Legal Bulletin No. 192
This bulletin was issued on 20 December 2024
Issued 20 December 2024
Welcome to the one hundred and ninety second 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
Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80
Workers compensation; no error in failing to deal with a submission that was not made; Brambles Industries Limited v Bell applied; sections 44C, 44G and 44H of the Workers Compensation Act 1987 (now repealed); calculation of the worker’s pre-injury average weekly earnings, ordinary earnings and ordinary hours of work in circumstances where a fair work instrument applies to the worker; principles applicable to disturbing a factual decision of a primary decision-maker; Minister for Immigration and Citizenship v SZMDS; Shellharbour City Council v Rigby; Whiteley Muir & Zwanenberg Ltd v Kerr; Micallef v ICI Australia Operations Pty Ltd applied; Held – the Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed; Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed; Member’s determination of the appellant’s pre-injury average weekly earnings is revoked.
Decision date: 10 December 2024 | Before: Deputy President Elizabeth Wood
Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPICPD 81
Workers compensation; fresh evidence; section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; CHEP Australia Ltd v Strickland considered and applied; Jurisdiction of Personal Injury Commission dependant upon existence of a dispute; Skates v Hills Industries Ltd; Held – appellant’s application to adduce fresh evidence on appeal pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is rejected; Certificate of Determination dated 20 February 2024 is confirmed.
Decision date: 11 December 2024 | Before: President Judge Phillips
State of New South Wales (NSW Police Force) v Adams [2024] NSWPICPD 82
Workers compensation; Pre-Filing Statement struck out by order of the President – sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987; Luke v McCarthy considered and applied; Held – respondent claimant’s Pre-Filing Statement filed 8 January 2020 is struck out pursuant to section 151DA(3) of the Workers Compensation Act 1987; each party is to bear their own costs of these proceeding.
Decision date: 11 December 2024 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Nader v AAI Limited t/as AAMI [2024] NSWPIC 659
Motor Accident Injuries Act 2017; application by insurer for exemption from assessment under section 7.34(1)(b); opposed by claimant; claimant a passenger in vehicle; insurer alleges claimant knew or ought to have known that the driver “under the influence of drugs”, and knew or ought to have known driver was speeding/driving recklessly and took no steps to stop him; contributory negligence alleged; insurer alleges extensive pre-accident drug, mental health and forensic history; history of incarceration; significant economic loss claim; Held – claim not typical of matters that proceed to assessment in the Commission; assessment by the Commission likely to take a number of days, and may take as long as a court hearing; the evidence of the claimant and driver should be tested under oath in a forum in which they will have all the rights and protections afforded by the Evidence Act 1995; the formality of a court hearing is appropriate; claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 28 October 2024 | Senior Member: Brett Williams
QBE Insurance (Australia) Limited v Powell [2024] NSWPIC 673
Motor Accident Injuries Act 2017; claimant suffered injury on 27 September 2019; the medical dispute related to whether the IVF treatment was caused by the motor accident; insurer paid treatment expenses on a without prejudice basis following receipt of medical assessment certificate which found in favour of the claimant; insurer advised that it wanted the review to proceed so answers would “inform the consideration of whether the need to have IVF treatment sounds in damages for non-economic loss or whether it is a payment issue in the statutory benefits claim”; future expenses were a matter for Lifetime Care and Support Authority and that party could not be bound by these findings; Blair v Curran applied; the claimant’s entitlement to non-economic loss damages is a separately defined medical assessment matter; Owen v Motor Accidents Authority; Allianz Australia Insurance Ltd v Girgis; Brown v Lewis and Pham v Shui applied; sub-sections 7.23(1) and (2)(b); any medical assessment certificate is only conclusive evidence of what is certified; insurer’s intention was to obtain evidence from the Review Panel relevant to the determination of an issue for non-economic loss; insurer acting on an improper collateral purpose; insurer asserted that it may seek recovery under section 3.43 for payments previously made; arguable that liability finding meant that insurer not liable to pay and entitled to recovery; insurer’s purpose must be the dominant purpose in maintaining the proceedings to constitute an abuse of process; Williams v Spautz applied; onus of showing dominant purpose for maintaining the proceedings as an abuse of process not established; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; previous decision infected with jurisdictional error as factual finding made contrary to parties agreed position; that decision considered afresh; application to summarily dismiss the review not established.
Decision date: 6 December 2024 | Principal Member: John Harris
Phueknual v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 683
Motor Accident Injuries Act 2017; claimant applied to refer a claim for damages for assessment on 7 August 2024; claimant claimed damages on the insurer on 4 September 2024; insurer submits that the proceedings ought be dismissed as there was no claim to be referred for assessment at the time of the purported referral; section 7.32 considered and applied; claimant stated claim was made before 7 August 2024 due to letter dated 23 January 2024 referring to approaching third anniversary of accident; Held – there was no claim for damages capable of being referred to the Commission on 4 August 2024 so proceedings cannot be maintained; letter or subsequent damages claim cannot overcome this fact; proceedings are misconceived and lacking in substance; proceedings dismissed under section 54(b) of the Personal Injury Commission Act 2020 and Personal Injury Commissionrule 77(b)(iv).
Decision date: 9 December 2024 | Member: Terence O'Riain
Creary v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 686
Motor Accident Injuries Act 2017; claimant’s application for miscellaneous claims assessment of whether, under section 3.11, he was wholly or mostly at fault; parties’ questioned at hearing; conflicting versions of accident; claimant rode motorcycle in lane 1 of 4 approaching Pacific Highway intersection with insured driver in lane 2 in late afternoon traffic; claimant merged bike after indicating into lane 2 which he says he checked was clear and alleges insured collided with rear of bike causing injury; insured alleges claimant moved bike from lane 1 without warning; insured knew claimant was merging right; police and ambulance attended; eye witnesses were not questioned; no traffic infringement issued; insurer relies on expert report; Insurance Australia Limited t/as NRMA v Richards referred to in regards to onus of proof; Allianz Australia Insurance Limited v Shuk followed on assessing whether claimant’s conduct contributed to the accident; findings that both parties were consistent in evidence in all instances; expert relied on location of insured’s vehicle damage to support insured; member not satisfied expert report is persuasive; no submissions on expert report or contributory negligence; Held – insurer did not satisfy member that claimant departed from the standard of care; relative culpability and contributory negligence not assessed; claimant was not wholly or mostly at fault.
Decision date: 10 December 2024 | Member: Terence O'Riain
Allianz Australia Insurance Limited v Veleski [2024] NSWPIC 687
Motor Accident Injuries Act 2017; approval of settlement of damages claim under section 6.23; claimant 63 years of age at time of accident when she was a driver of a vehicle that was T-boned by a motorcycle at an intersection; injuries include aggravation of pre-existing spondylosis of the cervical spine in addition to chronic post-traumatic stress disorder; medical assessments of the Commission certify a 0% whole person impairment (WPI) for the neck injury and a 9% WPI for the psychiatric injury caused by the motor accident; claimant now 68 years; claimant had been working as a pathology courier for around 10 years prior to the accident, however, had been on workers compensation weekly payments for approximately 12 months at the time of the accident as a result of an earlier motor accident; Held – proposed settlement of $76,333.56 comprising of past and future economic loss approved.
Decision date: 11 December 2024 | Member: Elizabeth Medland
Workers Compensation non-Presidential Member Decisions
Mansfield v Secretary, Department of Education [2024] NSWPIC 670
Workers Compensation Act 1987; claim for cost of and incidental to provision of modified motor vehicle; whether vehicle as sought is a curative apparatus pursuant to section 59; whether vehicle as sought is reasonably necessary as a result of the applicant’s injury; Held – while there is no issue a motor vehicle can be a curative apparatus, each case must be decided on its own facts; Bresmac Pty Ltd v Starr and Coomba v Red Funnel Fisheries Newcastle Pty Ltd discussed; the nature of the applicant’s injury together with the modifications sought to be carried out to the proposed vehicle render it a curative apparatus pursuant to section 59; the overwhelming evidence in the matter, including two occupational therapist reports commissioned by the respondent, make it clear the proposed vehicle is reasonably necessary as a result of the applicant’s injury; respondent to pay the costs of and incidental to the purchase of the modified vehicle, less the trade in value of the applicant’s current vehicle.
Decision date: 5 December 2024 | Member: Cameron Burge
Kostovska v Canterbury Hurlstone Park RSL [2024] NSWPIC 672
Workplace Injury Management and Workers Compensation Act 1998; application for reconsideration of a Certificate of Determination issued by the Workers Compensation Commission for the purposes of an appeal from a Medical Assessment Certificate pursuant to section 327(3)(a); Secretary, Department of Communities & Justice v Cannell , Dimos v Gordian Runoff Limited and Baker v Southern Metropolitan Cemeteries Trust considered; division 4a of schedule 1 of the Personal Injury Commission Act 2020 applied; Held – the Commission has power to reconsider the Certificate of Determination; applying Samuel v Sebel Furniture Ltd, the Certificate of Determination is rescinded.
Decision date: 5 December 2024 | Member: Rachel Homan
Pincham v Crew on Call Australia Pty Ltd [2024] NSWPIC 679
Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 in relation to agreed right knee injury on 1 March 2013; dispute as to whether applicant has suffered consequential conditions in his lumbar spine, right hip, right ankle/hindfoot, left knee and left ankle/hindfoot; paucity of treating medical evidence in relation to the alleged consequential conditions; Kooragang Cement Pty Ltd v Bates applied; Held – applicant has discharged his onus of proof in relation to the right hip, lumbar spine and left knee; award for the respondent in relation to the allegations of consequential conditions to both ankles/hindfeet as applicant has not discharged his onus of proof in relation to causation.
Decision date: 6 December 2024 | Principal Member: Josephine Bamber
Goss v Secretary, Department of Transport [2024] NSWPIC 680
Workers Compensation Act 1987; injury; section 4; substantial contributing factor; section 9A; claim for medical expenses to undergo shoulder arthroscopy surgery, section 60; motor vehicle collided with right side of applicant’s body; claim for frank injury to left shoulder; liability disputed by respondent; Held – applicant has not established left shoulder condition arose from work injury; award for the respondent.
Decision date: 6 December 2024 | Member: Adam Halstead
Chand v Kincare Health Services Pty Ltd [2024] NSWPIC 682
Workers Compensation Act 1987; work capacity decision; whether applicant totally incapacitated and likely to remain so indefinitely, and therefore entitled to receive weekly compensation pursuant to section 38; section 32A factors taken into consideration in determining whether applicant fit for suitable employment; necessity to take into consideration the effects of both the applicant’s physical injury and her secondary psychological condition in determining whether the combined effects of the injuries leave her with residual capacity for employment; Held – the applicant is totally incapacitated for employment and likely to remain so; the respondent is to pay the applicant weekly compensation at the agreed rate pursuant to section 38 from 14 October 2024 to date and continuing; the respondent is to pay the applicant’s past reasonably necessary medical and treatment expenses pursuant to section 60.
Decision date: 6 December 2024 | Member: Cameron Burge
Parevski v Ventia Boral Amey NSW Pty Ltd [2024] NSWPIC 684
Workers Compensation Act 1987; claim for whole person impairment arising out of consequential cervical spine condition alleged to have arisen from accepted right shoulder condition; respondent disputed that the applicant had sustained consequential condition; consideration of Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd; ipse dixit medical opinion providing insufficient reasoning of connection of cervical spine symptoms eight years post injury in the absence of contemporaneous complaints, treatment or investigations; failure to disclose previous pathology and subsequent complaints of neck pain; Held – award respondent in respect of the cervical spine claim.
Decision date: 10 December 2024 | Member: Diana Benk
Applicant worked as a records officer for Sydney Eye Hospital; role not purely clerical, involved moving large amounts of physical files; accepted cervical spine injury; dispute concerning shoulders and lumbar spine; significant support for lumbar spine injury; no treating evidence for shoulders; Held – applicant suffered injury to her lumbar spine; award for respondent for both shoulders; matter remitted for referral of assessment of permanent impairment.
Decision date: 10 December 2024 | Member: Parnel McAdam
Davis v Sonic Healthcare Group [2024] NSWPIC 688
Claim for weekly payments and medical expenses for injury to the right knee and consequential condition affecting the left hip; consideration of Wollongong Nursing Home P/L v Dewar and Gradan Bathrooms P/L v Workers Compensation Nominal Insurer; Held – worker has had various periods of partial and total incapacity as a result of the injury to the right knee and consequential condition affecting the left hip; award of weekly payments of compensation made accordingly.
Decision date: 11 December 2024 | Member: John Isaksen
Vella v State of New South Wales (NSW Police Force) [2024] NSWPIC 689
Workers Compensation Act 1987; claim for lump sum compensation for whole person impairment arising from a psychological injury; respondent conceded that the applicant police office had suffered a psychological injury in the course of his employment; a section 11A defence raised in the section 78 notice was not pressed at hearing; only real issue was whether the applicant had suffered a psychological injury in the course of one assault and was it an injury within the meaning of section 4(a) or whether the injury was a disease injury within the meaning of section 4(b)(i); Held – that having regard to all the evidence the applicant’s psychological injury was a disease injury within the meaning of section 4(b)(i); no issue of principle.
Decision date: 11 December 2024 | Member: Michael Moore
Long v Tyco International Pty Ltd t/as O'Donnell Griffin [2024] NSWPIC 690
Workers Compensation Act 1987; accepted injury to lumbar spine on 8 March 1995 and 14 August 1995 when the applicant was employed as a labourer for the respondent; whether the right hip also injured in frank incident or due to the nature and conditions of employment ending on 14 August 1995; lack of contemporaneous evidence linking hip symptoms to the incident; inconsistent reporting of injury; other possible explanations for the applicant’s condition; Nguyen v Cosmopolitan Homes and Watson v Foxman discussed; Held – not satisfied that applicant discharged onus of proof with regards to injury; award for respondent with respect to claim for section 60 expenses with regards the right hip.
Decision date: 11 December 2024 | Member: Diana Benk
Motor Accidents Medical Review Panel Decisions
Gadsden v QBE Insurance (Australia) Limited [2024] NSWPICMP 795
Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injury; cervical spine, lumbar spine, left shoulder, and right shoulder; Medical Assessor (MA) Ho found that the injuries were caused by the motor accident to the cervical spine, lumbar spine, left shoulder, and right shoulder; MA Ho assessed whole person impairment (WPI) as 10% for right shoulder; re-examination by Panel; the Panel found that the following injuries were caused by the motor accident cervical spine, lumbar spine, and right shoulder; the Panel found that injury to the left shoulder was not caused by the motor accident; consideration of pre-existing impairment and clauses 6.31, 6.32 and 6.33 of the Guidelines; the Panel assessed WPI as 0% to cervical spine, 0% to lumbar spine, and 7% right shoulder; finding a total 7% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 7%; the Panel revoked the earlier certificate and issued a new certificate.
Decision date: 26 November 2024 | Panel Members: Member Stephen Boyd-Boland, Dr Leslie Barnsley, and Dr Drew Dixon | Injury module: Spine and Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Dean [2024] NSWPICMP 824
Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 7 August 2020 when the insured motor vehicle ran a red light and collided with the claimant’s vehicle as it moved through an intersection; assessment of permanent impairment of injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder and knees; claimant re-examined by Review Panel; Held – original assessment of 20% revoked and replacement certificate issued.
Decision date: 4 December 2024 | Panel Members: Member Maurice Castagnet, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb
Rosier v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 825
Review of Medical Assessment; threshold injury; cervical spine, soft tissue injury; right shoulder; tiny intrasubstance tear at the mid foot point; tenderness over the glenohumeral joint; signs of radiculopathy; lateral force in motor vehicle collision; tendinopathic changes with the supraspinatus tendon; frozen shoulder; non-threshold injury; Held – certificate revoked and replacement issued.
Decision date: 4 December 2024 | Panel Members: Member Hugh Macken, Dr Mohammed Assem, and Dr Les Barnsley | Injury module: Spine and Upper Limb
Alameddine v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 828
Review of Medical Assessment; threshold injury; panic disorder with agoraphobia; specific phobia of driving in partial remission; persistent depressive disorder; prior medical history; panic attacks and anxiety; intrusive memory; prior medical disabilities; current functioning; personal care; social activities; poor concentration; prior medical history; marked reduction of daily functioning; diagnosis of panic disorder with agoraphobia; diagnosis of persistent depressive disorder, non-threshold injury; Held – certificate revoked and replacement issued.
Decision date: 5 December 2024 | Panel Members: Member Hugh Macken, Dr Paul Friend, and Dr Surabhi Verma | Injury module: Mental and Behavioural
QBE Insurance (Australia) Limited v Lam [2024] NSWPICMP 831
Motor Accident Injuries Act 2017; medical dispute as to whole person impairment; the claimant was injured in a motor accident that occurred on 25 June 2019 at Cabramatta; insured vehicle reversed at speed from a driveway and struck the claimant’s vehicle on left passenger side; claimant’s head struck the steering wheel; claimant, her husband and children were conveyed to Liverpool Hospital by ambulance; claimant began to experience back pain which worsened over the next few days; claimant suffered a ligament injury in her shoulder and other soft tissue injuries; claimant began to experience nightmares and flashbacks, fear of driving, anxiety, nausea and poor sleep; claimant was referred to a clinical psychologist for treatment; insurer admitted liability for the claim; claimant’s post-traumatic stress disorder certified by Medical Assessor (MA) Samuell to be caused by the subject accident and as a non-threshold injury; MA Shen certified claimant suffers from post-traumatic stress disorder and persistent depressive disorder caused by subject accident; he assessed 17% whole person impairment (WPI); Review Panel makes same diagnosis but assesses 7% WPI; Review Panel gives lower rating for concentration, persistence and pace (2) than did MA Shen (4); Held – certificate revoked; no matters of principle.
Decision date: 6 December 2024 | Panel Members: Member Gary Victor Patterson, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Hasoon [2024] NSWPICMP 833
Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Gothelf; the claimant suffered injury in a motor vehicle accident on 23 July 2022; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, thoracic spine, lumbar spine and both shoulders; MA Gothelf assessed 25% WPI; Held – significant pain behaviours; no organic basis for presentation; claimant sustained soft tissue injury to cervical spine, to thoracic spine and to lumbar spine; each assessed as DRE I or 0% WPI; injury to each shoulder due to referred pain from cervical spine as per Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; due to inconsistencies assessed by way of analogy on basis of swelling of the acromioclavicular joint; left shoulder assessed at 2% WPI; right shoulder assessed at 3% WPI; certificate of MA Gothelf revoked; WPI assessed at 5%.
Decision date: 6 December 2024 | Panel Members: Member Susan McTegg, Dr Margaret Gibson, and Dr David Gorman | Injury module: Spine and Upper Limb
Allianz Australia Insurance Limited v Zlatanovic [2024] NSWPICMP 836
Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by medical assessor and review under section 7.23; claimant injured in motor vehicle accident of April 2019; issue of degree of WPI; review of Medical Assessment; Held – Panel revoked certificate of Medical Assessor; substituted determination of 5% WPI.
Decision date: 9 December 2024 | Panel Members: Member Terence Stern OAM, Dr Michael Couch, and Dr Shane Moloney | Injury module: Spine and Minor Skin
Insurance Australia Limited t/as NRMA Insurance v Tsesmetzis [2024] NSWPICMP 837
Motor Accident Injuries Act 2017; treatment dispute; whether request for a new mattress is reasonable and necessary and related to the injury caused by the motor accident; claimant found to have suffered various musculoskeletal injuries as a result of the accident, including to cervical, thoracic and lumbar spine; on balance of probabilities fracture to the coccyx not caused by the motor accident; Held – original certificate revoked and found the mattress is related to the injuries caused by the accident but is not reasonable and necessary; replacement of mattress does not represent accepted treatment.
Decision date: 9 December 2024 | Panel Members: Member Elizabeth Medland, Dr Michael Couch, and Dr Alan Home | Injury module: Treatment Type: Equipment
Insurance Australia Limited t/as NRMA Insurance v Hasoon [2024] NSWPICMP 843
Medical review of certificate of Medical Assessor (MA) Garvey; motor vehicle accident on 23 July 2022; the dispute related to treatment under the Motor Accident Injuries Act 2017; injury sustained to cervical spine, thoracic spine; lumbar spine and both shoulders; MA Garvey certified endoscopic gastric balloon insertion did not relate to the injury caused by the accident and was not reasonable and necessary and will not improve recovery; MA Garvey certified Ozempic injections relate to the injury caused by the accident, were reasonable and necessary and will improve recovery; Held – endoscopic gastric balloon insertion and Ozempic injections relate to the injury caused by the accident having regard to the claimant’s weight gain caused by decreased physical activity, dietary changes and increased alcohol consumption; endoscopic gastric balloon insertion is not reasonable and necessary and will not improve recovery of claimant where it can be associated with adverse effects and where not associated with comprehensive weight loss program; Ozempic injections not reasonable and necessary and will not improve recovery of claimant where claimant has been using Ozempic for three to four months without success; and where he is unlikely to adopt a comprehensive weight management program; certificate of MA Garvey revoked.
Decision date: 10 December 2024 | Panel Members: Member Susan McTegg, Dr Margaret Gibson, and Dr David Gorman | Injury module: Treatment Type: Other
Insurance Australia Limited t/as NRMA Insurance v Fayad [2024] NSWPICMP 844
Motor Accident Injuries Act 2017; claimant was a driver of a car hit from drivers side by another car; on review, the Panel found that the injuries to the claimant’s cervical spine were caused by the motor accident; claimant’s physiotherapy for the cervical spine, and surgery for the cervical spine at the C5/C6 and C6/C7 level, is reasonable and necessary in the circumstances; causation of claimant’s injuries considered; the Panel should make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to claimant’s injury; the motor vehicle accident was a substantial contributing factor to claimant’s physical injuries and were causally related to the subject motor vehicle accident; Panel considered expert evidence from a traffic engineer and also medical journal articles about spinal injury; AAI Limited v Phillips, Allianz Australia Insurance Limited v Susak, Briggs v IAG Limited trading as NRMA Insurance (No. 2), and Briggs v IAG Limited trading as NRMA Insurance (No. 3) considered and applied for causation and treatment; Held – Original medical certificate regarding proposed treatment and care of physiotherapy and cervical surgery affirmed.
Decision date: 10 December 2024 | Panel Members: Member Ray Plibersek, Dr Michael Couch, and Dr Drew Dixon | Injury module: Treatment Type: Surgery and Physiotherapy Treatment
Fayad v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 845
Motor Accident Injuries Act 2017; claimant was a driver of a car hit from drivers side by another car; on review, the Panel found that injuries to the cervical spine - disc bulge at the C5/6 level and C6/7 level with bilateral C6 nerve impingement with radiculopathy caused by the motor accident are non-threshold injuries; the Panel found the claimant’s significant pre-existing degenerative condition when subject to the sudden impact of the motor accident has caused or resulted in her underlying asymptomatic degenerative disease becoming symptomatic; the subject motor accident has caused an aggravation of the claimant’s degenerative disc disease; before the accident there was no evidence of the claimant experiencing any significant cervical spine pain or radicular symptoms; then shortly after the accident she reported cervical pain and symptoms down her left arm.; the common law view of causation in such a case doesn't require that the accident be a direct cause of the injury only that the accident made a material contribution to that injury; Briggs v IAG Limited trading as NRMA Insurance (No. 2) and Wright J and AAI Ltd t/as AAMI v Ahmed; the Panel also considered expert evidence from a traffic engineer and also medical journal articles about spinal injury. Held –original medical certificate regarding threshold injury revoked.
Decision date: 10 December 2024 | Panel Members: Member Ray Plibersek, Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine
Dunn v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 851
Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI); assessment by Medical Assessor (MA) Curtin of 10%; claimant’s application for review under section 7.26; claimant passenger aged 17 in rear of car which lost control and hit a pole; claimant sustained severe abdominal injuries which required surgery and caused scarring; jaw and teeth injuries which caused difficulty with masticating; claimant alleged a psychological condition which caused her to chew on her hands and arms which caused scarring; MA Curtin had not assessed scarring of hands and arms because only abdominal surgical scarring was referred to in the application and submissions; claimant re-examined by both MA’s; Panel found jaw and dental injuries caused by the accident and that they caused an impairment to mastication (certain foods the claimant avoided eating) which was assessed at 8%; insurer objected to the Panel assessing the scarring of the hands and arms on the basis of Mandoukas v Allianz and on the basis this scarring was not an injury caused in the accident (not caused by driving) but was a consequential injury and there was no psychiatric finding of a mental illness causing the biting of the hands and arms; Panel found scarring to hands and arms should be assessed as insurer on notice of claim as claimant’s expert had referred to it and assessed it and report annexed to application; skin an organ which Guidelines required to be assessed as a whole; Mandoukos v Allianz, Skates v Hill Industries and Elamma v AAI referred to; Panel found abdominal scarring was a consequential impairment following from injury caused by the accident and scarring caused by a psychiatric injury was no different; Nguyen v MAA applied; skin and scarring impairment assessed at 2%; Held – Certificate of MA Curtin confirmed.
Decision date: 11 December 2024 | Panel Members: Member Belinda Cassidy, Dr Adrian Vertoudakis, and Dr John Giles | Injury module: Facial Injury and Impairment, Skin, Minor Dental
Singh v Allianz Australia Insurance Limited [2024] NSWPICMP 852
Motor Accident Injuries Act 2017; Medical Panel Review of threshold injury dispute; claimant a pedestrian when the insured vehicle struck her; Issue of whether a tear of the triangular fibrocartilage complex (TFCC); clinically diagnosed by treating specialist, however, no evidence on radiology; Held – on balance of probabilities, and on available evidence, no TFCC tear; sprain injury to right wrist and soft tissue injuries to the cervical and thoracic spine and chest/rib cage; lumbar spine injury not caused by the motor accident; original medical assessment confirmed.
Decision date: 11 December 2024 | Panel Members: Member Elizabeth Medland, Dr David Gorman, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Avakian v Allianz Australia Insurance Limited [2024] NSWPICMP 853
Assessment of degree of permanent impairment; activities of daily living; conscious of visible scarring; less socially active; application of daily moisturiser; split skin graft scarring; reduced sensation medial aspect right lower thigh; skin scarring and disfigurement are assessed as a skin condition; skin graft scar easily identifiable colour contrast; visible tropic changes in the skin graft; stitch marks visible; adherence present; TEMSKI criteria; 4% whole person impairment; Held – certificate confirmed.
Decision date: 11 December 2024 | Panel Members: Member Hugh Macken, Dr Michael McGlynn, and Dr Shane Moloney | Injury module: Skin
Rafeletos v QBE Insurance (Australia) Limited [2024] NSWPICMP 854
Motor Accident Injuries Act 2017; threshold injury; Review of Medical Assessor (MA) Kuru’s certificate dated 31 May 2024 finding the accident did not cause referred injury; claimant injured in roundabout collision on 28 April 2023; assessment by the Medical Review Panel of whether the claimant suffered a threshold injury as cervical spine injury, disc bulge at right C5/6; C5/6 left foraminal narrowing and disc bulge; with radiculopathy signs including right arm tingling and numbness and muscle weakness; radicular symptoms after accident but no verifiable radiculopathy; re-examination; no objective verifiable radiculopathy in line with Guidelines; credible claimant; Panel considered whether referred injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage; claimant’s imaging showed disc bulge at C5/6; no history of cervical conditions before accident; collision capable of causing disc bulge; consistent symptoms; Panel considered Briggs No 2 on causation and Momand v Allianz Australia Insurance Limited on threshold injury; Held – referred injury is not a threshold injury under the Act; Panel was satisfied that the claimant accident caused a traumatic protrusion which caused a tear of the outer annular fibres of the disc; MA Kuru’s certificate revoked.
Decision date: 11 December 2024 | Panel Members: Member Terence O’Riain, Dr Margaret Gibson, and Dr Thomas Rosenthal | Injury module: Spine
Workers Compensation Medical Appeal Panel Decisions
Fyvie v Grant Fyvie Electrical Pty Ltd [2024] NSWPICMP 826
Assessment of all levels of the spine (cervical thoracic and lumbar at DRE I (0% whole person impairment)) and the worker appealed alleging inadequate explanation for failing to find non-verifiable radiculopathy; Appeal Panel satisfied as to adequacy of reasons when Medical Assessment Certificate (MAC) read as a whole and found no error; Held – MAC confirmed.
Decision date: 4 December 2024 | Panel Members: Member Jane Peacock, Dr John O’Neill, and Dr Michael Davies | Body system: Spine
Blatchford v Newcastle City Council [2024] NSWPICMP 827
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale categories because of an inadequate path of reasoning; Appeal Panel found error and a re-examination was considered necessary; Held – Medical Assessment Certificate revoked.
Decision date: 4 December 2024 | Panel Members: Member Jane Peacock, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychological/Psychiatric
Poulis v Deicorp Pty Ltd [2024] NSWPICMP 830
Workplace Injury Management and Workers Compensation Act 1998; appeal by a claimant from assessment of 6% for psychiatric injury; whether the fresh evidence from the claimant should be admitted; whether error established in four categories of the psychiatric impairment rating scale; Held – the claimant did perhaps not appreciate that a fresh statement subsequent to the Medical Assessment Certificate (MAC) was not automatically admissible and no submissions were made in that regard; respondent objected and the fresh statement was rejected; section 328(3) considered, Lukacevic v Coates Hire Operations Pty Limited considered and applied; fresh statement argumentative and proposed degree of incompetence by the MA that was not plausible; Jones v The Registrar WCC and Bojko v ICM Property Service Pty Ltd & Ors considered and presumption of regularity applied; fresh statement also conceded that the claimant did perform some of the functions, but argument as to motives dismissed as being irrelevant; claimant's reliance on her qualified expert rejected; Western Sydney Health District v Chan and Wingfoot Australia Pty Ltd v Kocak considered and applied; MAC confirmed.
Decision date: 5 December 2024 | Panel Members: Member John Wynyard, Dr Graham Blom, and Dr John Baker| Body system: Psychological/Psychiatric
Wilkinson v Crane Payment Innovations Pty Ltd [2024] NSWPICMP 834
Medical Assessor (MA) assessed 9% whole person impairment (WPI) resulting from psychiatric injury; worker appealed on the basis that MA failed to consider adequately his statements and the report of Dr Glen Smith in two psychiatric impairment rating scale categories; Panel reviewed the evidence and were satisfied there was no error in the assessment of social functioning but found error in the assessment on concentration, persistence and pace; however, despite the assessment of class 3 in place of class 2 for concentration, persistence and pace, there was no change to the assessment of WPI; Held – review did not lead to a different result and Medical Assessment Certificate confirmed.
Decision date: 6 December 2024 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Centralized Services Pty Ltd v Akbari [2024] NSWPICMP 838
Psychological injury; concurrent primary and secondary injuries; failure by Medical Assessor to specifically address secondary psychological injury constitutes demonstrable error requiring re-examination by Appeal Panel member; upon re-examination, respondent worker assessed as having 22% whole person impairment; Held – original Medical Assessment Certificate revoked.
Decision date: 9 December 2024 | Panel Members: Member Cameron Burge, Dr Ash Takyar, and Dr John Baker | Body system: Psychological/Psychiatric
McGrath v State of New South Wales (New South Wales Police Force) [2024] NSWPICMP 839
Appeal by police officer from 9% whole person impairment for psychiatric injury; whether Medical Assessor (MA) had erred in not following Ballas v Department of Education (State of New South Wales) and had applied ‘irrelevant considerations’ in social and recreational activities; whether unanimous opinion as to a higher rating by experts on both sides of the record relevant; Held – appellant apprehension of principle in Ballas mistaken; Ballas and Botha v Secretary, NSW Department of Customer Service considered and applied; reasons given by both medical experts did not justify higher rating but in any event; function of MA not to adjudicate regarding other opinions; Wingfoot Australia Partners Pty Ltd v Kocak applied; Medical Assessment Certificate confirmed.
Decision date: 9 December 2024 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric
Auspaint Pty Ltd v Khaksar [2024] NSWPICMP 840
Whether Medical Assessor (MA) erred in assessment of left upper extremity and left lower extremity; assessment in relation to cervical spine not challenged; the matter was subject to a consent referral in relation to the applicant’s left upper extremity (shoulder, wrist) and left lower extremity (knee); the MA included assessments of the left thumb and left elbow; the appellant appealed, submitting the elbow and thumb should not have been included, and also the method of assessment of the left knee was inappropriate; Held – the MA erred in including the left thumb; the MA did not err in including a reference to the left elbow, as he was required to assess forearm supination and pronation in determining any impairment to the wrist; whilst those measurements are contained under the heading “elbow” in AMA5, they assess restrictions in movement of the wrist and are therefore appropriately included; the method of assessment of the left knee was available and appropriate; there was no error in the manner in which the MA undertook his assessment of that body system; Medical Assessment Certificate (MAC) revoked, new MAC issued, assessing respondent with 18% WPI.
Decision date: 9 December 2024 | Panel Members: Member Cameron Burge, Dr John Brian Stephenson, and Dr Alan Home | Body system: Left Lower Extremity
Lipman Pty Ltd v Prater [2024] NSWPICMP 841
Appeal from assessment of whole person impairment with respect to both shoulders; where injury resulted from the nature and conditions of employment over time; whether Medical Assessor erred in omitting to make a deduction for pre-existing arthritis of the acromioclavicular joint of each shoulder; whether there was evidence of any such condition prior to commencement of the nature and conditions of employment; Held – Medical Assessment Certificate confirmed.
Decision date: 9 December 2024 | Panel Members: Member Richard Perrignon, Dr Alan Home, and Dr Doron Sher| Body system: Left and Right Upper Extremity
Cawley v Blakes Pest Management Pty Ltd [2024] NSWPICMP 846
Appeal from assessment of whole person impairment (left shoulder); respondent agreed that the condition of the left shoulder resulted from injury to the right shoulder; whether Medical Assessor erred in deducting ten-tenths on the basis that the left shoulder condition did not result from injury to the right shoulder; Held – by consent of the parties, Medical Assessment Certificate revoked and replaced.
Decision date: 10 December 2024 | Panel Members: Member Richard Perrignon, Dr Margaret Gibson, and Dr Doron Sher | Body system: Left and Right Upper Extremity, Digestive System
Crown Scaffold Pty Ltd v King [2024] NSWPICMP 847
Whether Medical Assessor (MA) erred by failing to explain his assessment of respondent’s impairment due to injury to long thoracic nerve; whether MA erred by combining respondent’s impairment due to restricted range of motion of left shoulder and respondent’s impairment due to injury to long thoracic nerve; whether MA erred by failing to grade the respondent’s impairment due to long thoracic nerve; Appeal Panel held MA erred by failing to grade the respondent’s impairment due to long thoracic nerve, but did not err with respect to the other matters appellant raised; respondent re-examined; Held – Medical Assessment Certificate revoked.
Decision date: 10 December 2024 | Panel Members: Member Marshal Douglas, Dr Mark Burns, and Dr John Brian Stephenson| Body system: Spine, Right Lower Extremity, Left Upper and Lower Extremity
Philliponi v Hireup Pty Ltd [2024] NSWPICMP 848
Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale categories (employability); Appeal Panel found error; Held – Medical Assessment Certificate revoked.
Decision date: 10 December 2024 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Lang v Secretary, Department of Communities and Justice [2024] NSWPICMP 849
The appellant submitted that the Medical Assessor erred in his assessments with respect to five categories in the psychiatric impairment rating scale, namely self-care and personal hygiene, travel, social functioning, concentration, persistence and pace and employability, and failed to consider the effect of treatment in his assessment of impairment, having regard to Clause 11.8 of the Guidelines; the Panel found errors in some categories; no error regarding treatment effects; the worker was taking significant medication for his injury; Held – Medical Assessment Certificate revoked.
Decision date: 10 December 2024 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Michael Hong| Body system: Psychological/Psychiatric
UGL Operations and Maintenance (Services) Pty Ltd v Claes [2024] NSWPICMP 850
Assessment of binaural hearing loss of 11% whole person impairment by Medical Assessor (MA); respondent employer appealed on the basis that the Medical Assessment Certificate (MAC) contained a demonstrable error in the calculation of total binaural hearing impairment; Panel agreed that the MA made an error in his calculations; Held – MAC revoked.
Decision date: 10 December 2024 | Panel Members: Member Carolyn Rimmer, Dr Robert Payten, and Dr Brian Williams | Body system: Hearing
Motor Accidents Merit Review Panel Decision
Insurance Australia Limited t/as NRMA Insurance v Borrow [2024] NSWPICMRP 6
Motor Accident Injuries Act 2017 (MAI Act); review of merit review decision; whether insurer entitled to refuse payment of statutory benefits in accordance with part 3 of the Civil Liability Act (CL Act) as applied by section 3.39 of the MAI Act; pure mental harm; claimant’s husband riding motorbike when he lost control, struck another vehicle and collided with guard rail dying shortly thereafter; claimant seeking statutory benefits against insurer of husband’s vehicle; finding that husband wholly at fault for the purposes of this dispute; concept of review; doubtful or no requirement of satisfaction of error; Tan v National Australia Bank Ltd applied; statutory interpretation where section of MAI Act specifically requires that it be read “subject to any necessary modifications”; court or tribunal should refrain from projecting policy views into the interpretation process; Australian Education Union v Department of Education and Children’s Services applied; insurer submitted that section 30 of CL Act required the presence of tortious defendant; no tortious defendant required given no-fault statutory scheme; Homsi v Homsi referred to; AAI Ltd (t/as GIO) v Evic and AAI Ltd v Singh applied; section 3.39 applies to payment of statutory benefits; text of legislation does not require tortious defendant; necessary modifications to section 30 of the CL Act requires that insurer is liable for statutory benefits for pure mental harm in connection with another person being killed or injured; section 3.39 of the MAI Act subject to clause 8 of the MAI Regulations; clause 8 modifies application of CL Act in relation to mental harm under section 3.39; necessary intendment of clause 8(2) and (3) that the cessation of benefits applies because no fault benefits are payable in the first 52 weeks; Held – merit review decision confirmed.
Decision date: 5 December 2024 | Merit Reviewers: John Harris, Bianca Montgomery-Hribar, and Anthony Scarcella
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