger seat and reached behind her to protect her daughter; claimant alleged injuries to the left shoulder for which she had surgery and right shoulder, neck, lower back, both knees and scarring; pre-accident records revealed complaints in all the injured body areas including tears of tendons in the shoulder and diagnosis of osteoarthritis in the knees; Medical Review Panel accepted claimant sustained soft tissue aggravations or exacerbations of previous conditions; Held – WPI assessed at 6%; certificate of MA Kuru revoked; no matter of principle.

Decision date: 7 November 2024 | Panel Members: Member Belinda Cassidy, Dr David Gorman, and Dr Tai-Tak Wan | Injury module: Spine, Upper Limb, Lower Limb, and Skin

Allianz Australia Insurance Limited v Alhamdani [2024] NSWPICMP 763

Motor Accident Injuries Act 2017; medical dispute as to whole person impairment; the claimant was riding his motorcycle west along Kenyons Road, Merrylands when the insured vehicle, travelling in the opposite direction, made a right-hand turn over the double lines, coming into the path of the claimant’s motorcycle; claimant attempted to avoid a collision but struck the left rear side of the insured vehicle; claimant was propelled forward and landed on the roadway on his left side; claimant was wearing a helmet and full protective clothing; pre-existing lumbar injury from previous motor accident; causation; whether apportionment appropriate absent objective evidence of pre-existing impairment; Held – Medical Review Panel revokes the certificate issued on 13 December 2023 by Medical Assessor Drew Dixon and issues a new certificate determining that the claimant’s permanent impairment is 12% and is greater than 10%.

Decision date: 7 November 2024 | Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Christopher Oates | Injury module: Spine, Upper Limb, Lower Limb, and Skin

Harb v Allianz Australia Insurance Limited [2024] NSWPICMP 767

Motor Accident Injuries Act 2017; injury in motor accident on 16 April 2020; claimant on push bike struck by insured vehicle; assessment of permanent impairment; review of assessment restricted to rib fractures and pneumothorax and left pleural effusion; claimant failed to attend two arranged medical examinations; warned prior to second failure that non-attendance would result in determination on the papers; no review of other medical assessment where finding made of 10% impairment; no evidentiary basis to assert that there is any assessable impairment due to the fractured ribs, pleural effusion and pneumothorax; doctor qualified by claimant assessed these body parts at 0%; Dr Shatwell found no impairment; scan evidence showed recovery; original Medical Assessor found no impairment; medically implausible that these injuries which had healed in accordance with unanimous medical evidence could result in disability; Guidelines require impairment of respiratory function for any assessable impairment; no evidence supporting impairment of respiratory function; Held – assessment of 0% permanent impairment confirmed.

Decision date: 11 November 2024 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Richard Haber | Injury module: Upper Limb and Respiratory System

Farr v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 768

Motor Accident Compensation Act 1999 (MAC Act); accident on 15 September 2017; claimant injured; dispute related to cervical discectomy and fusion; insurer’s review application; causation disputed; insurer alleges cervical condition due to accident has resolved and treatment is not reasonable and necessary; claimant re-examined; discussion of benefits of treatment; vague treatment aims; no current treating medical information; appropriate treatment; no radiculopathy or uncontrollable pain; conventional treatment could help and claimant still seeking conservative treatment; meaning of “reasonable and necessary in the circumstances” in section 83 discussed; no support for surgery; treating surgeon’s correspondence only proposes surgery after exhausting conservative treatment; preponderance of medical evidence including insurer’s specialist support accident aggravating degenerative condition; Held – accident caused injuries requiring treatment; proposed treatment not reasonable and necessary; original assessment revoked.

Decision date: 11 November 2024 | Panel Members: Member Terence O’Riain, Dr Sophia Lahz, and Dr Shane Moloney | Injury module: Spine

Workers Compensation Medical Appeal Panel Decisions

Abdolkarimi v Ruby Painting Services Pty Ltd [2024] NSWPICMP 760

Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker claims demonstrable error in Medical Assessor failing to provide adequate reasons for a one half deduction in whole person impairment for secondary psychological injury; consideration of Ausgrid Management Pty Ltd v Fisk and difficulty in the disentanglement of impairment for a secondary psychological injury from impairment for a primary psychological injury; Held – demonstrable error in failing to give adequate reasons; re-assessment of the psychiatric impairment rating scale categories; Medical Assessment Certificate revoked.

Decision date: 6 November 2024 | Panel Members: Member John Isaksen, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Waverley Council v Mahony [2024] NSWPICMP 764

Workplace Injury Management and Workers Compensation Act 1998; claim that Medical Assessor (MA) had found a brachial plexus injury that had not been referred to him; whether finding consistent with terms of referral; whether accurate diagnosis of that injury on the evidence justified MA’s action; whether reasons sufficient; Held – brachial plexus injury separate and distinct injury and had not been agreed as part of the medical dispute; Skates Skates v Hill Industries Ltd applied; applicant re-examined to confirm measurement of range of motion; whether diagnosis accurate irrelevant as no referral made; MA reasoning incorrect, as he assessed an injury not referred to him; Medical Assessment Certificate revoked.

Decision date: 7 November 2024 | Panel Members: Member John Wynyard, Dr Todd Gothelf, and Dr Alan Home | Body system: Right Lower Extremity and Left Lower Extremity

McKeown v Secretary, Department of Education [2024] NSWPICMP 765

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) was correct to make a deduction under section 323(1); whether MA took into account irrelevant matters with respect to the deduction he made under section 323(1); whether the deduction of 50% MA made under section 323(1) correct; whether MA’s ratings of appellant’s impairment in social and recreational activities, travel, social functioning, and concentration, persistence and pace correct; Held – MA took into account irrelevant factors with respect to the deduction he made under section 323(1); MA’s rating of appellant’s impairment in travel involved error; Medical Assessment Certificate (MAC) contained a demonstrable error; appellant re-examined; MAC revoked.

Decision date: 7 November 2024 | Panel Members: Member Marshal Douglas, Professor Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

McAusland v Secretary, Department of Communities and Justice [2024] NSWPICMP 766

Workplace Injury Management and Workers Compensation Act 1998;appeal by the Crown from an assessment pursuant to the Civil Liability Act 2002 for injury to an offender in custody; whether Medical Assessor (MA) erred in failing to separate primary from secondary psychological injury; whether MA erred by not discussing Chapter 11.3 and 11.4 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the Guidelines); whether MA failed to adequately consider the report of the Crown’s medico-legal expert; whether the Crown had been deprived of procedural fairness; Held – MA was not asked in the referral to consider the question of secondary psychological injury; Skates v Hill Industries Ltd considered and applied; the issue was not raised in the expert reports; Hancock v East Coast Timber Products Pty Ltd considered; no application in that regard was made to the Commission; State of New South Wales (NSW Department of Education) v Kaur considered and applied; validity of Chapter 11.3 of the Guidelines doubted in circumstances and if technically breached constituted no appealable error; Chapter 11.4 of the Guidelines not breached; Campbelltown City Council v Vegan and Wingfoot Australia Pty Ltd v Kocak considered and applied; procedural fairness available in sections 327(3)(b) and 328(3) of 1998 Act, but not sought; Shi v Transpace Pty Ltd & Ors considered and applied; MA’s consideration of medico-legal expert adequate; presumption of regularity considered and applied, citing Bojko v ICM Property Service Pty Ltd and Jones v The Registrar WCC; Medical Assessment Certificate confirmed.

Decision date: 8 November 2024 | Panel Members: Member John Wynyard, Dr Michael Hong, and Dr Graham Blom | Body system: Psychological/Psychiatric

Gooden v Secretary, Department of Education [2024] NSWPICMP 769

Workplace Injury Management and Workers Compensation Act 1998; medical appeal; challenge to psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene and concentration, persistence and pace; Medical Assessor took into account findings made on memory tests; factors outside of the criteria for that PIRS; class 3 correct on evidence; no error found in assessment of self-care; Held – Medical Assessment Certificate revoked.

Decision date: 12 November 2024 | Panel Members: Member Parnel McAdam, Dr Michael Hong, and Professor Nicholas Glozier | 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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