Legal Bulletin No. 194
This bulletin was issued on 17 January 2025
Issued 17 January 2025
Welcome to the one hundred and ninety fourth 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.
Workers Compensation non-Presidential Member Decisions
Huang v Noni B Holdings Pty Ltd & Ors [2024] NSWPIC 671
Workers Compensation Act 1987; claim pursuant to section 25 (lump sum death benefit); the worker was exposed to nuts at her place of employment and suffered a fatal allergic reaction; the claim was defended on the basis that section 9A was not satisfied; Held – the death occurred in circumstances satisfying both sections 4 and 9A; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.
Decision date: 5 December 2024 | Senior Member: Elizabeth Beilby
Shipley v Visscher Caravelle Australia Pty Ltd [2024] NSWPIC 722
Claim for treatment of the applicant’s cervical spine; whether the applicant suffered injury to his cervical spine on 31 January 2020 and/or 2 July 2020; finding that the applicant suffered injury to his cervical spine on 31 January 2020; that injury resolved and has made no material contribution to the need for the proposed treatment; Held – award for the respondent in the claim for injury to the applicant’s cervical spine on 2 July 2020.
Decision date: 31 December 2024 | Member: Jill Toohey
Duarte v IOOF Service Co Pty Ltd [2024] NSWPIC 723
Claim for reasonably necessary treatment expenses for the applicant’s left shoulder; applicant suffered serious fracture to her left ankle in a fall on 5 April 2022; whether she also injured her left shoulder in that fall and/or in a consequential fall on 28 April 2022; absence of any contemporaneous evidence of injury to the left shoulder; no evidence in hospital records over several weeks or in treating doctor’s records; first evidence of injury appeared in worker’s Doctor’s report in March 2024; Held – award for the respondent.
Decision date: 31 December 2024 | Member: Jill Toohey
Lafaitele v Budget Rent-A-Car Operations Pty Ltd [2025] NSWPIC 4
Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to right lower extremity (knee), TEMSKI/scarring and respiratory system (sleep disorder consequential condition); whether the applicant sustained a consequential condition of the left knee and the digestive tract (GORD) as a result the accepted injury to right knee; Held – the applicant sustained a consequential condition of the left knee as a result of the accepted injury to the right knee; applicant did not sustain a consequential condition of the digestive tract as a result of the accepted injury to the right knee; matter remitted to the President for referral to a Medical Assessor.
Decision date: 7 January 2025 | Member: Karen Garner
Michelsen v State of New South Wales (Nepean Blue Mountains Local Health District) [2025] NSWPIC 5
Workers Compensation Act 1987; lump sum claim for the cervical spine relying on disease provisions in section 4(b); the respondent disputes the employment was the main contributing factor to the contraction or aggravation of disease; pursuant to section 4(b)(ii) the applicant’s employment with the respondent is the main contributing factor to the aggravation of cervical spine disease; the appropriate deemed date of injury is 25 March 2014 (being the date of first incapacity) and the Application to Resolve a Dispute is amended accordingly; Held – the lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the cervical spine and scarring from the deemed date of injury of 25 March 2014; the documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and the Reply.
Decision date: 7 January 2025 | Principal Member: Josephine Bamber
Bourke v Cabneemm Pty Ltd t/as Canberra Hire [2025] NSWPIC 6
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dispute as to whether the respondent had placed “injury” to the shoulders in issue under section 4 of the 1987 Act where the section 78 notices of the 1998 Act did not refer to the same; consideration of the requirements in section 79 of the 1998 Act; Held – the respondent had not disputed injury however, in any event, the applicant had established injury to his shoulders under section 4(a) of the 1987 Act; respondent disputed liability under section 60 of the 1987 Act for the proposed bilateral arthroscopic decompression and AC joint debridement and associated costs; the proposed bilateral arthroscopic decompression and acromioclavicular (AC) joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees are reasonably necessary treatment expenses as a result of injury sustained by the applicant on 9 November 2022 in the course of his employment with the respondent; pursuant to section 60 of the 1987 Act the respondent is liable to pay the costs of bilateral arthroscopic decompression and AC joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees; pursuant to section 60 of the 1987 Act the respondent agrees to pay the costs of bilateral C3/4, C4/5, C6/7 facet radiofrequency denervation and steroid injections as a result of injury on 9 November 2022; pursuant to section 60 of the 1987 Act the respondent is to pay for incurred treatment for the applicant’s bilateral shoulder injury and cervical spine treatment expenses on production of accounts, receipts and/or Medicare notice of charge.
Decision date: 7 January 2025 | Principal Member: Josephine Bamber
Motor Accidents Medical Review Panel Decisions
Review of certificate and reasons of Medical Assessor (MA) Fukui dated 9 May 2023 who found the claimant suffered a Major Depressive Disorder and who assessed a whole person impairment (WPI) of 17%; the accident giving rise to this claim occurred on 28 May 2018 when the claimant’s husband had been transporting their son to a class and on returning home was involved in a fatal accident; the claimant was informed by telephone by another son that her husband had been fatally injured in the accident and thereafter immediately suffered a grief reaction; the insurer submitted that the claimant was exaggerating her symptoms and had also not disclosed a pre-accident psychiatric history; on examination the claimant was questioned at length about any possible prior psychiatric history and the Panel concluded that the claimant did not have any prior psychiatric disorder notwithstanding prior life stressors; there were some inconsistencies detected in the claimant’s responses but when questioned, the Panel was satisfied about her answers; Held – certificate of MA Fukui revoked; Panel was satisfied that the claimant had suffered a Major Depressive Disorder and assessed whole person impairment at 13%.
Decision date: 27 November 2024 | Panel Members: Member Alexander Bolton, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v BMU [2024] NSWPICMP 874
Motor Accidents Compensation Act 1999 (MAC Act); accident on 3 December 2014; claimant injured; dispute related to gastrointestinal injury; insurer’s review application re permanent impairment; causation disputed; insurer alleges digestive condition not due to accident because claimant delayed treatment until 2022; permanent impairment; claimant re-examined; different clinical findings to original assessor; causation accepted as claimant’s doctors prescribed opioids to treat musculoskeletal injuries accepted as caused by accident; close association with opioids with gastrointestinal injuries; claimant sought treatment for gastrointestinal injury soon after accident; permanent impairment of anus; condition impacts adversely on claimant’s ADL causing Class I anal impairment 9% under Table 4 on page 10/243 of AMA 4; benefits of treatment; cost effective and easily available; surgery will assist rehabilitation and recovery; proposed surgery still appropriate despite different clinical findings; Held – accident caused injuries requiring treatment and permanent impairment; original certificate revoked; original combined impairment certificate revoked; new certificates issued; combined permanent impairment greater than 10%.
Decision date: 19 December 2024 | Panel Members: Member Terence O'Riain, Dr Christopher Oates, and Dr John Garvey | Injury module: Digestive System
Sam v QBE Insurance (Australia) Limited [2025] NSWPICMP 1
Motor Accident Injuries Act 2017; motor accident on 9 December 2019; claimant suffered various injuries and skin abrasions; the dispute related to whether the injury was a threshold injury; claimant re-examined; chronic pre-accident history of neck and back pain; claimant did not establish that the motor accident caused or aggravated discal pathology in neck or back; no basis to conclude the other injuries (other than skin injury) were not a threshold injury; decision of Supreme Court in Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi; binding precedent; Favelle Mort Ltd v Murray; skin abrasion to right forearm constitutes a non-threshold injury; Held – claimant suffered a skin abrasion which was not a threshold injury; original assessment revoked.
Decision date: 6 January 2025 | Panel Members: Principal Member John Harris, Dr Michael Couch, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, and Brain Injury
Brown v AAI Limited t/as GIO [2025] NSWPICMP 7
Motor Accidents Compensation Act 1999; physical injuries; review of Medical Assessment Certificate under section 63(4); whether the degree of permanent impairment exceeded 10%; claimant involved in a motor vehicle accident and alleged soft tissue injuries to the cervical spine and lumbar spine; Review Panel considered extensive pre-existing degenerative changes in both regions; no evidence of acute trauma or worsening of pre-existing conditions caused by the accident; whether post-accident symptoms and treatments were attributable to the accident; Held – cervical spine and lumbar spine injuries caused by the motor accident were limited to mild soft tissue injuries; no permanent impairment attributable to the accident; claimant’s whole person impairment assessed at 0%.
Decision date: 7 January 2025 | Panel Members: Member Bridie Nolan, Dr Sophia Lahz, and Dr Clive Kenna | Injury module: Spine
Dincer v QBE Insurance (Australia) Limited [2025] NSWPICMP 8
Review of decision of Medical Assessor (MA) Wijetunga dated 7 May 2024 finding 9% whole person impairment (WPI) for the claimant; claimant suffered injuries to his cervical spine, thoracic spine, lumbar spine and left shoulder in an accident which occurred on 9 April 2019; the claimant had a notable pre-accident history of low back pain and neck pain; the Panel was satisfied that there had been a significant aggravation of disability to his cervical spine as a result of the accident; the Panel assessed 5% WPI for the claimant’s cervical spine and 2% WPI for the left shoulder with a combined total of 7% WPI; certificate of MA Wijetunga revoked with new certificate of the Panel for 7% WPI.
Decision date: 7 January 2025 | Panel Members: Member Alexander Bolton, Dr Leslie Barnsley, and Dr Drew Dixon | Injury module: Spine and Upper Limb
Wali v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 9
Motor Accident Injuries Act 2017; psychological injury; review of Medical Assessment Certificate under section 7.23(1); whether adjustment disorder caused by motor accident resulted in permanent impairment exceeding 10%; claimant involved in a rear-end motor vehicle collision; initial physical injuries reported, with psychological symptoms emerging later, including feelings of frustration, anxiety, and social withdrawal; medical evidence reviewed, including history of familial conflicts and situational stressors; inconsistencies in claimant’s narrative and pre-existing stressors noted but found not to negate causation; Panel determined motor accident made a material contribution to claimant’s psychological injury; claimant’s impairment evaluated under psychiatric impairment rating scale (PIRS); median class value of 2 and aggregate score of 13 corresponded to 7% whole person impairment (WPI) plus 1% for the effects of treatment, being a total of 8% WPI; Held – motor accident caused an adjustment disorder resulting in a permanent impairment below the statutory threshold of 10% WPI.
Decision date: 7 January 2025 | Panel Members: Member Bridie Nolan, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural
Vo v QBE Insurance (Australia) Limited [2025] NSWPICMP 10
Motor Accident Injuries Act 2017; psychological injury; review of Medical Assessment Certificate under section 7.23(1); whether psychological symptoms caused by the motor accident gave rise to permanent impairment greater than 10% whole person impairment (WPI); claimant, a pedestrian struck by a vehicle, sustained an adjustment disorder caused by the motor accident, with anxiety related to crossing roads and concerns about physical recovery; no evidence of aggravated pre-existing PTSD or depressive disorder; psychological injury resolved, with no ongoing impairment attributable to the motor accident; Held – adjustment disorder caused by the motor accident did not result in permanent impairment; injury no longer amenable to a permanent impairment assessment; Medical Assessor’s findings partially revised.
Decision date: 7 January 2025 | Panel Members: Member Bridie Nolan, Dr Michael Hong, and Dr Glen Smith | Injury module: Mental and Behavioural
Shaooka v Allianz Australia Insurance Limited [2025] NSWPICMP 11
Motor Accident Injuries Act 2017 (MAI Act); classification of injuries under the MAI Act; determination of right shoulder and lumbar spine injuries; claimant involved in rear-end collision; pre-existing right shoulder condition including labral tear and rotator cuff tendinosis exacerbated by the accident; lumbar spine musculoligamentous strain without clinical signs of radiculopathy; MRI and MR arthrogram findings preferred over ultrasound; no evidence of supraspinatus tendon tear, only tendinosis; claimant’s assertion of full pre-accident work capacity contradicted by Centrelink medical certificate and pay records; exacerbation of pre-existing shoulder condition and lumbar spine injury deemed soft tissue injuries; Held – injuries caused by the motor accident are threshold injuries as defined under the MAI Act; Medical Assessor’s findings affirmed.
Decision date: 7 January 2025 | Panel Members: Member Bridie Nolan, Dr Peter Yu, and Dr Margaret Gibson | Injury module: Spine and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
BMY v Mullungeen Pty Ltd [2024] NSWPICMP 489
Workers Compensation Act 1987; primary and secondary psychological injury; application of section 65A; how impairment is to be calculated where there is a secondary psychological injury; Mercy Centre Lavington Ltd v Kiely & Ors and Mercy Connect Limited v Kiely considered; consideration of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); whether adequate reasons had been provided; Held – no requirement in the Guidelines or section 65A to conduct separate psychiatric impairment rating scale (PIRS) assessments; open to Medical Assessor to indicate a percentage contribution from primary and secondary injuries; adequate reasons provided; Medical Assessment Certificate confirmed.
Decision date: 24 July 2024 | Panel Members: Member Parnel McAdam, Dr Graham Blom, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Donhad Pty Ltd v Asbury [2025] NSWPICMP 4
Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in three respects namely, in his application of section 323, failed to consider available evidence and failed to provide adequate reasons; Held – Panel held error regarding section 323; apportionment also required; Medical Assessment Certificate revoked.
Decision date: 6 January 2025 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr James Bodel | Body system: Right Upper Extremity, Right Lower Extremity, and Left Lower Extremity,
Aitchison v Guardian Community Early Learning Centres Pty Ltd [2025] NSWPICMP 5
Psychological injury; appellant worker sought to admit additional evidence in the form of additional statements and alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under five of the psychiatric impairment rating scale (PIRS) categories; Appeal Panel declined to admit the additional statements; Held – error in two of the contested PIRS categories; Medical Assessment Certificate revoked.
Decision date: 6 January 2025 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr John Lam Po-Tang | Body system: Psychological/Psychiatric
Workers Compensation Act 1987; appeal by one of three employers after Medical Assessment Certificate (MAC) issued following the issue of a Certificate of Determination (COD) by a Senior Member, a successful appeal to Deputy President Wood, and a further COD being issued from which the referral was made; whether Medical Assessor (MA) entitled to ignore such determinations and the terms of the referral; whether MA erred in not applying the principles in Secretary, New South Wales Department of Education v Johnson (Johnson)to the question of apportionment; Held – referrals were binding; Skates v Hills Industries Ltd considered and applied; a fortiori determinations from the Commission on which the referral was based were binding; reliance on principles in Johnson misconceived; apportionment was provided by sections 22 and 22A; MAC revoked and a new certificate issued.
Decision date: 6 January 2025 | Panel Members: Member John Wynyard , Dr Todd Gothelf, and Dr James Bodel | Body system: Right Upper Extremity, Left Upper Extremity, and Cervical Spine
Luthra v Outlook (Aust.) Ltd [2025] NSWPICMP 12
Whether the Medical Assessor (MA) found that the appellant did not suffer a median nerve injury, which the parties agreed the appellant had suffered and which was the subject of the referral to the MA; Held – MA’s assessment was that the appellant had recovered from his median nerve injury, and not that the appellant did not suffer that injury; MA was consequently correct to assess that the appellant did not have any permanent impairment from that injury.
Decision date: 7 January 2025 | Panel Members: Member Marshal Douglas, Dr Drew Dixon, and Dr Gregory McGroder | Body system: Right Upper Extremity and Left Upper Extremity
Cooper v Young Mining Company NSW Pty t/as Causmag International [2025] NSWPICMP 13
Appeal against Medical Assessor’s assessment of permanent impairment on the basis that the Medical Assessor (MA) erred in failing to provide adequate reasoning and failing to have regard to imaging evidence; error found in that the Medical Assessor’s recorded examination findings were not sufficient to confirm the assessments made by him, and therefore the Appeal Panel could not be satisfied that his examination of the appellant was sufficiently thorough in order to enable him to provide a proper assessment of the appellant’s permanent impairment; his reasoning did not allow the appellant to comprehend why her permanent impairment was assessed at a certain level; error also found in that the Medical Assessor did not consider relevant and significant material, being imaging evidence; further medical examination conducted on behalf of the Appeal Panel by MA Roger Pillemer, and findings of MA Roger Pillemer adopted by the Appeal Panel and different to those of the original 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, Vitaz v Westform, Bojko v ICM Property Service Pty Ltd & Ors, Prasad v Workers Compensation Commission, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, Wentworth Community Housing Limited v Brennan, and Coca-Cola Europacific Partners API Pty Ltd v Pombinho considered; Medical Assessment Certificate revoked and new certificate issued.
Decision date: 7 January 2025 | Panel Members: Member Gaius Whiffin, Dr Roger Pillemer, and Dr Margaret Gibson | Body system: Right Upper Extremity, Left Upper Extremity, Cervical Spine, and Lumbar Spine
Coates v Metal Manufacturers Limited [2025] NSWPICMP 14
Workplace Injury Management and Workers Compensation Act 1998; section 323; deduction in an aggravation of disease case; appellant worked in heavy work for a period of 10 years; Medical Assessor (MA) erred in failing to identify at what point pre-existing condition existed; consideration of Coca-Cola Europacific Partners API Pty Ltd v Pombinho; whether the “starting point” of the deduction was appropriately assessed in the circumstances; Held – MA erred in deduction; basis for “starting point” of deduction unclear; assessment of permanent impairment revoked; Medical Assessment Certificate revoked.
Decision date: 7 January 2025 | Panel Members: Member Parnel McAdam, Dr Doron Sher, and Dr Tommasino Mastroianni | Body system: Right Upper Extremity and Left Upper Extremity
Motor Accidents Merit Review Decision
CAB v AAI Limited t/as GIO [2024] NSWPICMR 20
Motor Accident Injuries Act 2017; whether statutory benefits are payable under section 3.26; whether the claimant is entitled to be compensated for before and after school care for her daughter, being a loss of capacity to provide gratuitous domestic services; Allianz Australia Insurance Limited v Vella (No 1) considered; Bussenschutt v QBE considered and applied; for the claim under section 3.26, it is a precondition of section 3.26 that the claimant provided the services to those dependants before the motor accident; in relation to before and after school care the precondition in section 3.26 that the claimant must have provided the services that are the subject of the claim to her dependents before the accident is not met; Held – the claimant is not entitled to any statutory benefits under section 3.26.
Decision date: 24 July 2024 | Merit Reviewer: Stephen Boyd-Boland
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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