Legal Bulletin No. 198

Issued 14 February 2025

Welcome to the one hundred and ninety eigth 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 Decision

Khanna v Insurance Australia Ltd [2025] NSWSC 33

ADMINISTRATIVE LAW – judicial review – decisions of medical assessors referred to review panels – review panels issue certificates – applications for judicial review under s 69 of the Supreme Court Act 1970 – errors by review panels not clearly identified – no jurisdictional error – no error of law on the face of the record – application dismissed – no point of principle.

Decision date: 10 February 2025 | Before: Faulkner J

Presidential Member Decision

State of New South Wales (Fire and Rescue NSW) v Sinclair [2025] NSWPICPD 8

Imperfections in transcript of hearing – Toll Transport Pty Ltd t/as Global Logistics – TGL Grocery v Andersen [2024] NSWPICPD 64 – whether error in admission of statement evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – whether error in failing to determine injury – whether error in references to s 19A of the Workers Compensation Act 1987 when determining causation; Held – the Member’s Certificate of Determination dated 21 February 2024 is revoked; the matter is remitted to another non-presidential member for re-determination; costs of the appeal to follow the outcome of the re-determination.

Decision date: 5 February 2025 | Before: Acting Deputy President Paul Sweeney

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Wade [2025] NSWPIC 25

Motor Accident Injuries Act 2017; settlement approval; $310,000 non-economic loss only; 62-year-old retired teacher; approved under section 6.23(2)(b); insurer conceded entitlement to non-economic loss; injuries include compression fractures at T7,T8 and T12 with 30% loss of height, ongoing chronic back pain; psychological injuries; PTSD including travel anxiety, hypervigilance, low mood with improvement, recent treatment; Held – settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines version 9.3.

Decision date: 23 January 2025 | Member: Shana Radnan

Cester v Allianz Australia Insurance Limited [2025] NSWPIC 27

Motor Accident Injuries Act 2017 (MAI Act); the claimant was injured in a motor vehicle accident on 7 September 2021; the insurer wholly admitted liability for the claim; assessment of damages; claim for damages pursuant to section 7.36; economic loss damages for physical and psychological injury; division 4.2 of the MAI Act applied; past economic loss; Livingstone v Rawyards Coal Co applied; Medlin v State Government Insurance Commission applied; Husher v Husher applied; section 4.7 of the MAI Act applied; future economic loss; Nominal Defendant v Livaja applied; Held – damages for past and future economic loss assessed at $298,191.14; claimant’s costs assessed at $35,942.75 inclusive of GST.

Decision date: 30 January 2025 | Member: Terence Stern OAM

AAI Limited t/as AAMI v Backhouse [2025] NSWPIC 28

Motor Accident Injuries Act 2017; settlement approval; $85,000 economic losses only; 33-year-old teacher; approved under section 6.23(2)(b); injuries include fracture to left wrist and thumb well healed, scarring 2% whole person impairment; closed period past economic loss and small buffer for future; Held – settlement complied with clause 7.37 Motor Accident Injuries Guidelines version 9.3.

Decision date: 30 January 2025 | Member: Shana Radnan

AAI Limited t/as AAMI v Lozanov [2025] NSWPIC 31

Motor Accident Injuries Act 2017; settlement approval; $900,000 including non-economic loss, past and future economic losses; 68-year-old pedestrian; senior project officer; approved under section 6.23(2)(b); insurer conceded entitlement to non-economic loss; injuries included multiple fractures right leg, knee, ankle, toe, left ankle, right wrist and hand: soft tissue injuries to upper and lower back, shoulders, right arm, whiplash (neck) and psychological (PTSD); Held – settlement complies with clause 7.37 the Motor Accident Injuries Guidelines version 9.3.

Decision date: 3 February 2025 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Kari v David Jones Ltd [2025] NSWPIC 26

Personal Injury Commission 2020 (2020 Act); claim by worker for reconsideration of Medical Appeal Panel decision and Certificate of Determination (COD) dated 16 January 2016 and 19 February 2016 respectively; whether pursuant to clause 14 of Schedule 1 of the 2020 Act the applicant had an unexercised right in the form of the deterioration of her lumbar spine; whether subsequent COD permitting lumbar fusion which occurred prior to the PIC establishment date sufficient evidence of deterioration; whether discretion to permit reconsideration should be exercised; Held – deterioration concept examined; fusion procedure warranted 20-30% whole person impairment against 0% certified in 2016; deterioration established as an unexercised right; interests of justice principle applied in exercising discretion; observations on the effect of such a reconsideration on applicant’s rights, which applicant undertook not to pursue; COD of 19 February 2016 rescinded and matter referred to Medical Appeal Panel for reconsideration.

Decision date: 29 January 2025 | Member: John Wynyard

Carey v Frolad Pty Ltd ATF Tony White Albury Trust [2025] NSWPIC 29

Claim for medical expenses by way of insertion of spinal cord stimulator; injury not in issue; only question is reasonable necessity of proposed treatment; the applicant suffered an uncontested injury to his left upper extremity as a result of the nature and conditions of his employment with the respondent; following that injury he underwent a number of nerve conduction studies, physiotherapy, three rounds of nerve blocks and two rounds of nerve release surgery; the applicant seeks payment by the respondent for the costs of and incidental to a spinal cord stimulator trial and permanent insertion of a stimulator in the event the trial is successful; the respondent denies liability and asserts the proposed treatment is not reasonably necessary; Held – the applicant has the onus of proving the treatment is reasonably necessary, noting the overarching requirement that treatment will be considered reasonably necessary if the Commission finds it is preferable the worker should have the treatment than it be forborne: Bartolo v Western Sydney Area Health Service; the relevant criteria for establishing reasonable necessity are those set out in in Diab v NRMA Ltd; in this matter, there is no issue the applicant has undertaken a long and diverse course of treatment to little effect; his three treating specialists, his general practitioner and his IME A/Prof Boesel, all agree the applicant has exhausted alternative treatment options, and that the proposed treatment is reasonably necessary; the respondent’s IME is alone in stating the treatment is not reasonably necessary, and his reasoning for that opinion is contrary to the preponderance of the medical and lay evidence in the matter, accordingly it is not accepted; the proposed treatment is reasonably necessary; respondent to pay the costs of and incidental to the proposed treatment.

Decision date: 30 January 2025 | Member: Cameron Burge

Petronio v State of New South Wales (Northern NSW Local Health District) [2025] NSWPIC 32

Claim for weekly compensation as a result of alleged psychological injury and functional neurological disorder as a result of events in the workplace; extensive psychological history; AV v AW; Kooragang Cement Ltd v Bates; no evidence of psychological history between meeting and onset of functional neurological disorder; the distress suffered by the applicant led to the development of functional neurological disorder; Held – award for the applicant for weekly compensation.

Decision date: 3 February 2025 | Member: Catherine McDonald

NSW Trustee and Guardian v Container Terminals Australia Ltd [2025] NSWPIC 33

Claim by executor of worker’s estate for lump sum death benefit, funeral expenses and interest; worker had accepted skin cancer injury; multiple causes of death recorded on death certificate; respondent disputed that the worker’s death resulted from accepted injury; respondent disputed claim for interest; consideration of Kooragang Cement Pty Ltd v Bates, Strong v Woolworths Ltd, Bonnington Castings Ltd v Wardlaw, Amaca Pty Ltd v Ellis, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Murphy v Allity Management Services Pty Ltd, Sutherland Shire Council v Baltica General Insurance Co Ltd, Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Held – award for applicant in respect of lump sum death benefit and funeral expenses; award of interest from date claim was duly made at a rate 2% above the Reserve Bank cash rate.

Decision date: 4 February 2025 | Senior Member: Kerry Haddock

BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34

Workers Compensation Act 1987; worker suffered injury in 2020 from fall from ladder; paid 173 weeks of compensation; dispute concerning nature of injuries sustained and ongoing effect of injuries; Commission not required to determine precise diagnosis of psychological condition: BFZ v Inner West Council and Wright v State of NSW applied; adverse credit findings based on misrepresentation in tax return and evidence, inconsistent histories to doctors; absence of evidence supporting ongoing effect of physical injuries; multiple doctors supported finding of somatic pain disorder caused by work injury; applicant did not establish no current work capacity; applicant had current work capacity in sedentary employment for a significant and majority of full-time hours; applicant’s entitlement to weekly compensation under section 38(3); section 38(3)(c) – discussion of principles; Roberts v University of Sydney applied; applicant did not establish that he is incapable of working additional hours that would increase earnings; no order for weekly compensation; Held – applicant entitled to general order under section 60 related to finding of ongoing psychological condition.

Decision date: 5 February 2025 | Principal Member: John Harris

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as AAMI v Hassan [2025] NSWPICMP 52

Review of certificate and reasons of Medical Assessor Nagesh dated 7 August 2023 who found the claimant had suffered a post-traumatic stress disorder and major depressive disorder and assessed whole person impairment (WPI) at 14% after deducting one percent for pre-existing impairment; claimant involved in a motor vehicle accident on 28 November 2017 having previously been involved in another accident on 6 May 2011 with similar psychiatric disabilities arising from both accidents; between 2018 and 2022 the claimant had stress and anxiety brought about by being homeless from a difficult marital separation and caring for his son who suffered from schizophrenia and occasional violence; Panel concluded that the effect of the 2011 accident on the claimant’s psychiatric condition had ceased approximately eight months prior to the accident and the claimant’s condition post-accident in 2017 was due to that accident; the Panel found that following the accident the claimant developed Somatic Symptom Disorder and Persistent Depressive Disorder; the claimant was assessed as having a WPI of 7%; Held – certificate of Medical Assessor Nagesh revoked.

Decision date: 30 January 2025 | Panel Members: Member Alexander Bolton, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Kairouz v Allianz Australia Insurance Limited [2025] NSWPICMP 54

Review of medical assessment; whole person impairment (WPI); major depressive disorder with anxious distress; history of hypertension, diabetes, partial hearing loss; cervical spine revealed underlying but previously diagnosed cervical spondylosis; ongoing neck and shoulder pain; examination revealed no neurological deficits; injuries to cervical spine, right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, right hand, left hand, right knee; soft tissue injuries to multiple regions; background of well designated osteoarthritic changes confirmed by radiologically; Held – WPI 0%.

Decision date: 31 January 2025 | Panel Members: Member Hugh Macken, Dr Clive Kenna, and Dr Drew Dixon | Injury module: Spine, Upper Limb, and Lower Limb

Meksass v Allianz Australia Insurance Limited [2025] NSWPICMP 57

Threshold injury; confirmed certificate; requirement for re-examination; stated no previous injuries; prior motor vehicle accident; relevant treatment following the motor vehicle accident; no further treatment to neck, back, right knee, delay of onset of symptoms; pre-existing condition arising from general wear and tear; no immediate onset of knee symptoms; mechanism of injury absent in context of subject accident; established osteoarthritis with chondromalacia; Held – new certificate issued.

Decision date: 3 February 2025 | Panel Members: Member Hugh Macken, Dr Christopher Oates, and Dr Shane Moloney | Injury module: Spine and Lower Limb

Antonio v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 60

Motor Accident Injuries Act 2017; motor accident March 2019; Medical Assessor (MA) Cameron determined whole person impairment at 6%; claimant’s application for review under section 7.26; claimant riding motorcycle hit from behind and fell; claimant alleged injuries to his head (with brain injury), cervical, thoracic and lumbar spine, left ankle, right upper limb (shoulder, forearm and hand/finger) plus scarring; claimant had anaphylactic reaction to anaesthetic administered for right shoulder accident related surgery and alleged dizziness developed or worsened after this; Panel satisfied claimant may have injured his head, developed a functional neurological disorder (FND) and injured his cervical and lumbar spine; Panel satisfied claimant injured his left ankle and right shoulder due to the mechanics of the fall and that the loss of sensation at the right forearm was related to the accident; Panel not satisfied any finger or hand injury occurred; re-examination conducted by MA Lahz; Held – while claimant may have injured his head, there was no evidence that would enable the Panel to assess an impairment due to head injury; the FND did not attract an impairment under the AMA 4 Guides or Guidelines and no objective evidence of equilibrium impairment; spinal impairment 0%; right shoulder range of motion assessed at 2% and nerve damage in forearm at 1%, no assessable impairment in any other part of the body and arthroscopic portal scars assessed at 0%; while outcome the same, impairment percentage differed therefore certificate of MA Cameron revoked.

Decision date: 4 February 2025 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, Nervous System (Neurological), and Minor Skin

Eterna v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 61

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor; claimant injured in motor vehicle accident in 2022; on 21 May 2024 MA Wijetunga determined WPI of 17%; review of medical assessment; Held – Panel revoked certificate of MA; substituted determination of 5% WPI.

Decision date: 4 February 2025 | Panel Members: Member Terence Stern OAM, Dr Mohammed Assem, and Dr Thomas Rosenthal | Injury module: Mental and Behavioural, Spine, Upper Limb, and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

Kids @ Play Pty Ltd v Mahir [2025] NSWPICMP 51

Workplace Injury Management and Workers Compensation Act 1998; assessment of lumbar spine, left lower extremity, right lower extremity and scarring; appellant submitted that Medical Assessor (MA) failed to consider the evidence before him and make a deduction pursuant to section 323 for a pre-existing condition in the right knee, made an incorrect assessment of the lumbar spine and erred in assessing sensory loss in the left upper extremity; Appeal Panel satisfied that MA had considered the evidence before him and found no error in not making a deduction pursuant to section 323 for a pre-existing condition in the right knee and no error in assessment of the lumbar spine and left upper extremity; Held – MAC confirmed.

Decision date: 29 January 2025 | Panel Members: Member Carolyn Rimmer, Dr James Bodel, and Dr Andrew Porteous | Body system: Right Lower Extremity, Left Upper Extremity, Lumbar spine, and Scarring

Everard v State of New South Wales (NSW Police Force) [2025] NSWPICMP 53

Whether Medical Assessor’s (MA) ratings of the appellant’s impairment in self-care and personal hygiene and concentration persistence and pace are correct; Appeal Panel found that the MA’s rating of the appellant’s impairment in self-care and personal hygiene was correct but his rating of the appellant’s impairment in concentration persistence and pace involved error; Held – Medical Assessment Certificate revoked.

Decision date: 30 January 2025 | Panel Members: Membre Marshal Douglas, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Hallam v Woolworths Group Ltd [2025] NSWPICMP 56

Appellant appealed against finding of Medical Assessor (MA) that she did not have complex regional pain syndrome (CRPS), and therefore the MA made no assessment of whole person impairment (WPI) with respect to CRPS; and asserted error in MA’s assessment of WPI with respect to injury to left lower extremity; application by appellant to rely on fresh evidence, being statement commenting on MA’s examination, refused; consideration of Lukacevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Limited and Ors, Pitsonis v Registrar of the Workers Compensation Commission and Anor, Wingfoot Australia Partners Pty Ltd v Kocak, Campbelltown City Council v Vegan & Ors, State of New South Wales (NSW Department of Education) v Kaur, Skates v Hills Industries Ltd; Held – MA did not err in failing to assess CRPS; MA erred in assessing WPI as a result of injury to left lower extremity; error corrected by Panel; Medical Assessment Certificate revoked and fresh certificate issued.

Decision date: 31 January 2025 | Panel Members: Senior Member Kerry Haddock, Dr Drew Dixon, and Dr Andrew Porteous | Body system: Left Lower Extremity and CRPS

Edmen Community Staffing Solutions Pty Ltd v McAuley [2025] NSWPICMP 58

Workplace Injury Management and Workers Compensation Act 1998; application of section 323 deduction for preexisting psychological condition; whether MA erred in manner in which they assessed the relevant deduction; the respondent worker suffered an accepted psychological injury in the course of his employment against a background of pre-existing post-traumatic stress disorder; the MA determined the degree of the pre-existing impairment was difficult or costly to determine, and applied section 323(2) in assessing a 10% deduction; the overall impairment as assessed was not in dispute; the appellant submits the MA erred in failing to assess the preexisting impairment in relation to each of the permanent impairment rating scale (PIRS) categories and deducting that impairment from the overall impairment found on assessment: Quintiliani-Johns v Secretary, Department of Education (Quintiliani-Johns) discussed; Held – the MA did not err in the formulation of the section 323 deduction; once the MA determined in their clinical judgment that the degree of pre-existing impairment was difficult or expensive to determine, they were not required to embark on the exercise required by the decision in Quintiliani-Johns and to assess the effect of the pre-existing impairment on each of the PIRS categories; Medical Assessment Certificate confirmed.

Decision date: 3 February 2025 | Panel Members: Member Cameron Burge, Dr John Baker, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Donhad Pty Ltd v Asbury [2025] NSWPICMP 62

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; Panel held error regarding section 323; apportionment also required; Held – Medical Assessment Certificate revoked.

Decision date: 4 February 2025 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr James Bodel | Body system: Right Lower Extremity and Left Lower Extremity

Trethewey v State of New South Wales (NSW Police Force) [2025] NSWPICMP 63

Psychiatric injury; appeal in respect of two of the permanent impairment rating scale categories (self-care and personal hygiene and employability); Appeal Panel formed the view that the Medical Assessor (MA) took into account an irrelevant consideration in assessment of self-care and personal hygiene but Appeal Panel made same assessment in that category as made by the MA; Appeal Panel satisfied that MA failed to provide adequate reasons to support a Class 4 rating for employability; Held – Medical Assessment Certificate revoked.

Decision date: 4 February 2025 | Panel Members: Member Carolyn Rimmer, Dr John Baker, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

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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