Legal Bulletin No. 205

Issued 4 April 2025

Welcome to the two hundred and fifth 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

McQuillan v Sean Mitchell Agencies Pty Ltd [2025] NSWPICPD 22

Workers compensation; Workers Compensation Act 1987 section 60; whether need for surgery “results from” injury; alleged factual error; Held – amend the name of the respondent wherever it appears to read Sean Mitchell Agencies Pty Ltd; the Certificate of Determination dated 22 April 2024 is confirmed.

Decision date: 20 March 2025 | Before: Acting Deputy President Paul Sweeney

Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2) [2025] NSWPICPD 23

Workers compensation; section 57 of the Personal Injury Commission Act 2020; reconsideration of decisions; principles to be applied; Procedural Direction WC 7; Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244; Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642; Samuel v Sebel Furniture [2006] NSWWCCPD 141; Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29 applied; Held – the application for reconsideration of the decision in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 is declined; the matter is remitted again to a non-presidential member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with the reasons expressed in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80.

Decision date: 21 March 2025 | Before: Deputy President Elizabeth Wood

Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 3) [2025] NSWPICPD 24

Workers compensation; section 57 of the Personal Injury Commission Act 2020; reconsideration of decisions; Held – the application for reconsideration of the decision in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 and Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2) [2025] NSWPICPD 23 is declined.

Decision date: 24 March 2025 | Before: Deputy President Elizabeth Wood

Romeo v Vanguarde Pty Ltd [2025] NSWPICPD 25

Workers compensation; factual error within the meaning of section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; weight of medical opinion; application of Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505; credibility; Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; inferences; Luxton v Vines [1952] HCA 19; 85 CLR 352; Held – the Certificate of Determination dated 29 April 2024 is confirmed.

Decision date: 25 March 2025 | Before: Deputy President Michael Snell

Hallmann v Southern Cross University [2025] NSWPICPD 26

Workers compensation; section 60 of the Workers Compensation Act 1987; claim for cost of physiotherapy treatment; gym membership; personal training, and exercise physiology; the Member made orders for payment of treatment for a particular time period; appeal by worker seeking orders for those treatment expenses to be paid for the duration of the worker’s lifetime; consideration of treating doctor’s reports; section 59A of the Workers Compensation Act 1987; Held – the appeal is dismissed; the Member’s Certificate of Determination dated 26 April 2024 is confirmed.

Decision date: 27 March 2025 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Sainsbury [2025] NSWPIC 97

Motor Accident Injuries Act 2017; approval of settlement of $95,000 under section 6.23; claimant sustained psychiatric injury as a result of her mother’s death in a motor vehicle accident; liability admitted by insurer; past and future damages for economic loss awarded; Held – settlement of $95,000 approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 20 March 2025 | Member: Terence Stern OAM

Brown v AAI Limited t/as AAMI [2025] NSWPIC 103

Motor Accident Injuries Act 2017; the claimant was injured in a motor vehicle accident on 11 December 2020; the insurer wholly admitted liability for the claim; assessment of damages; claim for damages pursuant to section 7.36; non-economic and economic loss damages for physical and psychological injury; Division 4.2 applied; past economic loss; section 4.2 applied; Livingstone v Rawyards Coal Co applied; Medlin v State Government Insurance Commission applied; Husher v Husher applied; future economic loss; Nominal Defendant v Livaja applied; section 4.7 applied; non-economic loss; section 4.11; Hodgson v Crane applied; Planet Fisheries Pty Ltd v La Rosa applied; James Hardie & Co v Newton applied; Held – damages for past, future and non-economic loss assessed at $1,060,300.36; claimant’s costs assessed at $74,377.20 inclusive of GST.

Decision date: 21 March 2025 | Member: Terence Stern OAM

Insurance Australia Limited t/as NRMA Insurance v Kundu [2025] NSWPIC 104

Motor Accident Injuries Act 2017; settlement approval; the claimant was injured on 16 December 2022 at her family home inside the garage; the claimant was working as a casual educator at the of the accident and has not worked since the accident due to her injuries; insurer admits liability; the insurer concedes 15% for whole person impairment (WPI); the claimant suffered a severe left tibial plateau fracture and traumatic flare up in her left shoulder against pre-existing primary glenohumeral osteoarthritis; the claimant underwent a total left knee replacement and has received physiotherapy for both her shoulder and knee pain; the treating orthopaedic surgeon considered further improvement was still to be expected but that physiotherapy was unlikely to be of significant benefit given the claimant’s pre-existing osteoarthritis; the claimant may require an arthroplasty if the claimant’s symptoms didn’t improve; the claimant does not want further surgery; the claimant is aware no entitlement to future statutory benefits once settlement is approved; the settlement complies with clause 7.37 of the Motor Accident Guidelines (the Guidelines); Held – settlement approved in the amount of $432,494.84; consisting of non-economic loss in the amount of $300,000.00, past economic loss of $42,230.68, past superannuation of $4,109.77, future economic loss of $76,963.98, and future superannuation of $9,190.41; less $30,146.34 for statutory benefits paid.

Decision date: 21 March 2025 | Member: Philip Carr

Fraser v Allianz Australia Insurance Limited [2025] NSWPIC 105

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); claimant's mother and sister injured in a motor vehicle accident; claimant not present at the time and did not witness the accident; claim for pure mental harm arising out of the accident; liability admitted; insurer conceded she had sustained a non-threshold injury; claimant was 13-years-old at the date of the accident; alleged disruption to her schooling and after leaving school disruption in her ability to work part time in child care; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss.

Decision date: 24 March 2025 | Member: David Ford

Insurance Australia Limited t/as NRMA Insurance v Thompson [2025] NSWPIC 111

Motor Accident Injuries Act 2017; settlement approval; $180,000 non-economic loss only; 92-year-old pensioner; insurer conceded entitlement to non-economic loss; injuries include now healed left and right rib fractures, sternal fracture, right shoulder fracture, and cervical injury; Held – settlement approved under section 6.23(2)(b); settlement complies with clause 7.37 of the Motor Accident Guidelines, Version 9.3.

Decision date: 25 March 2025 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Allan v L.J Livermore & T.F Ritchie [2025] NSWPIC 96

Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; medical expenses claim pursuant to section 60; applicant assaulted at work and suffered injury; left knee and lumbar spine injuries accepted; consequential right wrist injury later accepted; applicant seeks to have right hip, right knee, and right foot conditions accepted as consequential to accepted injuries; applicant contends altered gait and falls relevant to consequential causation; lower right side conditions disputed by respondent as consequential to workplace injury; nature of available supporting medical evidence; sufficiency for establishing causal chain; Held – available evidence does not reasonably establish lower right side conditions consequential to accepted workplace injuries; referral to Medical Assessor for assessment of whole person impairment on lumbar spine, left knee (with scarring from surgery), and right wrist; award for respondent on right hip, right knee, and right foot.

Decision date: 19 March 2025 | Member: Adam Halstead

Robinson v State of New South Wales (NSW Police Force) & Ors [2025] NSWPIC 98

Claim for lump sum death benefit and interest; deceased worker was an exempt worker; liability accepted; insufficient evidence at preliminary conference to permit determination as to whether proposed apportionment of lump sum between dependants was appropriate; further preliminary conference appointed; findings and orders made at second preliminary conference; application by second and third respondents for increase in costs on the basis that “additional work” was required; fourth respondent did not seek an increase in her costs and made no submissions; applicant did not respond to request for submissions; first respondent opposed claim for increase in costs; Held – the matter did not require additional work but rather work that should previously have been done to provide appropriate evidence to enable apportionment to be determined; application by second and third respondents for increase in costs declined.

Decision date: 20 March 2025 | Senior Member: Kerry Haddock

Sen v State of New South Wales (South Western Sydney Local Health District) [2025] NSWPIC 99

Workers Compensation Act 1987; section 38; whether no current work capacity or some current work capacity; whether current work capacity likely to continue indefinitely; whether applicant is eligible to receive weekly compensation pursuant to section 38; Holmes v Central Coast Council cited and applied; Held – the name of the respondent is amended to “State of New South Wales (South Western Sydney Local Health District)”; that the applicant had no current work capacity prior to and as at 8 May 2023 and that she has continued to have no current work capacity to date and is likely to continue indefinitely to have no current work capacity; the respondent is to pay the applicant pursuant to section 38; the respondent is to pay the applicant’s medical and treatment expenses pursuant to section 60 in respect to injury to the left knee, left ankle, right knee, consequential psychological condition, and chronic pain syndrome.

Decision date: 20 March 2025 | Member: John Turner

Frecklington v Haydn John Jobson (t/as Canowindra Bottleshop Bottlemart) [2025] NSWPIC 101

Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66 as a result of primary psychological injury sustained arising out of or in the course of her employment; the respondent resisted the claim on the basis that the applicant had sustained a secondary psychological injury as a result of a physical injury sustained by the applicant in the course of her employment with the respondent; the parties agreed that there had to be a determination by the Commission as to whether the applicant had sustained a primary or secondary psychological injury in accordance with the finding of Campbell J in State of New South Wales (NSW Department of Education) v Kaur; detailed examination of lay and treating and expert medical evidence; Held –finding that the applicant had sustained a primary psychological injury arising out of or in the course of her employment with the respondent, and a secondary psychological injury as a result of physical injury sustained in the course of employment with the respondent; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of the primary psychological injury.

Decision date: 20 March 2025 | Member: Brett Batchelor

Makari v State of New South Wales (NSW Police Force) [2025] NSWPIC 102

Workers Compensation Act 1987; claim for whole person impairment arising out of consequential cervical spine and right shoulder conditions alleged to have arisen from accepted left 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 and right shoulder symptoms post injury in the absence of contemporaneous complaints, treatment or investigations; inconsistencies in evidence and allegations of claimed overuse; Held – applicant failed to discharge onus; award respondent in respect of the cervical spine and right shoulder claim.

Decision date: 21 March 2025 | Member: Diana Benk

Karalis v Venueslive Management Services (NSW) Pty Ltd [2025] NSWPIC 106

Workers Compensation Act 1987; claim pursuant to section 60 for costs of and incidental to lumbar surgery; injury accepted; whether the surgical procedure proposed is “reasonably necessary” medical treatment; where prior surgery at the same level failed to produce lasting benefit; whether lack of evidence in relation to co-morbid conditions prevented applicant from discharging onus; availability of alternative treatments; Held – the proposed surgery is reasonably necessary as a result of injury; respondent to pay costs of and incidental to the surgery in accordance with section 60.

Decision date: 24 March 2025 | Member: Rachel Homan

Daghagheleh v Star Waterproofing Pty Ltd [2025] NSWPIC 107

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); primary psychological injury; one medical assessment; primary psychological injury and physical injury arising from same incident; separate assessment for threshold purpose; Tokich v Tokich Holdings Pty Ltd and Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD considered; Held – applicant sustained primary psychological injury; applicant entitled to referral to Medical Assessor for assessment of permanent impairment resulting from primary psychological injury not withstanding earlier assessment of physical injuries resulting from same incident.

Decision date: 24 March 2025 | Member: Mitchell Strachan

Tysoe v State of New South Wales (NSW Police Force) [2025] NSWPIC 109

Workers Compensation Act 1987; section 67; injury to the lumbar spine and scarring (TEMSKI); dispute limited to the quantum of pain and suffering compensation payable pursuant to section 67; Government Supply Department v Abbott, Tyler v Marsden Industries, Jones Bros Bus Co Pty Ltd v Baker, Staker v North Broken Hill Pty Ltd, O’Neill v Star City Pty Ltd, Rico Pty Ltd v Road Traffic Authority, Corporate Ventures Pty Ltd v Borovac, and Bohanna & Appleton v Bohanna cited; Held – the respondent is to pay the applicant pursuant to section 66 $43,312.50 in respect of 24% whole person impairment in relation to the lumbar spine and scarring (TEMSKI) for injury sustained on 18 April 2010 in accordance with the Medical Assessment Certificate; the respondent is to pay the applicant $22,500 for pain and suffering compensation pursuant to section 67; the respondent to pay the applicant’s costs as agreed or assessed.

Decision date: 25 March 2025 | Member: John Turner

Scott v State of New South Wales (NSW Police Force) [2025] NSWPIC 110

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for injuries caused by nature and conditions of applicant’s 25 years as a police officer; whether applicant satisfied her onus; whether claim barred by sections 254 and 261 of the 1998 Act; whether applicant satisfied test for ‘main contributing factor’; Held – applicant failed to demonstrate any corroborative contemporaneous evidence; reliance on chiropractic evidence rejected; applicant’s expert failed to give a diagnosis or to explain nature of the disease case alleged; observations on expression ‘nature and conditions’; State of New South Wales (Sydney Local Health District) v Edwards, and Willoughby City Council v Kevric discussed and applied; onus not satisfied; Brown v Lewis applied; main contributing factor test inappropriate; Schedule 6, Part 19H clause 25 of the 1987 Act considered and applied; award respondent.

Decision date: 25 March 2025 | Member: John Wynyard

Motor Accidents Medical Review Panel Decisions

Petrie v QBE Insurance (Australia) Limited [2025] NSWPICMP 188

Motor Accident Injuries Act 2017; treatment and care dispute; claimant was driving his Hilux utility vehicle to work when the oncoming insured vehicle crossed into his lane; claimant was unable to swerve to the right due to oncoming traffic; claimant’s airbags deployed which may have saved him from death; Ambulance, Fire Brigade and Police Officers attended the scene; claimant was transported by ambulance to John Hunter Hospital where he was admitted for the next two days; insurer wholly admitted liability for the claim; claimant had a history of surgery at L5/S1 twice before the accident; recurrence of back pain and associated right leg pain after gardening event eight months prior to accident; proposed L5/S1 anterior lumbar interbody fusion; Medical Assessor (MA) found that the accident caused the claimant’s increased back pain; MA considered that the proposed surgery was not causally related to the accident, was reasonable but not necessary; Held –Review Panel finds proposed surgery is related to the accident; Review Panel notes that previous two surgeries at L5/S1 usually lead to discal instability at that level; stabilisation surgery is reasonable and necessary; Medical Assessment Certificate revoked.

Decision date: 20 March 2025 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Drew Dixon | Injury module: Treatment Type: Surgery

Sekuloska v AAI Limited t/as AAMI [2025] NSWPICMP 189

Motor Accident Injuries Act 2017; permanent impairment dispute; claimant suffered injuries to her neck, right shoulder, lower back, and right knee as a result of a motor accident; the claimant also claimed a consequential left shoulder injury due to favouring her injured right shoulder; the Review Panel noted that the only evidence of a consequential injury was in the claimant’s statement some 19 months after the motor accident and did not refer to the activities or symptoms which could have caused a condition or injury to the left shoulder; the Review Panel also expected the claimant would have sought medical attention to her left shoulder and had investigations performed if she had symptoms 6-12 months after the motor accident as mentioned in a medico-legal report; Review Panel therefore did not accept a consequential left shoulder injury causally related to the motor accident; in any event the left shoulder range of motion at the time of the panel re-examination would have resulted in a whole person impairment (WPI) of 0%; Review Panel assessed the other accident-related injuries as right shoulder 7% WPI, and right knee 2% WPI which combined to give 9% WPI; in relation to the lumbar spine the Review Panel noted pain in the weeks immediately before the motor accident but there was no certainty of any impairment; there was no impairment found at the time of the Review Panel’s re-examination; Held – the total WPI of 9% was the same as the original Medical Assessment Certificate (MAC) however the Review Panel found the lumbar spine to be causally related; MAC revoked and a new certificate issued.

Decision date: 20 March 2025 | Panel Members: Member Jeremy Lum, Dr David Gorman, and Dr Clive Kenna | Injury module: Spine, Upper Limb, and Lower Limb

Targa v QBE Insurance (Australia) Limited [2025] NSWPICMP 191

Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident on 12 January 2019; suffered psychological injury; Medical Assessor (MA) issued a certificate on 13 October 2022 and determined the whole person impairment (WPI) of the claimant was 9%; claimant made an application for review of the determination; the claimant died on 22 July 2023; the Review Panel provided its own decision notwithstanding the death of the claimant; Review Panel utilised the history of the claimant and material before it; Held – the Medical Assessment Certificate was revoked and the Review Panel substituted the determination of 18% WPI.

Decision date: 21 March 2025 | Panel Members: Member Terence Stern OAM, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Bozunovic [2025] NSWPICMP 195

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 July 2022; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 17%; insurer made application under section 7.26 for referral of assessment to the Review Panel; Held – the Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 13%; Medical Assessment Certificate was revoked and the Review Panel substituted a 13% WPI as a result of the accident.

Decision date: 24 March 2025 | Panel Members: Member Terence Stern OAM, Dr Alan Home, and Dr Michael Couch | Injury module: Spine, and Upper Limb

AAI Limited t/as GIO v Sen [2025] NSWPICMP 196

Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained injuries to the left knee, lumbar spine, and right knee in a motor accident on 12 October 2018; Medical Assessor (MA) determined that the left knee injury was a non-threshold injury and that the lumbar spine injury was a threshold injury; MA determined that the claimant’s right knee condition was not caused by the motor accident; review sought by the insurer under section 7.26; consideration and application of section 1.6, and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – the soft tissue injury to the left knee and soft tissue injury to the lumbar spine are threshold injuries; the claimed injury to the right knee was not caused by the motor accident on 12 October 2018; the Medical Assessment Certificate dated 20 January 2024 is revoked.

Decision date: 24 March 2025 | Panel Members: Member Anthony Scarcella, Dr Rhys Gray, and Dr Margaret Gibson | Injury module: Spine, and Lower Limb

Pannowitz v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 197

Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; claimant was the driver of a vehicle that was stationary at red traffic lights; struck in the rear; force of impact disputed; claimant struck her head on the steering wheel; claimant was assisted from her vehicle by the other driver and noted immediate pain in her neck, shoulders and back; claimant was wearing a seatbelt;  claimant suffered occasional pain in her lower back prior to the accident as a result of her having been a ballet dancer; claimant maintained she suffered injuries to her cervical, thoracic, and lumbar spine; no complaint of neck pain for some years post-accident; no mention in clinical records of neck pain; claimant’s cervical spine deteriorated rapidly in late 2019 without explanation; aggravated by near-miss incident on highway early in 2020; claimant underwent cervical fusion surgery within a few months thereafter; claimant paid for the surgery and was off work for some time; insurer admitted liability for the claim; Held – Review Panel satisfied that subject motor accident aggravated claimant’s pre-existing chronic lumbar condition; Review Panel not satisfied that subject accident caused soft-tissue injury to cervical spine; alternatively if it did the claimant had recovered; Review Panel assessed 5% WPI for lumbar spine and 0% WPI for cervical spine; Medical Assessment Certificate revoked.

Decision date: 25 March 2025 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Tai-Tak Wan | Injury module: Spine

Talevski v Allianz Australia Insurance Limited [2025] NSWPICMP 198

Motor Accident Injuries Act 2017; permanent impairment; review; claimant’s application following accident on 4 May 2018; Medical Assessor’s (MA) certificate dated 20 February 2024 assessed permanent impairment in the left ankle at 4% and 1% in the right ankle; causation for lumbar spine pain disputed; MA declined accident lumbar spine pain based on lack of contemporaneous complaints; claimant applied for review; claimant re-examined; different impairment assessed for lower limbs; lower limbs injuries could lead to altered gait and lumbar pain; claimant explained why back complaints were delayed; no objective evidence of pre or post-accident permanent impairment; DRE I for lumbar spine; 0% permanent impairment; Held – lumbar spine causally related to accident; different permanent impairment to lower limbs; Medical Assessment Certificate revoked; permanent impairment not greater than 10%.

Decision date: 25 March 2025 | Panel Members: Member Terence O'Riain, Dr Margaret Gibson, and Dr Tai-Tak Wan | Injury module: Spine, and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWPICMP 202

Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained psychological injuries in a motor accident on 7 October 2018; Medical Assessor (MA) determined that the claimant suffered a generalised anxiety disorder caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the Act; review sought by the insurer under section 7.26; consideration and application of section 1.6 and the Motor Accident Guidelines; Held – the claimant did not suffer any recognised psychiatric disorder caused by the motor accident on 7 October 2018; the Medical Assessment Certificate dated 12 December 2022 was revoked.

Decision date: 26 March 2025 | Panel Members: Member Anthony Scarcella, Dr Doron Samuell, and Dr Gerald Chew | Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Farag [2025] NSWPICMP 206

Motor Accidents Compensation Act 1999; medical review of medical assessment as to whether the permanent impairment as a result of the injury caused by the motor accident is greater than 10%; claimant is a 34-year-old male who suffered injury when the vehicle he was driving was hit by another vehicle on the passenger side; original medical assessment found a 19% whole person impairment (WPI) from injuries to the left and right shoulder, cervical spine, and lumbar spine; inconsistencies found; whether range of movement appropriate measure of impairment of the shoulders; Held – Review Panel found inconsistencies mean that impairment to be assessed by analogy; DRE I found in respect of cervical and lumbar spine; WPI assessed at 5%; Medical Assessment Certificate revoked.

Decision date: 26 March 2025 | Panel Members: Member Elizabeth Medland, Dr David Gorman, and Dr Christopher Oates | Injury module: Spine, and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Best v Secretary, Department of Communities and Justice [2025] NSWPICMP 183

Finding by Medical Assessor (MA) at first instance that appellant worker had not reached maximum medical improvement; whether that finding was based on use of incorrect criteria or contained a demonstrable error; the appellant suffered an injury in the nature of a respiratory condition in the course of her employment; the appellant argued the MA erred in making their decision as they had taken into account a refusal on the part of the appellant to undergo certain treatment rather than assessing her condition at the time of the assessment; Held – the MA did not rely on a reluctance or refusal on the part of the appellant to undergo certain treatment; rather the MA exercised their clinical judgment in determining there was no concrete diagnosis of the appellant’s condition such that it was incapable of being assessed at the time of their examination of the appellant; such a finding was open to the MA in the exercise of their clinical judgment; accordingly there was no error on the part of the MA nor did they utilise incorrect criteria; the Medical Assessment Certificate is confirmed.

Decision date: 19 March 2025 | Panel Members: Member Cameron Burge, Dr David Crocker, and Dr Peter Honeyman | Body system: Respiratory System

Geyeregger v State of New South Wales (NSW Police Force) [2025] NSWPICMP 184

The appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of three of the categories of the psychiatric impairment rating scale (PIRS) namely social and recreational activities, social functioning, and travel; further statement rejected; no errors found; the assessments were consistent with the evidence; Held – Medical Assessment Certificate confirmed.

Decision date: 19 March 2025 | Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Classic Carpentry Services Pty Ltd v Tideswell [2025] NSWPICMP 185

Workplace Injury Management and Workers Compensation Act 1998; calculation errors; accepted by the respondent; section 323; evidence of complaints and investigations shortly before work injury; consideration of pathology of those complaints in context of significant and traumatic injury; Medical Assessor failed to consider relevant evidence and failed to provide adequate reasons; Held – Medical Assessment Certificate revoked; deductions of one-tenth made for left shoulder and left knee.

Decision date: 20 March 2025 | Panel Members: Member Parnel McAdam, Dr James Bodel, and Dr Chris Oates | Body system: Right Upper Extremity (Right Shoulder and Right Elbow), Left Upper Extremity (Left Shoulder), Left Lower Extremity (Left Knee), Cervical Spine, and Scarring

Marsters v YP Space MNC Incorporated [2025] NSWPICMP 186

Assessment of primary psychiatric injury; appellant worker alleged assessment on basis of incorrect criteria and demonstrable error in assessment of all six of the psychiatric impairment rating scales (PIRS); Held – Appeal Panel found error made out in five of the six PIRS; worker re-examined; Medical Assessment Certificate revoked.

Decision date: 20 March 2025 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187

Workplace Injury Management and Workers Compensation Act 1998; application to appeal; request for oral hearing; no submissions provided as to why oral hearing appropriate; Galluzzo v Little applied; oral hearing not granted; submission that Medical Assessor had mischaracterised the injury rejected; no basis for submission that only one-third of the impairment should be attributed to aggravation of disease injury; section 323; no basis for submissions there should be deduction of two-third; Held – Medical Assessment Certificate Confirmed.

Decision date: 20 March 2025 | Panel Members: Member Parnel McAdam, Dr Doron Sher, and Dr Tommasino Mastroianni | Body system: Right and Left Upper Extremities (Shoulders)

Taylor v Absolute Aquarium Products Pty Ltd [2025] NSWPICMP 192

Workplace Injury Management and Workers Compensation Act 1998; member found that the appellant’s epilepsy was the result of the appellant’s injury; Member’s finding was confirmed on appeal; Medical Assessor (MA) found the appellant’s epilepsy condition was not the result of the appellant’s injury and did not assess the appellant had any permanent impairment of her nervous system as a result of her injury; Held – whether it was open to the MA to find the appellant’s epilepsy did not result from her injury; Appeal Panel held it was not; whether assessment of impairment can be made by reference to Section 13.b and Table 13-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) when bullet point criteria of paragraph 5.9 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) not met; Appeal Panel held it can because paragraph 5.9 modifies section 13.3a, 13.3c, 13.3d, 13.3e, and 13.3f of the AMA5 and not section 13.3b; Medical Assessment Certificate revoked.

Decision date: 21 March 2025 | Panel Members: Member Marshal Douglas, Dr Michael Davies, and Dr Sophia Lahz | Body system: Cervical Spine, and Nervous System (Epilepsy)

Del Pino v State of New South Wales (South Western Sydney Local Health District) [2025] NSWPICMP 193

Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment following knee replacement surgery; Medical Assessor made section 323 deduction of one-third; claim in respect of a frank incident which resulted in meniscal injury; underlying osteoarthritis meant that only appropriate treatment was total knee replacement; no error in one-third deduction; Held – Medical Assessment Certificate confirmed.

Decision date: 24 March 2025 | Panel Members: Member Catherine McDonald, Dr James Bodel, and Dr Margaret Gibson | Body system: Left Lower Extremity (Knee)

Chan v Sutherland United Services Club Ltd [2025] NSWPICMP 194

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 (PIRS) categories because of an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed.

Decision date: 24 March 2025 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Ypermachou v PMK Pty Ltd [2025] NSWPICMP 199

Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered injury in August 1995; determination by Member of nature of injuries and consequential conditions; medical dispute assessable under Table of Disabilities and whole person impairment (WPI); medical assessments by two Medical Assessors (MA) assessing different body systems including respiratory system for sleep apnoea; alleged error in both assessments; no claim or orders made for assessment of obstructive sleep apnoea under the Table of Disabilities; obstructive sleep apnoea or similar condition not assessable under the Table Disabilities; minor or incomplete misdescriptions in the Medical Assessment Certificate’s (MAC) not demonstrable errors; alleged errors of failure to provide adequate reasons not made out; reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning” by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether either the MAC contained a demonstrable error or the assessment was made based on incorrect criteria; reasons by MA’s were sufficient; Wingfoot Australia Partners Pty Ltd v Kocak; conclusion that sleep apnoea was well controlled; discussion of other evidence; reasons disclosed for this finding; Held – Medical Assessment Certificate confirmed.

Decision date: 25 March 2025 | Panel Members: Principal Member John Harris, Dr Gregory McGroder, and Dr David Crocker | Body system: Cervical Spine, Lumbar Spine, Respiratory System (Obstructive Sleep Apnoea), Left Upper Extremity (Elbow) (Consequential Condition), and Right Lower Extremity (Ankle)

State of New South Wales (NSW Police Force) v Turner [2025] NSWPICMP 200

Employer alleged assessment on basis of incorrect criteria and demonstrable error; assessment of lumbar spine by Medical Assessor as DRE III in circumstances where there was no finding of radiculopathy and no evidence to support a finding of radiculopathy (clause 4.27 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021); Held – Medical Assessment Certificate revoked.

Decision date: 25 March 2025 | Panel Members: Member Carolyn Rimmer, Dr Margaret Gibson, and Dr Roger Pillemer | Body system: Lumbar Spine, and Thoracic Spine

Motor Accidents Merit Review  Decision

Raza v Youi Pty Limited [2025] NSWPICMR 11

Motor Accident Injuries Act 2017; merit review of insurer’s calculation of the claimant’s pre-accident weekly earnings (PAWE); parties in agreement that the claimant is an earner and for PAWE to be calculated under Schedule 1, clause 4(1); claimant’s PAWE calculated by taking his earnings over the whole of the 12-month period immediately before the day of the accident and dividing by 52; Allianz Insurance Australia Limited v Shahmiri cited and applied; Held – the insurer’s reviewable decision was affirmed.

Decision date: 26 March 2025 | Merit Reviewer: Jeremy Lum

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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