Legal Bulletin No. 196
This bulletin was issued on 31 January 2025
Issued 31 January 2025
Welcome to the one hundred and ninety sixth 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
Massoudi v Rose Truck Pty Ltd [2025] NSWPICPD 2
Death of company director who was a worker of the uninsured company – claim by dependants for lump sum death benefits under sections 25 and 26 of the Workers Compensation Act 1987 – consideration of sections 3(1A) and 4A of the Workers Compensation Act 1987 and section 4(2) of the Workplace Injury Management and Workers Compensation Act 1998 – whether dependants’ rights are separate and distinct rights under Part 3, Division 1 of the Workers Compensation Act 1987 having regard to s 3(1A) of the Workers Compensation Act 1987 and s 4(2) of the Workplace Injury Management and Workers Compensation Act 1998 – statutory interpretation – Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, and Moorabool and Central Highlands Power Alliance Inc v Minister for Energy and Resources [2024] VSCA 201 applied; Held – the Member’s Certificate of Determination dated 19 January 2024 is confirmed.
Decision date: 17 January 2025 | Before: Acting Deputy President Kylie Nomchong SC
Makdessi v Millennium Security Specialist Services Pty Ltd [2025] NSWPICPD 3
Section 11A of the Workers Compensation Act 1987 – reasonableness of action of the employer following instruction from third party shopping centre – whether there was a proper basis for the Member determining the reasonableness of the employer’s action in suspending the worker in response to the demand of the third party – Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 considered and applied; Held – the Member’s Certificate of Determination dated 27 February 2024 is revoked; I determine that the respondent’s defence under s 11A of the Workers Compensation Act 1987 fails; the matter is remitted for determination by an alternative Member of the Commission in accordance with these reasons.
Decision date: 20 January 2025 | Before: Acting Deputy President Geoffrey Parker SC
Holcim (Australia) Pty Ltd v Plain [2025] NSWPICPD 4
Factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 discussed and applied – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied – standard of proof – Briginshaw v Briginshaw [1938] HCA 34 discussed – cl 9 of Sch 3 to the Workers Compensation Act 1987 (the 1987 Act) “current work capacity” and “no current work capacity” – s 32A(1) of the 1987 Act “suitable employment”; Held – the Principal Member’s Certificate of Determination dated 18 January 2024 is confirmed.
Decision date: 20 January 2025 | Before: Deputy President Elizabeth Wood
Noble v Petuha [2025] NSWPICPD 5
‘Worker’ – intention to enter legal relations – application of Dietrich v Dare (1980) 54 ALJR 388; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; Held – the Certificate of Determination dated 23 February 2024 is revoked; the matter is remitted to a different non-presidential member to deal with any outstanding matters consistent with these reasons. I note these may include interest, funeral expenses and dependency.
Decision date: 23 January 2025 | Before: Deputy President Michael Snell
Motor Accidents non-Presidential Member Decisions
Lau v QBE Insurance (Australia) Limited [2024] NSWPIC 724
Motor Accident Injuries Act 2017; claim for statutory benefits; claimant requested painting and handyman services; insurer rejected request; claimant lodged application for medical assessment on basis painting and handyman services were treatment; proceedings referred to member for determination under schedule 2(3)(n) whether the services were “treatment and care” within the definition and whether the insurer was liable for this part of the claim; claimant seriously injured and could not do the work and paid commercial provider to do the work; both parties relied on clause 5.13 of the Guidelines and member found this did not apply; cases of Frost v NRMA, Suttie v QBE, BLI v Allianz and Haddad v Lifetime Care followed and applied; Member found painting and light installation services were not attendant care services, but cleaning services were a form of home maintenance or domestic services; Member found purpose of the services was to prepare the home for sale and was not treatment and care for the claimant; Held – painting and handyman services were not treatment and care and the expense was not a treatment and care expense and the insurer had no liability for it; costs awarded as per the Regulation $1,992 plus GST.
Decision date: 6 December 2024 | Member: Belinda Cassidy
Pertzel v Allianz Australia Insurance Limited [2024] NSWPIC 725
Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2022; application for damages; dismissal; best endeavours; guiding principle; claimant sustained injury in a motor vehicle accident on 4 June 2022; application for assessment of damages filed in Personal Injury Commission (Commission) on 22 October 2024; insurer sought dismissal of claim on basis claimant did not use “best endeavours” to settle claim before referred for assessment; claimant served evidence and on 23 August 2024 and 3 September 2024 invited insurer to participate in informal settlement ; insurer served section 6.22 offer under the MAI Act on 14 October 2024; claimant did not respond to section 6.22 offer before commencing proceedings; insurer sought dismissal of claim under section 7.32 of the MAI Act; Held – in circumstances claimant used “best endeavours” to settle claim; Commission required to give effect to guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings; decline to dismiss claim; listed for teleconference.
Decision date: 16 December 2024 | Member: Susan McTegg
AAI Limited t/as AAMI v Kumar [2024] NSWPIC 726
Motor Accident Injuries Act 2017; approval of settlement; non-economic loss; cervical epidural haematoma; low back; headache; section 6.23; Ms Kumar sustained injury in a motor vehicle accident on 22 February 2020; MRI cervical spine disclosed presence of anterior epidural fluid collection; no neurological deficits; no change shown on MRI scans; to be monitored by regular MRI scans; surgical intervention not required; damages for non-economic loss only; Held – settlement $300,000 non-economic loss approved.
Decision date: 18 December 2024 | Member: Susan McTegg
Santisteban v Allianz Australia Insurance Limited [2025] NSWPIC 14
Motor Accident Injuries Act 2017; Sections 3.11(1) and 3.28(1) miscellaneous claims assessment; where the accident caused wholly by the fault of the claimant; where claimant’s motor scooter and insured motorcycle came into contact as they travelled abreast in the same lane; differing versions of what occurred causing the vehicles to come into contact; claimant lost control of his motor scooter and crashed onto the surface of the motorway; circumstances of loss of control disputed; claimant sustained various injury and was transported by ambulance to hospital; insured rider may have obtained details of only independent witness; no statement obtained from that witness; claimant and insured rider each maintain that the other was wholly at fault; insurer concedes that it bears the onus of proving that the claimant was wholly at fault; insurer failed to discharge that onus; assessment on the papers; Held – sections 3.11(1) and 3.28(1) are concerned with causation of the accident that involve fault; the accident was not caused wholly by the fault of the claimant.
Decision date: 6 January 2025 | Member: Gary Victor Patterson
AAI Limited t/as AAMI v Whitehead [2025] NSWPIC 15
Motor Accident Injuries Act 2017; approval of settlement; section 6.23 claim for damages for non-economic loss and past and future economic loss; significant injury to the left knee requiring two surgical procedures; scarring; permanent impairment assessed at 12%; claimant was working as a landscaper at the time of the accident; claimant has returned to full-time employment in a different role as a sales merchandiser; damages for non-economic agreed at $330,000; buffer for future economic loss agreed at $300,000; Held – proposed settlement of $725,000 is approved.
Decision date: 15 January 2025 | Member: Maurice Castagnet
Workers Compensation non-Presidential Member Decisions
James v State of New South Wales (NSW Police Force) [2025] NSWPIC 16
Claim for lump sum compensation in respect of four separate physical injuries sustained to the worker’s right shoulder and four separate physical injuries sustained to the worker’s right knee; liability and aggregation not disputed, only degree of impairment and whether assessment was fully ascertainable; confusion in the pleadings and the referral resolved at a preliminary conference and claim remitted for referral to a Medical Assessor (MA); MA assessed the claim in accordance with the referral and not in accordance with the Certificate of Determination – Consent Orders; worker appealed the Medical Assessment Certificate rather than seek a reconsideration; delegate referred matter back to MA for further assessment; matter allocated to another MA as first MA had retired; the worker subsequently sought an uplift for complexity in accordance with Table 4 of Part 2 of Schedule 6 of the Workers Compensation Regulation 2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – uplift does not apply to lump sum claims where liability not in dispute; alternatively, submissions not persuasive; nothing intricate about the facts or the law; although there were errors on the part of the MAs, the matter no more complex than many of the matters that come before the Commission; application for uplift declined.
Decision date: 17 January 2025 | Principal Member: Glenn Capel
Sullivan v ER Curtain Pty Ltd [2025] NSWPIC 17
Workers Compensation Act 1987; claim for psychological injuries; claim for compensation pursuant to section 66; parties agree that all of the events that were causative of the applicant’s psychological injury occurred between 1986 and 1992; consideration of whether the applicant is able to proceed with his claim for lump sum compensation pursuant to section 66, having regard to clause 3(2) of part 18C of schedule 6 of the Act; Department of Environment, Climate Change & Water v J, SAS Trustee Corporation v Pearce, and State of New South Wales (Fire and Rescue NSW) v Dixon considered; Held – the effect of clause 3(2) of part 18C of schedule 6 of the Act is clear and the applicant in these proceedings is unable to claim lump sum compensation pursuant to section 66 as it has been agreed that all events causative of his psychological injury and impairment occurred prior to 1 July 2002; the proportion of his psychological impairment that relates to events before 1 January 2002 is 100%; there will be an award for the respondent in relation to the applicant’s claim in these proceedings pursuant to section 66.
Decision date: 17 January 2025 | Member: Gaius Whiffin
Motor Accidents Medical Review Panel Decisions
BNF v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 829
Motor Accidents Compensation Act 1999;claimant’s application for medical assessment and claimant’s application for review under section 63; claimant involved in motor accident in 2017 while still at school; claimant assessed as having whole person impairment (WPI) of 1% by Medical Assessor (MA) Newlyn. MA had assessed claimant as having post-traumatic stress disorder and somatic symptom disorder as well as post-natal depression and adjusted the WPI on account of that unrelated condition; MAs re-examined claimant and diagnosed post-traumatic stress disorder and somatic symptom disorder but found no evidence of depression; WPI assessed at 7%; Held – Certificate revoked (while outcome the same MA Newlyn had included his assessment of 1% on the certificate); no issue of principle.
Decision date: 5 December 2024 | Panel Members: Member Belinda Cassidy, Dr Wayne Mason, and Dr Gerald Chew | Injury module: Mental and Behavioural
Utteridge v AAI Limited t/as Suncorp Insurance [2024] NSWPICMP 885
Motor Accident Injuries Act 2017; claimant’s application for assessment of whole person impairment (WPI); Medical Assessor (MA) Kuru determined WPI at 2%; claimant’s application for review under section 7.26; claimant alleged injury to right knee (2%), thoracic endplate fracture at T8 (not caused) and sacral fracture (0% not caused); MA Kuru examined claimant and accessed radiology from hospital and referred to it in his decision on causation; claimant re-examined by one member of Panel; radiology considered; Panel satisfied claimant injuries right knee, thoracic spine and sacrum; insurer conceded 2% impairment to knee; Panel accepted thoracic fracture caused by accident, undisplaced and one level only – 5% WPI; multiple references to Guidelines and AMA 4 Guides referred to; sacral fractures provided for in pelvic injury part of Guides; clause 6.154 says that pelvic fractures must be assessed under pelvic injury (and therefore not as part of the lumbosacral spine); healed fracture without displacement but with residual signs gives WPI of 0%; Held – claimant’s WPI not greater than 10% but different degree to MA Kuru’s assessment therefore certificate revoked.
Decision date: 10 December 2024 | Panel Members: Member Belinda Cassidy, Dr David Gorman, and Dr Shane Moloney | Injury module: Spine and Lower Limb
AAI Limited t/as GIO v Djuric [2025] NSWPICMP 33
Motor Accidents Injuries Act 2017 (MAI Act); permanent impairment; review; insurer’s application; Certificate of Medical Assessor Herald dated 21 February 2024 assessed 17% whole person impairment; accident 25 November 20121 deducting 5% pre-accident permanent impairment for DRE II from DRE IV lumbar spine fusion revision; no reasons given for calculating 5%; claimant injured in 1986 (knee), 2009 (lumbar spine) and November 2020 (aggravation of lumbar spine and complaints of bilateral shoulder injuries); claimant re-examined; further submissions on calculating pre-injury impairment; lumbar fusion is multilevel structural compromise under Motor Accident Guidelines therefore DRE IV to be deducted from DRE IV; pre-accident shoulders’ impairment calculated by analogy at 2% for each shoulder; combined impairment certificate; different findings to original assessment; Held – different clinical findings to original assessment; Panel revoked and replaced original medical certificate and combined impairment certificate; permanent impairment not greater than 10%.
Decision date: 16 January 2024 | Panel Members: Member Terence O’Riain, Dr Shane Moloney, and Dr Michael Couch | Injury module: Spine, Upper Limb, Lower Limb, and Skin
Workers Compensation Medical Appeal Panel Decisions
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 DP 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 and a fortiori determination from 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 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
State of New South Wales (Western Sydney Local Health District) v Wright [2025] NSWPICMP 34
Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); matter remitted by Court of Appeal which concluded that consent orders precluded the worker relying on events at work after 5 December 2018; demonstrable error in Medical Assessment Certificate (MAC) as found by Court of Appeal; original Medical Assessor included work events after 5 December 2018 as causative of impairment; application to admit further evidence; evidence available to parties prior to original medical assessment; rejection of State’s submission that section 328(3) of the 1998 Act read as only applying to appeals under section 327(3)(b); reference to cases considering second limb of section 352(6) of the 1998 Act irrelevant as provision relates to different statutory test; worker’s submissions that excluded events after 5 December 2018 compensable under common law test of causation contrary to findings of Court of Appeal; worker’s submissions on further construction of consent orders where arguments not put to Court of Appeal; worker estopped from making these arguments as the result would be inconsistent with findings of Court of Appeal: Port of Melbourne Authority v Anshun Pty Ltd applied; worker’s argument that the four concepts in section 4(b)(ii) of the 1987 Act (aggravation, exacerbation, acceleration or deterioration) have different meanings rejected: Harkinson v Darking Island Stevedoring & Lighterage Co Ltd applied; analysis of nature of psychological injury; Medical Assessor/Panel required to make diagnosis of nature of psychological injury: clauses 11.4 – 11.6 of the Guidelines; natural history of worker’s psychological injury was consistent with a slow accumulative decline in functioning; finding of Major Depressive Disorder; appropriate method to exclude work events after 5 December 2018; finding that these were causation of impairment; need to assess impairment at time of assessment; impairment assessed by deducting a contribution to overall impairment for work events after 5 December 2018; assessment of psychiatric injury; worker re-examined by both Medical Assessors; psychiatric impairment rating scale (PIRS) assessed at 22% impairment with no section 323 of the 1998 Act deduction; deduction of one-third for work events after 5 December 2018; impairment assessed at 15%; Held – MAC revoked; claimant assessed at 15% permanent impairment caused by work injury.
Decision date: 16 January 2025 | Panel Members: Principal Member John Harris, Dr John Baker, and Dr Graham Blom | Body system: Psychological/Psychiatric
Action Botany Pty Ltd v Farage [2025] NSWPICMP 35
Appeal by employer from 30% whole person impairment for injuries to the left shoulder and scarring; whether Medical Assessor (MA) had properly applied Chapter 2.20 of the Guides and page 453 of AMA5 regarding the measurement of contralateral joints; Held – appeal misconceived; MA properly applied the guidelines: Medical Assessment Certificate confirmed.
Decision date: 16 January 2025 | Panel Members: Member John Wynyard, Dr Christopher Oates, and Dr Doron Sher | Body system: Left Upper Extremity and Scarring
Samsung SDS Global SCL Australia Pty Ltd v Prasad [2025] NSWPICMP 36
The appellant essentially submitted the Medical Assessor (MA) incorrectly assessed the respondent with class 3 moderate impairment with respect to travel and incorrectly made an adjustment of 1% whole person impairment (WPI) for the effects of treatment; the Appeal Panel accepted the MA erred in that he had incorrectly assessed the respondent with class 3 moderate impairment with respect to travel and incorrectly made an adjustment of 1% WPI for the effects of treatment; Held – Medical Assessment Certificate revoked.
Decision date: 16 January 2025 | Panel Members: Member Jacqueline Snell, Dr Michael Hong, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric
Eddy v State of New South Wales (NSW Police Force) [2025] NSWPICMP 37
Appeal against Medical Assessor’s (MA) assessment of impairment in relation to psychiatric and psychological disorders, on the basis that the MA erred in her assessment of the appellant with regard to the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel, social functioning, concentration persistence and pace, and employability; Glenn William Parker v Select Civil Pty Limited, Ferguson v State of New South Wales, 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, Jenkins v Ambulance Service of New South Wales, and Botha v Secretary, NSW Department of Customer Service considered; Held – the Appeal Panel finds error in relation to the assessments made with regard to the PIRS categories of concentration persistence and pace, and employability, but no error in relation to the assessments made with regard to the PIRS categories of social and recreational activities, travel, and social functioning; Medical Assessment Certificate revoked as a result, and a new Medical Assessment Certificate issued.
Decision date: 17 January 2025 | Panel Members: Member Gaius Whiffin, Dr John Lam-Po-Tang, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Hill v Citrus Group Pty Ltd [2025] NSWPICMP 38
Medical appeal; challenge to assessment under the psychiatric impairment rating scale (PIRS) categories of social and recreational activities and concentration, persistence and pace; whether Medical Assessor (MA) applied the correct criteria as set out in the Guidelines; whether the MA correctly characterised activities undertaken by the appellant per Ballas v Department of Education (State of NSW); Botha v Secretary, NSW Department of Customer Service, and Lancaster v Foxtel Management Pty Ltd considered; Held – MA did not err in assessment of social and recreational activities; MA did not err in Ballas sense; MA erred in assessment of concentration, persistence and pace; Medical Assessment Certificate revoked.
Decision date: 17 January 2025 | Panel Members: Member Parnel McAdam, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Beatty v Health Management & Administrative Solutions Pty Ltd [2025] NSWPICMP 39
Workplace Injury Management and Workers Compensation Act 1998; application of deductions to assessable whole person impairment (WPI) pursuant to section 323; the appellant suffered bilateral knee injuries in the course of his employment with the respondent; the matter was referred for medical assessment, at which time the Medical Assessor (MA) applied a 25% deduction for the left knee and a 50% deduction for the right knee; Held – MA erred in failing to provide adequate reasons for making the deductions pursuant to section; the evidence disclosed the appellant was asymptomatic in both knees before the injury at issue; the mere presence of osteoarthritis and mild degenerative changes in the joint spaces is not of itself sufficient reason to make a deduction: Southwell v Qantas Airways Limited; there were no reasons provided as to why, in the MA’s view, the preexisting pathology was the primary indicator for the left total knee replacement surgery; rather, the evidence disclosed the symptomology brought about by the injury was the primary indicator; in the circumstances, a deduction of 1/10th was appropriate for each affected body system; Medical Assessment Certificate revoked.
Decision date: 20 January 2025 | Panel Members: Member Cameron Burge, Dr Alan Home, and Dr James Bodel | Body system: Right Lower Extremity and Left Lower Extremity
Motor Accidents Merit Review Decision
Naderi v AAI Limited t/as GIO [2025] NSWPICMR 1
Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3 of the Act; meaning of pre-accident weekly earnings (PAWE); Schedule 1, clause 4; earnings through a company; company as separate legal personality; onus of proof; reliability of evidence; inconsistencies in evidence; Held – the reviewable decision is set aside.
Decision date: 14 January 2025 | Merit Reviewer: Katherine Ruschen
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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