Legal Bulletin No. 189

Issued 29 November 2024

Welcome to the one hundred and eighty ninth 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 (Department of Primary Industries) v Legrand [2024] NSWPICPD 74

Contents of medical notes to be approached with care; Mason v Demasi [2009] NSWCA 227 applied; causation; excess alcohol consumption as a pain alleviating method in respect of accepted injuries found to cause consequential liver condition; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Held – the Certificate of Determination dated 7 December 2023 is confirmed.

Decision date: 20 November 2024 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as GIO v Amin [2024] NSWPIC 521

Motor Accident Injuries Act 2017; proposed settlement; claimant 36 years old; liability admitted; economic loss damages only; claimant returned to full time work; Held – settlement approved; $90,000 is just, fair and reasonable, within the likely potential damages assessments taking into account the nature and extent of the claim.

Decision date: 19 September 2024 | Member: Elyse White

Mabbott v AAI Limited t/as GIO [2024] NSWPIC 581

Motor Accident Injuries Act 2017; claim for damages; liability not in issue; not entitled to damages for non-economic loss; claimant 19 years old at the time he was injured as a pedestrian in motor accident on 3 November 2020; the insured driver allegedly attempted to run him over and claimant jumped out of the way of vehicle and in doing so his right hand and wrist hit windshield and mirror; injuries to a number of body parts alleged, and accepted by medical assessor; however, found that no body part injured other than right wrist; evidence does not establish issue of causation to any other body part; apprentice painter at time of accident; after some rehabilitation efforts the claimant found alternative employment as a traffic controller; alleged psychological issues exacerbated by traffic control work; now has own lawn mowing business; Held – reasonable on the evidence to have left his employment; damages for past and future economic loss assessed at $192,752.82 plus costs.

Decision date: 18 October 2024 | Member: Elizabeth Medland

AAI Limited t/as AAMI v Martinez [2024] NSWPIC 582

Motor Accident Injuries Act 2017; proposed settlement; claimant 61 years old; liability admitted; economic loss damages only; claimant recommended to engage in treatment to assist with a return to part-time employment; Held – settlement approved; $335,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the claim.

Decision date: 18 October 2024 | Member: Elyse White

Insurance Australia Limited t/as NRMA Insurance v Bakas [2024] NSWPIC 589

Motor Accidents Compensation Act 1999; assessment of damages; claim for past and future economic loss; future treatment expenses; future commercial care; self-employed painter; inexact historian; need to support allegations of loss with documents; minor impairment of earning capacity; complex medical material; arduous physical employment activities; calculation of past economic loss; buffer future economic loss; no ongoing treatment; no future economic loss; Held – damages assessed at $146,327.87; claimant’s costs assessed at $55,854.99.

Decision date: 21 October 2024 | Member: Hugh Macken

QBE Insurance (Australia) Limited v Gilbey [2024] NSWPIC 633

Motor Accident Injuries Act 2017; medical assessment found that claimant sustained a non-threshold psychological injury; insurer served a liability notice accepting that the claimant suffered a non-threshold injury; insurer then filed an application to review the medical assessment; claimant asserted that there was no medical dispute; Commission has power to determine whether there is a medical dispute according to Smalley v Motor Accidents Authority of New South Wales; principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority applied; contextual considerations and discussion of medical assessment procedures; insurer had statutory right to seek a review of the medical assessment; doubt that an admission of non-threshold injury was an admission of liability for part of a claim as it does not constitute an admission that there is a pecuniary obligation to pay damages; Held – claimant’s application to dismiss the insurer’s application for assessment of medical dispute rejected.

Decision date: 29 October 2024 | Principal Member: John Harris

QBE Insurance (Australia) Limited v Yao [2024] NSWPIC 635

Motor Accident Injuries Act 2017; settlement approval; 38-year-old driver of a motor vehicle involved in a head-on collision with the insured vehicle, claimant sustained soft tissue injuries to neck and back, and also suffered a psychological injury; claimant met the criteria for adjustment disorder with mixed anxiety and depressed mood; insurer wholly admitted liability and conceded non-threshold injury; insurer conceded entitlement to past and future economic loss, claimant is an accountant by profession, was absent for work for a period of 3 months post-accident and thereafter returned to work on a full time basis; total amount of damages proposed is $89,092.97 less statutory payments; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 13 November 2024 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Phan v Elcon Cables Pty Ltd t/as Elcon Cable Processors [2024] NSWPIC 634

Personal Injury Commission Act 2020 (PIC Act); Workers Compensation Act 1987 (1987 Act); section 57 of the PIC Act; reconsideration application; applicant sustained a lumbar spine injury which was assessed at 12% whole person impairment in a Medical Assessment Certificate (MAC); the applicant appealed the MAC to a Medical Appeal Panel which confirmed the MAC; the former Workers Compensation Commission (WCC) issued a Certificate of Determination (COD) confirming the MAC and entitlement to section 66 of the 1987 Act; the applicant’s condition deteriorated post-establishment of the Personal Injury Commission (Commission); jurisdiction of the Commission to reconsider former WCC decisions for the limited basis of a threshold dispute; Secretary, Department of Communities & Justice v Cannell considered and applied; Held – the applicant’s application for reconsideration of the COD dismissed.

Decision date: 8 November 2024 | Member: Kathryn Camp

Symons v Secretary, Department of Communities and Justice [2024] NSWPIC 636

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); pre-injury average weekly earnings (PIAWE); change of an ongoing nature to the employment arrangement; definition of “earnings”; clause 8C of the Workers Compensation Regulation 2016; clause 6(1) of Schedule 3 to the 1987 Act; temporary assignment; annual leave; sick leave; leave to rely on additional issues; section 287A of the 1998 Act; benefit of finality; prejudice; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services; Secretary, Department of Communities and Justice v Farrugia; Aon Risk Services Australia Ltd v Australian National University; Lismore City Council v Garland; Secretary, Department of Communities and Justice v Stewart; Held – the change in the applicant’s employment with the respondent during the period 5 June 2023 to 8 October 2023 was temporary; the applicant’s “earnings” when calculating her PIAWE include payments of sick leave and annual leave paid to the worker during the relevant week; the respondent to pay the applicant weekly compensation.

Decision date: 13 November 2024 | Member: Mitchell Strachan

Graham v Lutheran Aged Care Albury [2024] NSWPIC 637

Workers Compensation Act 1987; claim for compensation for one day of incapacity to attend a medical appointment; worker now earning more than pre-injury average weekly earnings; sections 9, 33, 36 and clause 9 of Schedule 3; Held – award for the respondent for one day of incapacity.

Decision date: 13 November 2024 | Member: Catherine McDonald

Jesionkowski v Illawarra Retirement Trust [2024] NSWPIC 638

Workers Compensation Act 1987; undisputed injury to the lumbar spine in fall at work; surgery sought for cervical spine; injury to or consequential condition in the cervical spine disputed; evidence weighed in the balance and held not satisfied on the balance of probabilities that the applicant had suffered an injury to the cervical in the fall or that the applicant had suffered a consequential condition in her cervical spine as a result of the injury to the lumbar spine; Held – award for the respondent.

Decision date: 13 November 2024 | Member: Jane Peacock

Vanstone v Uniting (NSW/ACT) - Springwood Uniting Aged Care Facility [2024] NSWPIC 639

Workers Compensation Act 1987; work capacity dispute; claim for weekly payments under section 38; worker’s left arm functionally useless; claimed consequential conditions in the right wrist and shoulder; whether a “downgrade” needs to be explained; Wollongong Nursing Home v Dewar applied; Held – applicant suffered consequential condition in the right wrist; award for respondent for right shoulder; applicant had no current work capacity and likely to continue indefinitely to have no current work capacity; award for weekly payments in section 38 period.

Decision date: 15 November 2024 | Member: Parnel McAdam

Soca v Iqvia Solutions Australia Pty Ltd [2024] NSWPIC 640

Workers Compensation Act 1987; section 11A; whether redundancy reasonable; manner in which redundancy decision made; manner in which redundancy decision communicated; satisfaction of onus by respondent; Irwin v Director-General of Education; Pirie v Franklins Ltd; Department of Education and Training v Sinclair; Commissioner of Police v Minahan; Ritchie v Department of Community Services; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd; Held – respondent failed to meet onus in establishing redundancy was reasonable; the manner in which the redundancy process was undertaken and communicated was not reasonable.

Decision date: 15 November 2024 | Member: Mitchell Strachan

King v Camden Council [2024] NSWPIC 642

Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury; injury not in issue; respondent relied on defences under section 11A in respect of provision of employment benefits, transfer and discipline; the applicant transferred to working part-time under a trial Flexible Work Arrangement (FWA) which she believed would be made permanent; after two extensions thereof, the applicant was directed to return to full-time employment; the applicant submitted that the respondent could not rely on any of the three section 11A categories; Held – the respondent could rely on these categories; the respondent put in issue factual matters alleged by the applicant in respect of the actions of its employees in communicating cessation of the FWA to the applicant; detailed examination of the evidence in respect of the disputed factual matters; the respondent’s actions with respect to transfer and discipline were reasonable; award for the respondent.

Decision date: 18 November 2024 | Member: Brett Batchelor

Motor Accidents Medical Review Panel Decisions

Russell v Allianz Australia Insurance Limited [2024] NSWPICMP 720

Motor Accident Injuries Act 2017 (MAI Act); medical review of medical assessment; whether psychological injury is a threshold injury for the purposes of the MAI Act; claimant has a background of psychological symptoms; original medical assessor found the claimant suffered from pre-existing psychological disorders and the motor accident did not cause a psychological injury; Medical Review Panel found that the diagnostic criteria for posttraumatic stress disorder is not met; diagnosis of adjustment disorder caused by the motor accident, which is a threshold injury for the purposes of the MAI Act; original certificate revoked and new certificate issued.

Decision date: 17 October 2024 | Panel Members: Member Elizabeth Medland, Dr Christopher Rikard-Bell, and Dr Doron Samuell | Injury module: Mental and Behavioural

Jones v AAI Limited t/as AAMI [2024] NSWPICMP 748

Motor Accident Injuries Act 2017 (MAI Act); review of single medical assessment; whether the claimant has suffered a psychological injury that is a threshold injury for the purposes of the MAI Act; claimant submitted to have suffered post-traumatic stress disorder as diagnosed by general practitioner and treating psychologist; diagnosis of adjustment disorder to be viewed with caution due to language barriers; found that the criteria for post-traumatic stress disorder is not met; the claimant suffered a pre-existing adjustment disorder with mixed anxiety and depressed mood which has been aggravated by the motor accident and is a threshold injury for the purposes of the MAI Act; Held – Medical Assessment Certificate revoked and new certificate issued.

Decision date: 31 October 2024 | Panel Members: Member Elizabeth Medland, Dr Wayne Mason, and Dr Surabhi Verma | Injury module: Mental and Behavioural

Alvarez v AAI Limited t/as GIO [2024] NSWPICMP 771

Motor Accident Injuries Act 2017; review of medical assessment; assessment of degree of permanent impairment; left shoulder, rotator cuff tear and adhesive capular; aggravation of pre-existing chronic tendinosis and bursitis; medical dispute requiring re-examination; prior injuries including fractured left clavicle and rib fractures; prior surgical procedures; neck stiffness, bilateral shoulder pain; documentation included clinical notes; neurological examination; assessing permanent impairment of the shoulders is by analogy; range of motion; Held – Medical Assessment Certificate revoked; new certificate issued.

Decision date: 15 November 2024 | Panel Members: Member Hugh Macken, Dr Tania Rogers, and Dr Shane Moloney | Injury module: Upper Limb

AAI Limited t/as GIO v Pearce [2024] NSWPICMP 773

Motor Accidents Compensation Act 1999; alleged psychiatric/psychological injury; medical assessment of whole person impairment (WPI) by a Medical Assessor (MA) who determined that the claimant had a WPI not greater than 10%, that is, 7% WPI; further medical assessment of WPI by another MA determined that the claimant had a WPI greater than 10%, that is, 22%; review sought by insurer under section 63; clauses 1.5, 1.6, 1.7, 1.203 and 1.213 of the Motor Accident Permanent Impairment Guidelines in respect of mental and behavioural disorders considered and applied; Held – Medical Review Panel (Panel) revoked the certificate issued by MA Smith dated 21 April 2023; the Panel certified that the claimant sustained a post-traumatic stress disorder and persistent depressive disorder with anxious distress caused by the motor accident on 24 March 2017 that gave rise to a WPI which is not greater than 10%, that is, 8%.

Decision date: 18 November 2024 | Panel Members: Member Anthony Scarcella, Dr Wayne Mason, and Dr Yu Tang Shen | Injury module: Mental and Behavioural

Miles v QBE Insurance (Australia) Limited [2024] NSWPICMP 774

Motor Accident Injuries Act 2017 (MAI Act); permanent impairment; certificate of Medical Assessor (MA) Kenna dated 23 August 2023 assessed claimant had 6% whole person impairment; accident on 18 February 2019 when insured car rear-ended the claimant’s motorbike; MA Kenna examined claimant when claimant was experiencing psychological and physical breakdown; Commission referred upper and lower limb injuries with cervical and lumbar spine injury to assess; insurer and MA Kenna rejected accident nexus with spinal conditions due to lack of contemporaneous complaint; claimant had right ankle condition before accident; left ankle injured in accident; frank injuries in right shoulder and right knee with consequential injuries claimed in opposite limbs; re-examination after claimant underwent extensive inpatient psychiatric treatment; claimant was cooperative and consistent; accident was capable of causing all referred injuries; 24% permanent impairment; different clinical findings; Held – different clinical findings to original assessment; Medical Review Panel revoked original Medical Assessment Certificate; permanent impairment greater than 10%.

Decision date: 19 November 2024 | Panel Members: Member Terence O’Riain, Dr Drew Dixon, and Dr David Gorman | Injury module: Spine, Upper Limb, and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Hakainsson v Direct Group Pty Ltd [2024] NSWPICMP 761

Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made under section 323(1) involved error; whether appellant had a pre-existing condition; Held – the appellant had a pre-existing condition and that condition contributed to her present permanent impairment; MA was correct to engage section 323(1) and the deduction he made did not involve error; Medical Assessment Certificate confirmed.

Decision date: 6 November 2024 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr Todd Gothelf | Body system: Lumbar Spine

Goodstart Early Learning Ltd v Holmes [2024] NSWPICMP 770

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale; Ballas v Department of Education (State of NSW); Tasevski v Westpac Banking Corporation; paragraphs 1.6 and 11.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 March 2021; section 323 deduction; Marks v Secretary, Department of Communities and Justice; Held – Medical Assessment Certificate revoked.

Decision date: 13 November 2024 | Panel Members: Member Catherine McDonald, Professor Nicholas Glozier, and Dr Ash Takyar | Body system: Psychological/Psychiatric

Kearney v Barnsley Cabinet Detailers Pty Ltd [2024] NSWPICMP 772

Workplace Injury Management and Workers Compensation Act 1998; appeal against Table of Disabilities assessment; whether Medical Assessor (MA) complied with terms of referral; whether MA ignored a prior complying agreement; whether MA gave adequate reasons; Held – MA misquoted the terms of the referral, applied objective tests to a pre-2002 referral and failed to give reasons as to why he did not examine all of the body parts referred; Medical Assessment Certificate revoked and after re-examination, new certificate issued.

Decision date: 15 November 2024 | Panel Members: Member John Wynyard, Dr John Brian Stephenson, and Dr Margaret Gibson | Body system: Neck, Back, Right Arm At or Above the Elbow, Left Arm At or Above the Elbow, Right Leg At or Above the Knee, and Left Leg At or Above the Knee

Motor Accidents Merit Review Decisions

Johnson v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 68

Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CL Act); dispute as to entitlement to statutory benefits; claimant alleges mental harm due to her granddaughter being involved in a serious motor accident and suffered significant burn injuries; liability denied on the basis that the claimant is not a “close family member” for the purposes of Part 3 of the CL Act; claimant attended the hospital after the accident and assumed care of her granddaughter whilst she was admitted for a lengthy period; the Family Court later issued interim parenting orders granting claimant sole parental responsibility; Held – the insurer’s liability is invoked by the injury itself and the injury can occur after the occurrence of the motor accident; the injury occurred at the time that the claimant had parental responsibility and therefore the insurer is liable to pay statutory benefits.

Decision date: 26 September 2024 | Merit Reviewer: Elizabeth Medland

Scattergood v Allianz Australia Insurance Limited [2024] NSWPICMR 72

Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; insurer’s application for merit review in respect of insurer’s determination of the amount of statutory benefits that are payable under Division 3.3 of the MAI Act; merit review matter under Schedule 2.3(b) of the MAI Act; insurer does not accept the injury sustained by the claimant was as a result of a motor accident as defined under the MAI Act; claimant was a passenger injured whilst boarding the insured bus; insurer accepts the injury has occurred during the driving of the vehicle, but does not accept the injuries sustained by the claimant have resulted from a motor vehicle accident, but rather the claimant tripped over his own feet, and the motion of the bus did not cause him to lose his balance and fall to the floor of the bus; CCTV footage of the incident available to both parties determined the claimant did not trip over his own feet and furthermore the driving of the bus caused him to lose his balance and fall to the floor of the bus; Held – decision of the insurer is set aside; the claimant is entitled to statutory benefits pursuant to section 3.1.

Decision date: 18 November 2024 | Merit Reviewer: David Ford

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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