Legal Bulletin No. 191
This bulletin was issued on 13 December 2024
Issued 13 December 2024
Welcome to the one hundred and ninety first 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
Cheers v Mid Coast Council [2024] NSWSC 1553
Administrative law; judicial review; jurisdictional error; procedural fairness; decision of medical appeal panel; psychological injuries; failure of appeal panel to examine worker before rejecting findings of medical assessor and making unfavourable findings as to the worker’s veracity and credibility; judicial review; decision of medical appeal panel; failure to give proper, genuine and realistic consideration to worker’s case; lengthy reasons of appeal panel made only one brief reference to worker’s submissions; workers compensation; determination of degree of whole person impairment; psychological injury; challenge by employer to findings of medical assessor; assessment of reliability and veracity of worker; proper function of medical appeal panel; varying assessment of psychological injury without examining the worker; Held – Set aside the Medical Assessment Certificate issued by the Medical Appeal Panel dated 21 December 2023 and set aside the determination of the Medical Appeal Panel dated 15 January 2024.
Decision date: 4 December 2024 | Before: Basten AJ
Insurance Australia Limited t/as NRMA Insurance v Momand [2024] NSWSC 1529
Administrative law; judicial review; motor accident injury; whole person impairment based on PTSD; where President’s Delegate refused plaintiff’s application for medical assessment and medical assessment certificate to be referred to a review panel for review; whether failure to consider a substantial and clearly articulated argument; whether Delegate erred in decision to not allow a review of the medical assessment certificate; Held – the decision of the Delegate of the President of the Personal Injury Commission made on 8 February 2024 is quashed; the matter is remitted to the President of the Personal Injury Commission for determination of the application made by the plaintiff under section 7.26(1) of the Motor Accident Injuries Act 2017 (NSW) according to law.
Decision date: 4 December 2024 | Before: Price AJ
Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586
Administrative law; judicial review; determination of medical appeal panel; claim for workers’ compensation lump sum payment; answering application of request for referral for reconsideration; response to application not within functions of the appeal panel; determination of deduction for pre-existing injury; availability turned on issue of statutory construction; error of law on face of record (reasons of appeal panel); workers’ compensation; medical dispute; demonstrable error; failure to address part of dispute (scarring); request for reconsideration not determined; request referred to appeal panel; scarring not part of appeal; calculation of deduction for pre-existing injury; injury caused by nature and conditions of work; determining date of injury occurring by a gradual process; Held – set aside the determination of the Medical Appeal Panel of 13 November 2023; set aside the certificate issued by the Commission on 13 December 2023; direct that the President or his delegate determine whether to grant the claimant’s application for further consideration of the claim for scarring; if not, grant the claimant leave to amend his appeal to include the demonstrable error in that regard; and refer the medical dispute to a differently constituted medical appeal panel to be determined according to law.
Decision date: 11 December 2024 | Before: Basten AJ
Presidential Member Decisions
NSW Police Force v Fajloun [2024] NSWPICPD 77
Workers compensation; Pre-Filing Statement struck out by order of the President; sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987 considered and applied; Luke v McCarthy applied.
Decision date: 2 December 2024 | Before: President Judge Phillips
Mars Australia Pty Limited v Knight [2024] NSWPICPD 78
Workers compensation; adequacy of reasons; reasons delivered ex tempore; consideration of medical evidence; treatment of medical evidence; assessment of incapacity; discretion in refusing cross examination in Commission proceedings; Held – Certificate of Determination dated 1 December 2023 is amended to substitute in order 1 the date “18 July 2022” for “20 September 2021”; the Certificate of Determination is otherwise confirmed.
Decision date: 2 December 2024 | Before: Acting Deputy President Geoffrey Parker SC
Boyd v Secretary, Department of Education [2024] NSWPICPD 79
Workers compensation; doctrine of ‘comity’ does not apply to factual decisions; Comino v Kremitis; inferences pursuant to Jones v Dunkel; RHG Mortgage Ltd v 2 Ianni, Payne v Parker; ‘reasonable action’ in s 11A(1) of the Workers Compensation Act 1987; application of Northern New South Wales Local Health Network v Heggie; test of ‘reasonableness’ confers a wide discretion; Vines v Australian Securities and Investment Commission; error of the kind in House v The King; ‘disciplinary action’; application of Secretary, Department of Education v Uzunovska, Kushwaha v Queanbeyan City Council; Soutar v Commissioner of Police, Webb v State of New South Wales; Held – Certificate of Determination dated 10 November 2023 is revoked; matter is remitted to a different member for redetermination consistent with these reasons.
Decision date: 3 December 2024 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Baxter v AAI Limited t/as GIO [2024] NSWPIC 643
Motor Accident Injuries Act 2017 (MAI Act); culpability of claimant’s contributory negligence assessed at 20%; claimant was a front seat passenger in a motor vehicle which left the road and collided with a tree; claimant knew or ought to have known that the vehicle was fitted with airbags which were likely to be deployed on impact; expert evidence indicated that plaintiff's injuries to left ankle and hip were significantly aggravated by the fact that her feet were on the dashboard at the time of impact; claimant knew or ought to have known that by placing her feet on the dashboard, she was exposing herself to a foreseeable risk of injury which was not insignificant; Held – driver’s negligence/culpability major cause of injury suffered by the claimant, contributory negligence assessed at 20%; consideration of sections 5B and 5R of the Civil Liability Act 2002, Pennington v Norris Podbrebersek v Australian Iron & Steel Pty Ltd, Boral Bricks v Cosmidis (No. 2) and section 4.17 of the MAI Act.
Decision date: 20 November 2024 | Member: Michael Inglis
AAI Limited t/as GIO v Alder [2024] NSWPIC 657
Motor Accident Injuries Act 2017; section 6.23; settlement approval in the sum of $470,000; 69-year-old male cyclist struck by vehicle; non-economic loss of $350,000; numerous orthopaedic injuries, skin graft and scarring; considerable recovery at time of assessment; past economic loss; $20,000 buffer; future economic loss buffer $100,000; possible early retirement; Held – proposed settlement is just, fair and reasonable; settlement approved.
Decision date: 29 November 2024 | Member: Shana Radnan
Insurance Australia Limited t/as NRMA Insurance v Erkelens [2024] NSWPIC 669
Motor Accident Injuries Act 2017; settlement approval; claimant 61-years old when a truck collided with his bike at high speed; liability wholly admitted; claimant injured his left leg and right arm and wrist and developed psychological symptoms; self-employed farmer and governance consultant; claimant died from unrelated injuries; wife represented his estate and reached agreement to settle the claim for damages; Held – settlement approved in the sum of $330,000 for non-economic loss and past economic loss.
Decision date: 4 December 2024 | Member: Elyse White
Workers Compensation non-Presidential Member Decisions
Sidrak v Frontline Fitouts Pty Ltd [2024] NSWPIC 653
Applicant injured in car accident after suffering an idiopathic loss of consciousness; whether injury suffered arising out of or in course of employment; whether employment substantial contributing factor to injury; applicant returning from work-related meeting at time of accident; extent of incapacity; calculation of PIAWE; applicant paid benefits under the motor accidents legislation; whether section 46 applies to reduce the weekly benefits payable to the applicant; Held – applicant suffered injury arising out of the course of employment; injury was car accident, not idiopathic loss of consciousness; applicant had no current work capacity since date of injury and continues to have no current work capacity; section 46 not exercisable in present circumstances; award made for weekly payments from date of accident and continuing.
Decision date: 27 November 2024 | Member: Parnel McAdam
Stewart v Catholic Schools Maitland and Newcastle Dicoese [2024] NSWPIC 654
Workers Compensation Act 1987; section 37; entitlements during second entitlement period; Held – applicant entitled to weekly compensation and medical expenses.
Decision date: 28 November 2024 | Member: Mitchell Strachan
Bramble v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 655
Claim for compensation for psychological injury; claim for weekly payments and medical expenses; no dispute as to the circumstances that led to the claimed injury; respondent’s independent psychiatrist assessed applicant as suffering PTSD and major depressive disorder as a result of the incident; opinion retracted after results of testing indicated applicant was malingering; weight to be given to the results of testing; applicant’s treating psychologist and treating and independent psychiatrists maintained their opinion; finding it was not open to the applicant to challenge the validity of the testing in the absence of expert evidence; finding that greater weight should be given to the applicant’s evidence; Held – finding that the applicant suffered a psychological injury arising out of or in the course of her employment; respondent to pay weekly payments at the rate of the agreed PIAWE as indexed and reasonably necessary treatment expenses.
Decision date: 28 November 2024 | Member: Jill Toohey
Gutierrez v State of New South Wales South Western Sydney Local Health District [2024] NSWPIC 656
Consequential condition; Kooragang Cement Ltd v Bates applied; relevant date of injury for lump sum claim where further aggravation injury; Haddad v The GEO Group Australia Pty Ltd; Ozcan v Macarthur Disability Services Ltd; Held – applicant sustained aggravation injury to right shoulder on 5 December 2019 together with consequential condition to left shoulder; impairment from later aggravation injury to be assessed with impairment from 2 February 2010 injury.
Decision date: 28 November 2024 | Member: Mitchell Strachan
Workers Compensation Act 1987; claim by uninsured employer pursuant to section 145(3) alleging that it is not liable in respect of the compensation payments made by the first respondent to the second respondent; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with section 4; consideration of the degree of the second respondent’s current work capacity due to the injury since 26 January 2023 and what medical treatment she has reasonably needed as a result of the injury since 26 January 2023; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K, Wollongong Nursing Home Pty Ltd v Dewar, AV v AW, ACW v ACX, Tubemakers of Australia Ltd v Fernandez, Diab v NRMA Limited,and Rose v Health Commission (NSW) considered; Held – the second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with section 4; the second respondent had no current work capacity between 23 May 2023 and 11 March 2024, and during that period, she was entitled to weekly benefits compensation in accordance with sections 36(1) and 37(1); the second respondent had current work capacity between 11 March 2024 and 8 April 2024, and during that period, she was entitled to weekly benefits compensation in accordance with section 37(2); as a result of her psychological injury, the second respondent required reasonably necessary medical treatment in accordance with section 60 of the Act, her expenses in this regard amounted to $13,859;52; the first respondent has made a payment of $63,182;08 to or in respect of the second respondent in relation to her psychological injury, and has issued a valid notice dated 8 April 2024 to the applicant, in accordance with section 145(1), requiring the applicant to reimburse that amount to it; the amount of $63,182;08 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to her psychological injury; the payment made was both necessary and appropriate; Held – pursuant to section 145(3), the applicant is liable in respect of the payment made of $63,182;08; the order sought by the applicant is refused.
Decision date: 29 November 2024 | Member: Gaius Whiffin
Gallelli v HammondCare [2024] NSWPIC 660
Claim for surgical treatment by patient carer for injury to the right shoulder whilst preventing patient from falling; whether evidence by respondent witnesses established that claim fraudulent; whether file report by respondent expert established that proposed surgery not reasonably necessary; Held – the evidence from the respondent witnesses offended rule 73 of the Personal Injury Commission Rules; it was neither logical nor probative and was unacceptable as it was based on speculation and unsubstantiated assumptions; it was in conclusive form and failed to relate sufficient detail to be acceptable; applicant’s claim established contemporaneous independent documentary support from GP notes the day following the event; Mason v Demasi and Qannadian v Bartter Enterprises Pty Limited considered and applied; claim also supported by patient who was saved from his fall by the actions of the applicant; Fox v Percy considered and applied; observations as to regrettable action by respondent in denying liability; respondent expert opinion rejected; applicant not interviewed or examined; history inconsistent and incorrect; findings as to investigation erroneous; Diab v NRMA Ltd considered and applied; award applicant.
Decision date: 29 November 2024 | Member: John Wynyard
Wade v State of New South Wales (NSW Police Force) [2024] NSWPIC 661
Claim for lump sum compensation; applicant alleged he suffered injury to back and hips due to nature and conditions of employment; worked as a general duties police officer and then in role as defensive tactics trainer; regularly thrown and subject to police handling techniques; lack of contemporaneous complaints to medical practitioners; competing medical opinions; Held – applicant suffered an injury to lower back and hips; matter referred for assessment of permanent impairment.
Decision date: 2 December 2024 | Member: Parnel McAdam
Al Anzi v Skyview Formwork Pty Ltd [2024] NSWPIC 662
Claim for weekly benefits; applicant alleges he was a worker; contract was entirely oral; consideration of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and Secretary, Attorney-General’s Department v O’Dwyer; Held – on a consideration of contractual obligations, the subsequent conduct of the parties and applying the multifactorial test, finding made that the applicant was not a worker or deemed worker.
Decision date: 2 December 2024 | Member: Fiona Seaton
Bruzzese v Burwood City Council [2024] NSWPIC 663
Workers Compensation Act 1987; weekly compensation; ongoing claim pursuant to sections 36, 37 and 38; whether the applicant has ongoing total incapacity for employment which is likely to continue indefinitely; permanent impairment compensation for psychological injury and payment of medical expenses; the applicant suffered a psychological injury in the course of her employment with the respondent; liability for the injury was originally disputed pursuant to section 11A, however, the liability dispute was withdrawn and the claim for permanent impairment compensation referred for medical assessment, followed by an appeal to a Medical Appeal Panel; ultimately, the applicant was assessed with a 19% whole person impairment; the matter in dispute in this decision is the applicant’s incapacity for employment; she claims total incapacity to date and continuing per section 36, 37 and 38; the respondent alleges the applicant has partial incapacity and is not entitled to claim compensation beyond the 130-week entitlement period in section 37; the applicant’s PIAWE is agreed; conduct of proceedings and manner of defending claim; discussion on manner in which proceedings were conducted and operation of the model litigant provisions; Fairfield City Council v Comlekci discussed; Held – the applicant suffered and continues to suffer total incapacity for employment as a result of her injury, which incapacity is likely to continue indefinitely; the respondent is to pay the applicant weekly compensation as claimed; the respondent is to pay the applicant’s reasonably necessary medical expenses; the respondent is to pay the applicant permanent impairment compensation in accordance with the findings of the Medical Appeal Panel.
Decision date: 2 December 2024 | Member: Cameron Burge
Sabine v HammondCare [2024] NSWPIC 664
Claim for cost of total right knee replacement; injury admitted; requirement for surgery admitted; issue for determination is whether the requirement for surgery came about as a result of the injury; the applicant suffered an accepted injury to her right knee by way of aggravation to pre-existing pathology when she was lifting a patient who fell towards her, in turn causing the applicant to fall and (relevantly) injure her right knee; the applicant had, from time to time, made complaints in relation to her right knee before the injury at issue, including to her GP the day before the injury; however, she stated the injury caused her consistent ongoing pain which has worsened over time, necessitating the surgery; the respondent argued the applicant had not discharged her onus of proving the causal connection between the injury and the proposed surgery, and also effects of the injury had passed, as a result of which the surgery was necessary because of her underlying condition; Held – the injury made a material contribution to the need for the surgery, meaning the operation is reasonably necessary as a result of the injury; Murphy v Allity Management Services Pty Ltd followed, Kooragang Cement Pty Ltd v Bates referred to; the evidentiary onus of proving the effects of an accepted injury have passed is on the party so alleging; Commonwealth v Muratore referred to; the respondent did not lead any medical evidence to support the proposition the effects of the injury had passed, and as such failed to discharge its onus of proof on that point; on balance, the evidence discloses the proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 3 December 2024 | Member: Cameron Burge
Schellack v Jarvie Engineering Pty Ltd [2024] NSWPIC 665
Workers Compensation Act 1987; disputed right shoulder disease injury and entitlement to weekly benefits and medical and related expenses; Held – the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the right shoulder within the meaning of section 4(b)(ii) arising out of his employment with the respondent deemed to have occurred on 9 August 2023; the applicant had no current work capacity between 9 August 2023 and 12 February 2024 as a result of the injury; the respondent is to pay the applicant weekly benefits compensation and reasonably necessary medical and related treatment as a result of the injury.
Decision date: 3 December 2024 | Member: Fiona Seaton
Granger v State of New South Wales (NSW Police Force) [2024] NSWPIC 666
Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance management and discipline; worker alleged bullying and harassment, ill-defined job description, ostracization and marginalisation during course of employment; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair; Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie and Attorney General’s Department v K discussed and applied; Held –worker’s injury caused by all events at work, not wholly or predominantly performance management for misconduct; referral to a Medical Assessor.
Decision date: 3 December 2024 | Member: Diana Benk
Wong v Source Governance Pty Ltd [2024] NSWPIC 667
Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses for psychological injury; whether employment is the main contributing factor to the contracting of a disease injury; consideration of AV v AW;extent of worker’s incapacity for a closed period of about six months; Held – worker sustained a psychological injury in the course of her employment by way of a disease injury pursuant to section 4 (b)(i); the worker was partially incapacitated for work for the period claimed by her; award of weekly payments of compensation for a closed period of about six months and the payment by the respondent of reasonably necessary medical expenses.
Decision date: 3 December 2024 | Member: John Isaksen
Boyd v Costco Wholesale Australia Pty Ltd [2024] NSWPIC 668
Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation for psychological injury; whether the Personal Injury Commission (Commission) had jurisdiction to hear the claim; regard to whether the time within which the claim had to be determined had expired before the applicant commenced proceedings in the Commission; section 281(2); obligation under section 264(1) on an employer who receives a claim or any other documentation in respect of a claim to forward it to the employer’s insurer; whether the claim had been properly made, where the Medical Assessor (MA) who assessed the applicant for permanent impairment as a result of injury had not used the wording in Part 8.1.1 of the Workers Compensation Guidelines (Guidelines) to certify that the applicant had reached maximum medical improvement; whether the applicant had sustained psychological injury arising out of or in the course of her employment with the respondent; the date of such injury, having regard to what the Court of Appeal decided in Haddad v The Geo Group Australia Pty Ltd (Haddad); detailed examination of the legislative provisions of the 1998 Act in respect of the making of a claim for permanent impairment compensation, Part 8.1.1 of the Guidelines, the report of the independent medical examiner whose report was submitted in support of the applicant’s claim for lump sum compensation, and the diagnosis of that examiner in respect of injury in comparison with the diagnosis of the independent medical examiner who reported on behalf of the employer; Held – the Commission had jurisdiction to hear the applicant’s claim; the applicant’s claim for lump sum compensation was properly made; the applicant sustained psychological injury arising out of or in the course of her employment with the respondent; the date of such injury was the date of incapacity in accordance with the finding of the Court of Appeal in Haddad; the matter remitted to the President for referral to a MA for assessment of whole person impairment as a result of psychological injury on the date of incapacity.
Decision date: 3 December 2024 | Member: Brett Batchelor
Motor Accidents Medical Review Panel Decisions
Antaki-Smith v Youi Pty Limited [2024] NSWPICMP 796
Review of the certificate and reasons of Medical Assessor (MA) Kuru dated 12 April 2024 of permanent impairment assessment of 8%; claimant involved in an accident on 4 August 2021; motorbike versus car; injury to cervical spine, right shoulder, right wrist and lumbar spine; claimant had a lumbosacral disc protrusion and meralgia paraesthetica of his right thigh; claimant examined on his behalf by Dr Bodell who found a total 19% whole person impairment (WPI); claimant examined on behalf of the insurer by Dr Machart who assessed WPI of 1% for scarring; Held – certificate and reasons of MA Kuru revoked with Panel assessing the claimant at 19% WPI for injuries to his cervical spine, lumbar spine, right shoulder, right wrist and scarring.
Decision date: 27 November 2024 | Panel Members: Member Alexander Bolton, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Spine, Upper Limb, and Skin - Scarring
Melnichuk v QBE Insurance (Australia) Limited [2024] NSWPICMP 798
Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Cameron’s assessment of 4% whole person impairment (WPI) for spine, shoulders, leg and head injuries; claimant had not referred lumbar spine for assessment but MA had assessed it as 0%; Panel determined lumbar spine would be re-examined and assessed; issue of causation due to pre-existing conditions; both MAs re-examined claimant; Panel satisfied claimant injured her cervical, thoracic and lumbar spines, head injury causing possible teeth injuries but not injury to the trigeminal nerve and other injuries now resolved; injury to cervical, thoracic and lumbar spine assessed as 0%; head and face had no assessable impairment; shoulders not directly injured but in accordance with Nguyen v Motor Accidents Authority of NSW and Anor, injury to neck causing restriction of movement in shoulders, range of motion method of assessment could not be used due to inconsistency so impairment assessed by use of an analogous condition; Held – degree of WPI 4%; certificate revoked due to different finding of causation of lumbar spine (although same WPI of 0%).
Decision date: 27 November 2024 | Panel Members: Member Belinda Cassidy, Dr Sophia Lahz, and Dr Christopher Oates | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Huang v AAI Limited t/as AAMI [2024] NSWPICMP 801
Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of Medical Assessor (MA) Fukui’s assessment of 0% whole person impairment (WPI); Panel determined to hear and determine this Review with the Review in the related proceedings; Panel adopted evidence review, the re-examination finding, and the findings as to causation and diagnosis in the related proceedings; while the claimant did not currently have an entitlement to any damages, the Panel proceeded to assess WPI in the event that situation changed; consideration of the psychiatric impairment rating scale set out in the Motor Accident Guidelines and the six categories of function; Held – claimant’s WPI assessed at 5%; certificate of MA Fukui revoked; no issue of principle.
Decision date: 27 November 2024 | Panel Members: Member Belinda Cassidy, Dr Doron Samuell, and Dr John Baker | Injury module: Mental and Behavioural
AAI Limited t/as AAMI v Huang [2024] NSWPICMP 802
Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor (MA) Canaris’ decision about treatment (allowed) and threshold injury (non-threshold persistent depressive disorder); Panel determined that it would hear and determine this Review with the Review in the related proceedings; re-examination with both MA’s conducted; current diagnosis was of adjustment disorder; other potential diagnoses identified and discussed; Panel satisfied adjustment disorder was caused by the accident; Held – adjustment disorder is a threshold injury; clause 4(2) of the Motor Accident Injuries Regulation applied; Panel determined claimant had not had, at any time since the accident, a non-threshold injury; David v Allianz Australia Insurance Limited and Lynch v AAI Limited t/as AAMI applied; treatment allowed as related to the accident and reasonable and necessary in the circumstances; MA Canaris’ certificate about treatment confirmed, certificate about threshold injury revoked.
Decision date: 27 November 2024 | Panel Members: Member Belinda Cassidy, Dr Doron Samuell, and Dr John Baker | Injury module: Mental and Behavioural
Rotella v AAI Limited t/as AAMI [2024] NSWPICMP 805
Motor Accidents Compensation Act 1999; medical dispute as to whole person impairment (WPI); the claimant was the driver of a motor vehicle stopped at an intersection on Belmore Road at Riverwood; his car was struck in the rear by the insured vehicle; the claimant was able to drive his car home; claimant attended Bankstown Hospital the following day complaining of pain in the back of his head and neck, shoulders and lower back; claimant says that he has experienced psychological symptoms from the time of the accident; insurer admitted liability for the claim; Medical Assessor Rikard-Bell certified that all injuries referred for assessment were not caused by the subject accident; Held – Review Panel of contrary opinion; Review Panel assesses 3% WPI for aggravation of pre-existing major depressive disorder with psychotic symptoms; apportionment and adjustment for treatment effects; certificate revoked
Decision date: 28 November 2024 | Panel Members: Member Gary Victor Patterson, Dr Michael Hong, Dr Christopher Canaris | Injury module: Mental and Behavioural
Kidd v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 807
Motor Accident Injuries Act 2017; medical dispute as to threshold injury; the claimant was driving a vehicle on President Avenue at Miranda when the insured vehicle either turned in front of the claimant’s vehicle, or crossed over to his side of the road, causing a frontal impact; claimant alleges that he suffered injuries to his head, cervical spine, both shoulders, both arms, left wrist and lumbar spine, some or all of which are non-threshold injuries; insurer denied liability to pay statutory benefits beyond twenty-six weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act; Medical Assessor Cameron certified that all of the claimant’s injuries, including a laceration to the head, are threshold injuries; Review Panel also finds that all of the claimant’s injuries are soft tissue injuries; Review Panel finds it is bound by the Supreme Court decision in Abawi v Allianz Australia Insurance Limited to find that the laceration to the claimant’s scalp is a non-threshold injury; Held – certificate revoked.
Decision date: 29 November 2024 | Panel Members: Member Gary Victor Patterson, Dr Alan Home, and Dr Christopher Oates | Injury module: Spine, Upper Limb, and Brain Injury
Moore v Allianz Australia Insurance Limited [2024] NSWPICMP 808
Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Kuru; the claimant suffered injury in an accident on 5 October 2020; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine, left shoulder and left hip; MA Karu assessed 0% WPI for cervical spine; 5% WPI for lumbar spine, 0% WPI for left shoulder and 0% WPI for the left hip; Held –notwithstanding lack of contemporaneous complaint causation of injury to left shoulder and the lumbar spine established; Briggs v IAG Limited trading as NRMA Insurance;injury to left shoulder secondary to injury to cervical spine as per Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; soft tissue injury to cervical spine; soft tissue injury to lumbar spine; labral tear of the left hip; cervical spine assessed as 0% WPI; using range of motion method left shoulder assessed as 1% WPI; lumbar spine assessed as 5% WPI; left hip assessed as 2% WPI; total WPI 8% caused by the accident; certificate MA Kuru revoked.
Decision date: 29 November 2024 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Alan Home | Injury module: Spine, Upper and Lower Limb
Winn v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 812
Motor Accident Injuries Act 2017; assessment by Medical Assessor (MA) Woo of whole person impairment (WPI) at 10%; claimant’s application for review under section 7.26; multiple injuries alleged including lumbar, thoracic and cervical spine, right shoulder, lower limbs, chest (fractured sternum) and rib (fracture to 4th); claimant re-examined; issue arose about lumbar versus thoracic spine transverse fracture and error found in hospital’s discharge summary; claimant sustained a single transverse fracture of L4; Panel found all injuries caused and clinical findings showed claimant had recovered from most injuries and had no impairment; only impairment found was 5% for lumbar fracture; Held – certificate of MA Woo revoked as he included actual percentage in the certificate; no issue of principle.
Decision date: 2 December 2024 | Panel Members: Member Belinda Cassidy, Dr David Gorman, and Dr Tania Rogers | Injury module: Spine, Upper and Lower Limb
Allianz Australia Insurance Limited v Olumee [2024] NSWPICMP 813
Motor Accident Injuries Act 2017; Medical Panel Review of medical assessment regarding assessment of whole person impairment; claimant a pedestrian knocked to the ground; issues of causation, including whether a left ankle injury related to the motor accident due to overuse injury arising from acute right lower extremity injury; Held – Panel found the claimant suffered an overuse injury to the left ankle, but the osteochondral lesion is pre-existing and not related to the accident; left ankle injury resolved as well as injuries to chest wall and left shoulder; lumbar spine injury not caused by the motor accident; whole person impairment assessed at 9% (right lower extremity 5% and scarring 4%).
Decision date: 2 December 2024 | Panel Members: Member Elizabeth Medland, Dr Shane Maloney, and Dr Margaret Gibson | Injury module: Spine, Skin, Upper and Lower Limb
Dahal v Allianz Australia Insurance Limited [2024] NSWPICMP 814
Motor Accident Injuries Act 2017;claimant suffered injury in a motor vehicle accident on 17 October 2020; Medical Assessor (MA) Cameron determined the claimant’s disputed treatment was related to the injuries caused by the accident but was not reasonable or necessary in the circumstances; dispute about treatment; Bell v Allianz Insurance Australia Limited, AAI Limited t/as AAMI v Phillips, Warner v Insurance Australia Ltd t/as NRMA Insurance (No. 1), and Rahman v Insurance Australia Ltd t/as NRMA Insurance referred to; the Review Panel conducted its own examination and confirmed that the repair cost of a fallen retaining wall, monthly cleaning costs, and further lawnmowing assistance are reasonable and necessary in the circumstances; Held – the Certificate of MA Cameron was revoked.
Decision date: 2 December 2024 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Shane Moloney | Injury module: Treatment Type: Domestic Assistance
Ince v AAI Limited t/as GIO [2024] NSWPICMP 816
Motor Accident Injuries Act 2017; in May 2023 Medical Assessor (MA) Assem assessed 8% whole person impairment (WPI) (neck and right ankle) but did not assess right shoulder because it was not referred to in the application form; claimant’s application for further assessment allowed; MA Assem assessed 2% WPI for right shoulder; claimant’s application for review of that assessment; no issue of causation raised by insurer, methodology of assessment issues concerning inconsistency and contralateral uninjured joint; Panel member re-examined claimant; diagnosis of shoulder impingement with bursitis; issue of variation between other examinations considered; no inconsistency found on examination; Panel satisfied range of motion method in Guidelines appropriate; impairment 11% UEI from which was deducted the 1% from the contralateral uninjured left shoulder; total UEI 10%; WPI of 6%; when combined with previous assessment, WPI greater than 10%; Held – certificate of MA Assem revoked.
Decision date: 3 December 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Les Barnsley | Injury module: Upper Limb
AAI Limited t/as AAMI v Mooney [2024] NSWPICMP 817
Motor Accident Injuries Act 2017; medical dispute about threshold injury; Medical Assessor (MA Home) found claimant’s cervical spine injury not a threshold injury; insurer’s application for review under section 7.26; issue of causation; insurer raised minor nature of accident; Panel considered absence of safety features in vintage car could have exposed claimant to injury and rear end collision did cause injury; radiculopathy now or at any time; David v Allianz, Lynch v Allianz and Allianz v Susak followed and applied; Panel satisfied radiculopathy at any time indicates non-threshold injury caused by accident; credibility and reliability of claimant and his treating doctor raised by insurer; Insurance Australia Limited v Milton applied; no findings of credibility made; Panel satisfied on basis of clinical findings of treating neurosurgeon and MA Home that claimant had a non-threshold C5/6 nerve root injury manifesting in three signs of radiculopathy at the times of their examinations; Panel examined the claimant and found two signs of radiculopathy and were satisfied the claimant had a non-threshold injury still manifesting in radiculopathy; insurer raised issues with subjectivity of testing by MA Home and requested Panel conduct more objective testing; extensive consideration of subjective verses objective testing in the AMA 4 Guides and Motor Accident Guidelines, nature of tests proposed (and dismissed) by the Panel; Held – claimant has a non-threshold injury due to presence of radiculopathy and due to disc protrusion or prolapse; certificate of MA Home affirmed.
Decision date: 3 December 2024 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Clive Kenna | Injury module: Spine and Upper Limb
Bennett v AAI Limited t/as AAMI [2024] NSWPICMP 818
Motor Accident Injuries Act 2017;claimant injured in a motor vehicle accident on 7 August 2017; on 11 June 2023 Medical Assessor (MA) Gorman determined the claimant’s permanent impairment at 6% only considering the right wrist in his report; the Review Panel conducted its own examination and considered the claimant’s injuries to both wrists in the accident; the Panel confirmed the injuries caused by the accident gave rise to a 14% whole person impairment; the Certificate of MA Gorman was revoked.
Decision date: 3 December 2024 | Panel Members: Member Terence Stern OAM, Dr Shane Moloney, and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb
CIC Allianz Insurance Limited v Abraham [2024] NSWPICMP 819
Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; Medical Assessor (MA) certified major depressive disorder with anxious distress, panic disorder, and agoraphobia were caused by the accident and gave rise to a permanent impairment (17%) that was greater than 10%; whether there were pre-and post- accident psychological condition and associated impairment; whether any accident caused injury and impairment; Held – the claimant had a pre-existing unspecified mood disorder and substance use disorder and pre-existing impairment; pre-existing conditions aggravated by the accident; accident caused aggravation gave rise to an impairment greater than 10%; because Panel found different diagnoses and degree of accident caused impairment MA’s certificate revoked and new certificate issued.
Decision date: 3 December 2024 | Panel Members: Senior Member Brett Williams, Dr Christopher Canaris, and Dr Samson Roberts | Injury module: Mental and Behavioural
AAI Limited t/as AAMI v Balloul [2024] NSWPICMP 823
Motor Accident Injuries Act 2017; claimant’s application for medical assessment and insurer’s application for review under section 7.26; Medical Assessor (MA) Canaris determined whole person impairment (WPI) at 13%; issue of causation as insurer submitted no complaints for four years after the accident, and challenge to three of the six areas of functioning; Panel advised its review of records indicated first complaints made two years after the accident; re-examination occurred by Microsoft Teams; Panel diagnosed adjustment disorder with depressed mood and found it was caused by the accident; WPI assessed at 6%; Held – MA’s certificate revoked; no issue of principle.
Decision date: 4 December 2024 | Panel Members: Member Belinda Cassidy, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural
Workers Compensation Medical Appeal Panel Decisions
Harbach v Noni B Holdings Pty Ltd [2024] NSWPICMP 803
Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made a deduction of one half for pre-existing conditions in the right hip and right knee; MA failed to provide adequate reasons for the deduction in circumstances where the worker was asymptomatic before the work injury; Held – Medical Assessment Certificate revoked.
Decision date: 27 November 2024 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni, and Dr John Brian Stephenson | Body system: Right Lower Extremity
Aldi Stores (A Limited Partnership) v Fortune [2024] NSWPICMP 804
Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor (MA) erred in his allowance of 2% whole person impairment for effect on activities of daily living (ADL) in relation to his assessment of the lumbar spine; however he has not considered whether the impact on ADL’s arises from the impairment of the back or the right foot/leg injury, and failed to make any deduction for pre-existing factors under section 323 in relation to the lumbar spine; a preliminary issue arose regarding a CT Scan that had not been seen by all parties; a Direction was issued and the matter was resolved; re-examination took place; Held – no error by the MA as claimed; Medical Assessment Certificate Confirmed.
Decision date: 27 November 2024 | Panel Members: Member Deborah Moore, Dr John Brian Stephenson, and Dr Christopher Oates | Body system: Right Lower Extremity, Soine, TEMSKI (scarring) and Complex Regional Pain Syndrome
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under five of the psychiatric impairment rating scale categories; Held – Appeal Panel found error in one category; Medical Assessment Certificate revoked.
Decision date: 28 November 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Noonan v RJ & RJ Turner t/as Outback Building Specialists [2024] NSWPICMP 809
Appeal against Medical Assessor’s (MA) assessment of permanent impairment on the basis that the MA erred in failing to have regard to the appellant’s left hip and left ankle surgeries, as well as updated medical evidence provided by him regarding his neck, back and both knees; error found in that the MA did not consider relevant and significant material; further medical examination conducted on behalf of the Appeal Panel by Dr James Bodel, and findings of Dr James Bodel adopted by the Appeal Panel and different to those of the MA; Campbelltown City Council v Vegan, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Prasad v Workers Compensation Commission, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, Wentworth Community Housing Limited v Brennan considered; Held – Medical Assessment Certificate revoked; new certificate issued.
Decision date: 29 November 2024 | Panel Members: Member Gaius Whiffin, Dr James Bodel, and Dr Andrew Porteous | Body system: Spine, Left and Right Lower Extremity
State of New South Wales (NSW Police Force) v Bolton [2024] NSWPICMP 810
Applicant sustained primary psychological injury; Medical Assessor assessed applicant as having a whole person impairment (WPI) of 19%; deducted one-tenth for pre-existing injury, condition or abnormality; added 2% WPI for the effects of treatment resulting in 19% WPI; rounded up to a total of 15% WPI; Panel held that the Medical Assessment Certificate (MAC) contained a demonstrable error in relation to the addition of 2% WPI for the effects of treatment as the modifier in chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment; Held – Medical Assessment Certificate revoked.
Decision date: 29 November 2024 | Panel Members: Member Carolyn Rimmer, Dr Nicholas Glozier, and Michael Hong | Body system: Psychological/Psychiatric
Ingram v State of New South Wales (Fire & Rescue NSW) [2024] NSWPICMP 811
Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria in Medical Assessor’s assessment of class 2 in the psychiatric impairment rating scale of social functioning; where matter referred for further assessment or reconsideration after worker previously found not to have reached maximum medical improvement; Held – Medical Assessment Certificate confirmed.
Decision date: 29 November 2024 | Panel Members: Member Rachel Homan, Dr John Baker, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Lack Group Traffic Pty Ltd v Smith [2024] NSWPICMP 815
Assessment of injury to cervical spine, thoracic spine and right lower extremity; appellant submitted error in assessment of 2% for interference with activities of daily living (ADL) and in assessment of DRE category II for the thoracic spine and cervical spine; Panel found no error in assessment of ALDs; Held – Medical Assessor (MA) erred in failing to provide proper findings as to range of motion in the spine; worker re-examined; assessment by the Panel the same as by the MA so Medical Assessment Certificate confirmed.
Decision date: 2 December 2024 | Panel Members: Member Carolyn Rimmer, Dr Tommasino Mastroianni, and Dr John Brian Stephenson | Body system: Spine and Right Lower Extremity
Simpson v R&L Refrigeration & Air-Conditioning Pty Ltd [2024] NSWPICMP 820
Whether Medical Assessor (MA) erred by failing to set out sufficient findings to explain the assessment he made of the appellant’s permanent impairment; Appeal Panel held the MA’s findings from his examination were insufficient to support his assessment; Appeal Panel held it could not rely on a presumption of regularity in this case; Held – Appeal Panel found the Medical Assessment Certificate (MAC) contained a demonstrable error; appellant re-examined; MAC revoked.
Decision date: 3 December 2024 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr Ross Mellick | Body system: Spine and Right Upper Extremity
Giles v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPICMP 821
The appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of two of the categories of the psychiatric impairment rating scale (PIRS), namely travel and employability, and failed to provide any or any adequate reasons with respect to her assessment of employability; Panel found no error as regards to travel; error in employability and inadequate reasons; Held – Medical Assessment Certificate revoked.
Decision date: 3 December 2024 | Panel Members: Member Deborah Moore, Dr Ash Takyar, and Dr Michael Hong | Body system: Psychological/Psychiatric
Southern Stainless Steel Pty Ltd v Amos [2024] NSWPICMP 822
Workplace Injury Management and Workers Compensation Act 1998; worker referred to Lead Assessor for assessment of a sleep disorder, non-lead assessor for assessment of lumbar spine and a second non-lead assessor for assessment of the skin (psoriasis); worker conceded that Lead Assessor incorrectly applied the combined values chart and assessment of impairment for sleep disorder is 12% whole person impairment (WPI) not 13% WPI; appellant submitted that Lead Assessor failed to consider the evidence before him and make a deduction pursuant to section 323 for a pre-existing condition; Panel held that failure to consider reports of respiratory physicians, including Home Polysomnography Sleep Study, and clinical notes in the two years prior to the work injury when considering whether to make a deduction under section 323 was a demonstrable error; Panel determined that a deduction of one half should be made for a pre-existing condition; worker conceded that there was a typographical error and the correct DRE category for the lumbar spine was DRE II; Held – Medical Assessment Certificate revoked.
Decision date: 3 December 2024 | Panel Members: Carolyn Rimmer, Dr Drew Dixon, and Dr Gregory Kaufman | Body system: Spine, Respiratory and Skin
Motor Accidents Merit Review Panel Decision
Insurance Australia Limited t/as NRMA Insurance v Iskandar [2024] NSWPICMRP 5
Motor Accident Injuries Act 2017; review of decision of Merit Reviewer (MR) Williams; MR Williams determined gross earnings of a self-employed person for the purposes of schedule 1 clause 4(1) was the gross income of the business before the deduction of any expenses; dispute as to what is meant by term “gross earnings” for the purposes of determining the pre-accident weekly earnings (PAWE) under schedule 1 clause 4; meaning of “proceeds of any business carried on by the person either alone or in partnership with another person” as per schedule 1 clause 3(2)(b); Held – where the objects of the Act give rise to range of conflicting or competing purposes as per Griffiths AJA in Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi appropriate to construe schedule 1 clause 4(1) and schedule 1 clause 3(2)(b) by reference to language of the statute construed as a whole as per Project Blue Sky v ABA; clause 3(2)b) of schedule 1 should be read in conjunction with clause 3(1) which defines loss of earnings as “a loss incurred or likely to be incurred in a person’s income from person exertion”; the income from personal exertion refers to the claimant’s share of the proceeds of the business, not the entire proceeds of the business without any deductions; to interpret weekly gross earnings received by the earner by reference to proceeds of business but without deductions but before tax would lead to inconsistent outcomes when assessing entitlement to statutory benefits under sections 3.6, 3.7 and 3.8 and would not give effect to harmonious goals; reading Act as a whole it was not the intention of legislature to provide an entitlement to statutory benefits which have the potential to significantly exceed the amount recoverable by way of economic loss at common law; loss of earnings in schedule 1 clause 3(b) relates to the proceeds of any business resulting from the earners own personal exertion and gross earnings as it appears in schedule 1 clause 4 relates to the gross earnings received by the earner after the deduction of business expenses but before the deduction of tax; decision of MR Williams revoked; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, AHS v Allianz Australia Ltd, AGZ v NRMA Insurance Pty Ltd, Carr v The State of Western Australia, Metropolitan Gas Co v Federated Gas Employees’ Industrial Union, St George Bank Ltd v Federal Commission of Taxation; Medlin v State Government Insurance Commission; Husher v Husher cited.
Decision date: 26 November 2024 | Merit Review Panel: Susan McTegg, Elizabeth Medland and Anthony Scarcella
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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