Legal Bulletin No. 197

Issued 7 February 2025

Welcome to the one hundred and ninety seventh edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Supreme Court Decisions

Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11

CIVIL PROCEDURE – judgments and orders – where dispute whether injuries sustained in motor vehicle accident give rise to permanent impairment greater than 10% – order setting aside review of medical assessment by the Personal Injury Commission Motor Accidents Division – order remitting review of medical assessment to a differently constituted Review Panel.

Decision date: 4 February 2025 | Before: McNaughton J

Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19

TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff’s application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment.

ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act.

Decision date: 6 February 2025 | Before: Griffiths AJA

Presidential Member Decisions

Paterson v State of New South Wales (NSW Police Force) [2025] NSWPICPD 6

Psychological injury – whether the appellant’s injury arose out of the course of his employment, psychological injury predominantly caused by action taken by the respondent with respect to discipline, section 11A of the Workers Compensation Act 1987, Wang v State of New South Wales [2019] NSWCA 263 considered and applied; Held – the Certificate of Determination dated 26 February 2024 is confirmed; pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 time for the filing of this appeal is extended to 27 March 2024; the appellant is to pay the respondent’s cost of the appeal as agreed or assessed.

Decision date: 29 January 2025 | Before: President Judge Phillips

Infrabuild Trading Pty Ltd v Sihavong [2025] NSWPICPD 7

Sections 151DA(3) and (4) of the Workers Compensation Act 1987 considered an applied – Luke v McCarthy [2008] NSWWCCPD 123 and NSW Police Force v Fajloun [2024] NSWPICPD 77 considered and applied; Held – the Application to Strike Out the PFS is adjourned sine die; the applicant is granted liberty to restore this application upon the giving of seven days’ notice to the respondent and to the Commission; the matter is referred to the Division Head of the Personal Injury Commission’s Workers Compensation Division for the allocation of the matter for mediation at the

earliest available time; no order as to costs.

Decision date: 30 January 2025 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Blanco v Allianz Australia Insurance Limited [2024] NSWPIC 597

Motor Accident Injuries Act 2017 (MAI Act); claimant’s application for discretionary exemption from assessment under s 7.34(1)(b) of the MAI Act; complex liability issues and non-CTP parties; insurer consents; preliminary assessment of claim; Held – a court hearing is more likely to result in the just, quick and cost-effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommend exempting the claim; recommendation subsequently approved by the Division Head, as the President’s delegate.

Decision date: 25 October 2024 | Member: Terence O'Riain

Raymond v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 18

Motor Accident Injuries Act 2017; Personal Injury Commission Act 2020 (PIC Act); the claimant suffered injuries caused by a motor vehicle accident on 3 February 2022; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Review Panel found that the claimant suffered a non-threshold right knee injury; the insurer then served separate notices accepting that the claimant sustained a non-threshold injury for receiving ongoing statutory benefits and commencing a claim for damages; current review by claimant of finding that the claimant did not sustain an eye injury; Panel raised that this application for review should be dismissed; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; claimant’s submission that the insurer may seek a further application on the non-threshold finding of the right knee injury speculative and without evidentiary basis; reasons of Panel sound; insurer wholly admitted liability; no statutory power to withdraw admission; Smalley v Motor Accidents Authority of New South Wales; allowing review to proceed contrary to objects of the PIC Act; no medical dispute about the existence of a non-threshold injury; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious.

Decision date: 21 January 2025 | Principal Member: John Harris

Workers Compensation non-Presidential Member Decisions

Khan v Hitachi Energy Australia Pty Ltd [2025] NSWPIC 22

Workers Compensation Act 1987;claim for weekly payments for about 18 weeks and medical expenses for psychological injury; claim for weekly payments restricted by the provisions of section 52; respondent concedes the worker sustained injury in the course of his employment but relies on section 11A that the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect retrenchment and/or dismissal; consideration of Pirie v Franklins Ltd and Irwin v Director General of School Education; Held – the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to retrenchment and/or dismissal; award of weekly payments of compensation for closed period and the payment of the worker’s reasonably necessary medical treatment.

Decision date: 28 January 2025 | Member: John Isaksen

Kirk v Management & Training Corporation Pty Ltd [2025] NSWPIC 23

Workers Compensation Act 1987; dispute as to entitlement to weekly compensation pursuant to section 37; whether the applicant has incapacity for employment as a result of the agreed workplace injury in circumstances where he has returned to alternate full-time work; pursuant to section 37(2)(a) the respondent is to pay the applicant weekly compensation as follows: from 14 September 2023 to 30 September 2023 at the rate of $390.13 per week, from 1 October 2023 to 31 March 2024 at the rate of $430.32 per week, from 1 April 2024 to 13 July 2024 at the rate of $461.38 per week, and from 29 July 2024 to 15 September 2024 at the rate of $461.38 per week; the parties have liberty to apply in relation to the calculation of the average actual weekly earnings figure; Held – the respondent agrees to pay pursuant to section 60 the applicant’s claim for incurred treatment expenses up to the sum of $428.70 on production of accounts, receipts and/or Medicare Notice of Charge.

Decision date: 28 January 2025 | Principal Member: Josephine Bamber

Motor Accidents Medical Review Panel Decisions

Dougherty v Allianz Australia Insurance Limited [2025] NSWPICMP 40

Motor Accident Injuries Act 2017; medical dispute as to treatment and care, causation, reasonable and necessary, improving recovery; claimant attempted to cross the road and was struck forcefully by the insured SUV on her left-hand side, insured driver attempted to flee but was restrained by passers-by and subsequently charged; claimant was transported to St Vincent’s Hospital by ambulance; claimant sustained fractures to her pelvis, cervical spine, lumbar spine and her skull; claimant sustained numerous other injuries; insurer denied liability for ongoing carer services from 25 August 2023 (more than 3 years post-accident) as no longer caused by accident-related injuries; Medical Assessor Cameron certified that need for ongoing care not related to the accident, not reasonable and necessary, nor likely to improve recovery; issues as to causation and onus of proof; Held – Review Panel satisfied that claimant has a need for ongoing care services, after 25 August 2023, in relation to all of the injuries referred for assessment; Review Panel satisfied that such care is reasonable, necessary and likely to improve recovery of injured person; certificate revoked.

Decision date: 20 January 2025 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Sophia Lahz | Treatment Type: Domestic Assistance

Insurance Australia Limited t/as NRMA Insurance v Deering [2025] NSWPICMP 41

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 8 August 2023; threshold injury dispute; issues narrowed by Review Panel; Review Panel assessment on the papers; pre-existing lumbar spine complaints requiring chiropractic treatment; no relevant radiology before motor accident; whether annulus fissure at L4/5 disc was causally related to motor accident; Held – Medical Assessor Truskett's determination of non-threshold injuries affirmed; the Review Panel certifies that the injury referred for assessment and caused by the accident, namely, the lumbar spine injury, is not a threshold injury.

Decision date: 21 January 2025 | Panel Members: Member Jeremy Lum, Dr Margaret Gibson, and Dr Alan Home | Injury module: Spine, Upper Limb, and Lower Limb

Shiba v Allianz Australia Insurance Limited [2025] NSWPICMP 42

Claimant involved in a low-speed rear-end collision while stationary at traffic lights; reported cervical spine pain radiating to the right arm with radiculopathy (C6 nerve root), lumbar spine pain radiating to the left leg with radiculopathy (L5 nerve root), and right shoulder pain; radiological evidence revealed pre-existing degenerative changes in the cervical and lumbar spine, including disc protrusions and annular tears, with symptoms becoming symptomatic post-accident; biomechanical analysis suggested collision forces were insufficient to cause significant injury, but Panel found the motor accident materially aggravated pre-existing conditions, leading to persistent radicular symptoms and functional limitations; Held – cervical and lumbar spine injuries caused by the motor accident are non-threshold; right shoulder injury remains a threshold injury; motor accident caused permanent impairment exceeding 10% whole person impairment.

Decision date: 21 January 2025 | Panel Members: Member Bridie Nolan, Dr Michael Couch, and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Smith v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 43

Motor Accidents Compensation Act 1999; claimant involved in a low-speed multi-car collision while stationary at traffic lights; reported persistent neck pain and radicular symptoms following the accident; pre-existing degenerative changes at C5/6 and C6/7 were asymptomatic before the collision; post-accident symptoms progressively worsened, leading to cervical spine surgeries including total disc replacements at C6/7 in 2017 and C5/6 in 2018; Panel found the motor accident materially aggravated pre-existing conditions, rendering them symptomatic and necessitating surgical intervention; permanent impairment assessed as DRE Cervicothoracic Category IV, resulting in 25% whole person impairment (WPI); scarring assessed at 0% WPI; Held – motor accident caused symptomatic aggravation of pre-existing cervical spine conditions and resulted in permanent impairment exceeding 10% WPI.

Decision date: 22 January 2025 | Panel Members: Member Bridie Nolan, Dr Clive Kenna, and Dr Christopher Oates | Injury module: Spine and Minor Skin

Insurance Australia Limited t/as NRMA Insurance v Zammit [2025] NSWPICMP 44

Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; claimant has a past history of spinal complaints following two prior motor vehicle accidents; claimant continued to experience neck pain, in the period leading up to the subject accident; insurer wholly admitted liability for the claim; Medical Assessor Suman found post-traumatic stress disorder (PTSD) and 17% WPI utilising the psychiatric impairment rating scale; Review Panel found Persistent Response to Trauma with PTSD-like symptoms and Persistent Depressive Disorder with Persistent Major Depressive Episode; Review Panel assesses 19% WPI with slightly higher rating for Adaptation; Held – certificate revoked.

Decision date: 22 January 2025 | Panel Members: Member Gary Victor Patterson, Dr Samson Roberts, and Dr Gerald Chew | Injury module: Mental and Behavioural

Insurance Australia Limited t/as NRMA Insurance v Schuettpelz [2025] NSWPICMP 45

Motor Accident Injuries Act 2017; Motor Accident Compensation Regulation 2020 (the Regulation); 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 10% WPI.

Decision date: 22 January 2025 | Panel Members: Member Terence Stern OAM, Dr David McGrath, and Dr David Gorman | Injury module: Spine, Upper Limb, Lower Limb, and Minor Skin

Plummer v Allianz Australia Insurance Limited [2025] NSWPICMP 47

Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; the claimant was crossing on a green light at an intersection; insured vehicle struck the claimant, causing him to hit the bonnet on the left side of his body and fall to the road, onto the right side of his body (the accident); claimant was on his way to work; insurer admitted liability for the claim; pelvic fracture with muscle atrophy; healed un-displaced condylar fracture; scarring; Review Panel finds 8% WPI at time of assessment; Held – certificate (8% WPI) revoked as Review Panel’s findings made on basis of different examination findings and assessment methodology; no matters of principle.

Decision date: 24 January 2025 | Panel Members: Member Gary Victor Patterson, Dr Michael Couch, and Dr Mohammed Assem | Injury module: Lower Limb and Minor Skin

Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49

Motor Accident Injuries Act 2017; threshold injury; causation; right hand; removal of pre-accident metacarpal plate and screw; artificial aid; surgery; surgical scarring; the claimant suffered injury in a motor vehicle accident on 22 January 2023; Medical Assessor (MA) Kuru certified injuries to cervical spine, thoracic spine, lumbar spine, left shoulder, the chest, the abdomen, the right knee and the right hand were threshold injuries; claimant application for review; parties agreed to limit dispute to assessment of threshold injury to the right hand; whether injury to right hand caused by accident; whether surgery to remove pre-existing right little finger metacarpal plate and screws caused by accident; Held – increased lucency, pain and swelling established accident did cause or contribute to loosening of attachment of the plate/screws to bone; metacarpal plate and screws falls into definition of artificial aid; damage to aid which constitutes injury in accordance with section 1.6; not necessary to determine whether consequential surgery or subsequent surgical scarring could be person or bodily injury but note comments of Stern JA in Mandoukas v Allianz Australia Insurance Limited; alteration in bone structure of the fifth metacarpal bone caused by loosening of the screws and plate is a non-threshold injury; in the alternative injury by reason of damage to an aid is not a soft tissue injury and would constitute a non-threshold injury; certificate of MA Kuru revoked; finding of non-threshold injury in respect of right hand.

Decision date: 28 January 2025 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr David Gorman | Injury module: Spine, Upper Limb, Lower Limb, Digestive System, and Mental and Behavioural

Benderovska v AAI Limited t/as GIO [2025] NSWPICMP 50

Motor Accidents Compensation Act 1999; psychiatric injury; claimant hit by forklift while at work causing adjustment disorder of 4%; subsequent incident at work causing persistent depressive disorder with additional impairment or aggravated motor accident related impairment resulting in total impairment of 22%; whether subsequent impairment causally related to motor accident; State Government Insurance Commission v Oakley principles applied; Held – all impairment causally related to motor accident; Medical Assessment Certificate revoked.

Decision date: 28 January 2025 | Panel Members: Member Jeremy Lum, Dr Christopher Canaris, and Dr Matthew Jones | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Adam v Multiglaze Pty Ltd [2025] NSWPICMP 46

Appellant worker alleged error by Medical Assessor by failing to assess right lower extremity (knee) despite that body part being referred for assessment, and by failing to set out a proper explanation for assessment of scarring (TEMSKI); Held – error found; re-examination necessary; Medical Assessment Certificate revoked.

Decision date: 23 January 2025 | Panel Members: Member John Isaksen, Dr Roger Pillemer, and Dr Gregory McGroder | Body system: Lumbar Spine, Left Lower Extremity, Right Lower Extremity, and Scarring

Noble v Sitecore Australia Pty Ltd [2025] NSWPICMP 48

Psychiatric injury; appeal in respect of two of the psychiatric impairment rating scale (PIRS) categories (social functioning and concentration, persistence and pace); whether assessment by Medical Assessor was consistent with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Appeal Panel formed the view that the MA had failed to provide adequate reasons for rating Class 2 in the category of concentration, persistence and pace; Held – no error in assessment of social functioning; incorrect criteria and error in assessment of concentration, persistence and pace; Medical Assessment Certificate revoked.

Decision date: 24 January 2025 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Motor Accidents Merit Review Decision

Kozlov v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 2

Motor Accident Injuries Act 2017 (MAI Act); section 6.13(2); statutory weekly payments; earner; the claimant was injured in a motor vehicle accident on 1 March 2024; claimant provided payslips which purported to show he worked from 1 April 2023 to 30 June 2023 making him an earner having worked for a period of at least 13 weeks during the year immediately preceding the accident in accordance with schedule 1 clause 2 of the MAI Act; payslips and PAYG payment summary furnished by claimant contained discrepancies; insurer asked claimant to provide bank statements or other records to verify earnings; insurer determined it had insufficient information to determine whether the claimant was an earner for the purposes of the MAI Act; claimant commenced proceedings in Commission; claimant ultimately produced bank records which contained discrepancies; Direction for Production issued by Division Head to NAB and ANZ Bank; records produced by NAB not consistent with NAB records produced by claimant; purported ANZ Bank records produced by claimant not records produced by ANZ Bank; Held – claimant was not an earner for the purposes of the MAI Act; claimant has no entitlement to weekly payment of statutory benefits pursuant to MAI Act.

Decision date: 28 January 2025 | Merit Reviewer: Susan McTegg

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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