Legal Bulletin No. 199

Issued 21 February 2025

Welcome to the one hundred and ninety ninth 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 Decision

Retail Ready Operations Australia Pty Ltd v Booth [2025] NSWPICPD 10

Workers Compensation Act 1987; perception of events; Attorney General’s Department v K [2010] NSWWCCPD 76 applied; requirement for medical evidence in determining the main contributing factor to the injury; Hamad v Q Catering Limited [2017] NSWWCCPD 6 applied; burden of proof Nguyen v Cosmopolitan Homes [2008] NSWCA 246 discussed; whether reasoning illogical; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 discussed; arbitration is not a dress rehearsal Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68; Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 cited; Held – if necessary, leave to appeal the Member’s order remitting the respondent’s claim for whole person impairment pursuant to section 66 to the President for referral to a Medical Assessor is granted; the Member’s amended Certificate of Determination dated 4 March 2024 is confirmed.

Decision date: 11 February 2025 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as GIO v Roach [2025] NSWPIC 35

Motor Accident Injuries Act 2017; settlement approval; $55,000 economic losses only; 24-year-old mechanic; approved under section 6.23(2)(b); lacerations to liver and spleen now healed; right shoulder soft-tissue injury also healed; 0% WPI; closed period past economic loss and small buffer for future; Held – settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines version 9.3.

Decision date: 3 February 2025 | Member: Shana Radnan

Allianz Australia Insurance Limited v Movahed [2025] NSWPIC 37

Motor Accident Injuries Act 2017; approval of settlement of $130,000 under section 6.23; claimant self-represented; claimant sustained injury as a result of the motor vehicle accident; liability admitted by insurer; past and future damages for economic loss awarded; Held – settlement of $130,000 approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 5 February 2025 | Member: Terence Stern OAM

Insurance Australia Limited t/as NRMA Insurance v Sturge [2025] NSWPIC 42

Motor Accident Injuries Act 2017; settlement approval; motor vehicle accident; T12 compression fracture; non-economic loss; economic loss; section 6.23; liability admitted; Held – settlement approved in the sum of $447,706.19; settlement within the range of likely potential damages assessment.

Decision date: 11 February 2025 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Dous v Blacktown City Council [2025] NSWPIC 24

Workers Compensation Act 1987; applicant was employed by the respondent in a childcare centre working as a cook; applicant alleged a psychological injury as a consequence of being verbally abused and attacked by a parent of children at the childcare centre and as a consequence of her subsequent treatment by the respondent; the respondent denied liability on the basis that no injury was sustained (section 4), that employment was not a substantial contributing factor (section 9A), that if the applicant had sustained a psychological injury it was as a consequence of reasonable action taken or proposed to be taken with respect to transfer (section 11A), that the applicant was not incapacitated as claimed (section 33), and that there was no entitlement to payment of medical and related expenses (section 60); a further issue raised at hearing was that as the applicant ceased work on 15 March 2024 and was being paid weekly compensation in respect of a separate physical injury from that date to the present date, there was an issue as to whether any award of weekly compensation would involve payment of dual benefits and accordingly whether the discretion under section 46 should be exercised to reduce any award of weekly compensation; Held – the applicant had suffered a disease injury within the meaning of section 4(b)(i) being a primary psychological injury; the applicant’s employment was the main contributing factor to the disease; the deemed date of injury was 15 March 2024 (also being the date from which payments of weekly compensation for the separate physical injury were being paid); the applicant has had no current work capacity from the deemed date of injury to the present date as a consequence of the primary psychological injury; the applicant has suffered two injuries resulting in one incapacity; respondent ordered to pay weekly compensation pursuant to section 37 from 26 July 2024 to date and continuing on the basis of the applicant having no current work capacity; pursuant to section 46 the weekly compensation payable to the applicant is to be reduced by the amounts already paid or being paid in respect of the physical injury; respondent ordered to pay the applicant’s section 60 expenses.

Decision date: 9 January 2025 | Member: Michael Moore

Verma v Transit Systems West Services Pty Ltd [2025] NSWPIC 38

Workers Compensation Act 1987; disputed injuries to right hip and lumbar spine, claim for weekly payments and medical expenses; Held – the applicant sustained an aggravation of his right hip disease and a lumbar spine injury on 26 February 2024; the respondent is to pay weekly benefits compensation and reasonably necessary medical expenses.

Decision date: 5 February 2025 | Member: Fiona Seaton

Attard v Planet Motor Cycles Pty Ltd [2025] NSWPIC 39

Workers Compensation Act 1987; medical expenses; claim for cost of proposed right hip surgery; respondent alleges no work injury to affected body system and that the requirement for medically necessary surgery is not as a result of any injury; Held – the nature and conditions of the applicant’s employment as a plumber caused an injury in the nature of a disease process to his right hip; section 4(b)(i); the proposed surgery is reasonably necessary as a result of the applicant’s injury; the respondent is to pay the costs of and incidental to the proposed surgery.

Decision date: 5 February 2025 | Member: Cameron Burge

Gordon v State of New South Wales (NSW Police Force) [2025] NSWPIC 40

Whether the applicant suffered injuries to the bilateral upper and lower limbs in the course of his employment as a police officer; gaps and inconsistencies in the medical evidence; the value of contemporaneous evidence; the fallibility of memory; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Makita (Australia) Pty Ltd v Sprowles; Watson v Foxman; Held – award for the respondent for claims relating to the upper and lower limbs; matter referred to a Medical Assessor for assessment of whole person impairment for accepted conditions of cervical and lumbar spine.

Decision date: 7 February 2025 | Member: Diana Benk

Brown v Trinity Retail Pty Ltd [2025] NSWPIC 41

Workers Compensation Act 1987; permanent impairment claim; accepted left shoulder and neck injuries; disputed left carpal tunnel syndrome; Held – applicant sustained consequential carpal tunnel syndrome; matter remitted to President for referral to Medical Assessor for assessment of cervical spine, left upper extremity (shoulder and sensory loss-carpal tunnel syndrome) and scarring (TEMSKI).

Decision date: 10 February 2025 | Member: Fiona Seaton

West v Tox Free Australia Pty Ltd & Ors [2025] NSWPIC 43

Death of worker; orders previously made in relation to apportionment of lump sum death benefit; disputed claim for interest by applicant, second respondent, and third respondent; consideration of Haidary v Wandella 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 of interest on lump sum awarded to applicant, second respondent, and third respondent, from date that particulars of dependency were provided, at a rate that is 2% above Reserve Bank of Australia cash rate.

Decision date: 11 February 2025 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Rim v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 64

Claimant involved in a multi-vehicle collision while stationary on the M4 motorway; reported injuries to the cervical spine, right shoulder, right hand, lumbar spine, and right foot; claimant had a documented history of a workplace injury in 2020 affecting the neck and right shoulder; Review Panel found no evidence that the motor accident caused or materially aggravated the claimant’s pre-existing conditions; no radiological or clinical findings supporting structural changes attributable to the motor accident; lumbar spine symptoms inconsistent with radiculopathy and more likely related to degenerative changes; right hand and right foot complaints lacked objective verification; Held – motor accident did not cause or aggravate the claimed injuries; Medical Assessment Certificate confirmed.

Decision date: 5 February 2025 | Panel Members: Member Bridie Nolan, Dr Christopher Oates, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb

QBE Insurance (Australia) Limited v Turner [2025] NSWPICMP 66

Motor Accident Injuries Act 2017; claimant involved in motor accident on 6 June 2019; claimant fell off his motor cycle when trying to avoid a collision with the insured vehicle; where the claimant was observed to roll and tumble on the roadway for about 20 metres; whether injuries to lower back and neck were caused by the accident; fracture of the right humerus; fracture of the left wrist; injuries to right knee, and chest; re-examination; assessment of permanent impairment; where the Review Panel assessed a higher degree of permanent impairment (18%) than the original assessment (12%); Held – original assessment of 12% revoked and replacement certificate issued.

Decision date: 6 February 2025 | Panel Members: Member Maurice Castagnet, Dr Michael Couch, and Dr Drew Dixon | Injury module: Spine, Upper Limb, Lower Limb, and Skin

QBE Insurance (Australia) Limited v Lorenzotti [2025] NSWPICMP 67

Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; wrist; tenosynovitis; cervical spine; thoracic spine; shoulders; both arms; medical review of certificate of Medical Assessor (MA) Woo; the claimant suffered injury in a motor vehicle accident on 18 December 2020; the dispute related to the assessment of WPI of cervical spine, thoracic spine, right wrist, both shoulders and both arms; MA Woo assessed 5% WPI for injury to cervical spine; 5% WPI for injury to thoracic spine; and 3% WPI for injury to right wrist; on examination injuries to both shoulders resulting from referred pain from cervical spine in accordance with Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and assessed at 1% WPI; cervical spine assessed as DRE category 1 – 5% WPI; thoracic spine assessed as DRE category 1 – 0% WPI; de Quervain’s tenosynovitis in right wrist assessed at 3% WPI; no frank injury to the arms; Held – certificate of MA Woo revoked and certified injures caused by accident gave rise to 9% WPI.

Decision date: 6 February 2025 | Panel Members: Member Susan McTegg, Dr Les Barnsley, and Dr Drew Dixon | Injury module: Spine and Upper Limb

Fear v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 68

Motor Accident Injuries Act 2017; application for medical assessment of WPI; claimant’s application for review under section 7.26; claimant injured in accident on 12 November 2019 and alleged injuries to her neck and both shoulders; issue of causation and apportionment regarding shoulders; claimant had pre-accident treatment and scans for left shoulder issues in the years before the accident; post accident claimant complained of neck and right shoulder pain and right shoulder was investigated; it was not until later that left shoulder complaints were made and two years before left shoulder was scanned; Panel not satisfied claimant injured her left shoulder in the accident but satisfied injuries to right shoulder and neck occurred; Held – neck impairment assessed as DRE I (0%), right shoulder impairment assessed as 5%; no evidence of any pre-existing symptomatic impairment to the right shoulder therefore no deduction; certificate of MA Nair revoked although no change in the ultimate outcome; no issue of principle.

Decision date: 6 February 2025 | Panel Members: Member Belinda Cassidy, Dr Les Barnsley, and Dr Margaret Gibson | Injury module: Mental and Behavioural, Spine, and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v BON [2025] NSWPICMP 69

Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); the claimant suffered injury in a motor accident on 10 November 2016; the dispute related to the assessment of whole person impairment (WPI) of the abdomen, and anterior caecal perforation requiring surgery; Medical Assessor (MA) found no colonic impairment but found claimant had symptoms consistent with anterior cutaneous nerve entrapment over T10 to L1 distribution of the anterior abdomen which he assessed under tables 11 and 13 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) which relate to upper extremity functions; Held – on examination claimant denied any abdominal pains or sensory symptoms over the abdomen; no findings to suggest neuropathy of any anterior cutaneous nerves over the abdomen and no impairment of activities of daily living; anterior caecal perforation assessed under table 3 of the AMA 4 Guides; no signs and symptoms of colonic disease; no limitation of activities of daily living as a result of injury; MAC revoked; claimant sustained 0% WPI as a result of anterior caecal perforation requiring surgery.

Decision date: 7 February 2025 | Panel Members: Member Susan McTegg, Dr John Carter, and Dr Margaret Gibson | Injury module: Digestive System

Barsi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 70

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant suffered psychological/psychiatric injury when she was informed that her son had been killed in a motor vehicle accident on 8 August 2022; claimant suffers from prolonged grief disorder; on 19 December 2023 MA Fukui determined WPI of 8%; review of medical assessment; Held – Panel revoked certificate of MA; substituted determination of 13% WPI.

Decision date: 7 February 2025 | Panel Members: Member Terence Stern OAM, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural

Khan v AAI Limited t/as GIO [2025] NSWPICMP 73

Motor Accident Injuries Act 2017; review of medical assessment of single Medical Assessor (MA); whether injuries are threshold injuries; psychiatric injury suffered following motor accident of 19 March 2021; rear-end collision; allegation of post-traumatic stress disorder; insurer submit that the diagnosis did not set out necessary diagnostic criteria; original MA found psychological injury of adjustment disorder is a threshold injury; after clinical examination Review Panel diagnosed a specific phobia (driving), and persistent depressive disorder; Held –Certificate revoked.

Decision date: 10 February 2025 | Panel Members: Member Elizabeth Medland, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural

Jahangiri v Allianz Australia Insurance Limited [2025] NSWPICMP 74

Review all certificate and reasons of Medical Assessor (MA) Wong dated 29 April 2024 who found the claimant had a whole person impairment (WPI) of 4% and when combined with an assessment of MA Curtin of 1% WPI gave a combined WPI certificate of 5%; claimant injured in head-on collision on 5 February 2022 while the insured car was being pursued by the police; the claimant injured his cervical spine, lumbar spine, left shoulder, with undisplaced right inferior pubic ramus fracture and an open fracture of his left medial patella; the evidence verified an expected, sudden and forceful impact; Panel satisfied that the injuries suffered by the claimant were causally related to the accident; Held – the Panel revoked the certificate of MA Wong and found a total 10% WPI which combined with the certificate of MA Curtin of 1% gave a total WPI of 11%.

Decision date: 10 February 2025 | Panel Members: Member Alexander Bolton, Dr Christopher Oates, and Dr Leslie Barnsley | Injury module: Spine, Upper Limb, and Lower Limb

Bogdanovski v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 75

Motor Accident Injuries Act 2017; motor accident on 12 June 2021; claimant suffered aggravation of chronic hip condition and other injuries; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; chronic pre-accident history of left hip and right knee pain; previous prognosis that claimant would eventually come to surgery; complaints of increased left hip pain following motor accident supported by contemporaneous complaints; claimant underwent left hip replacement within 12 months of motor accident; Held – finding that the motor accident brought the surgery forward; discussion of causal test: AAI Ltd v Phillips and Secretary, and New South Wales Department of Education v Johnson referred to; deduction of left hip due to pre-existing severe cartilage thinning under clause 6.131 of the Motor Accident Guidelines; left elbow, left shoulder and scarring assessed; no relevant principles in assessment.

Decision date: 11 February 2025 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr David Gorman | Injury module: Upper Limb, Lower Limb, and Skin

Jodi-Maree Ola v AAI Limited t/as GIO [2025] NSWPICMP 76

Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical injury; Medical Assessor (MA) Kuru considered the injuries to the cervical spine, left shoulder, and right shoulder; MA Kuru found that the injury to the cervical spine was caused by the motor accident and was a threshold injury; re-examination by Medical Review Panel (Panel); Panel found that the injuries to the cervical spine, right shoulder, and left shoulder were caused by the motor accident; Panel found that the injuries to the cervical spine, right shoulder, and left shoulder were threshold injuries; Held – Panel found cervical spine, left shoulder and right shoulder were threshold injuries; Panel revoked earlier certificate and issued a new certificate.

Decision date: 11 February 2025 | Panel Members: Member Terence Stern OAM, Dr Les Barnsley, and Dr Margaret Gibson | Injury module: Mental and Behavioural, Spine, and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Brickwood (NSW) Pty Ltd v Boustany [2025] NSWPICMP 65

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not considering evidence relating to respondent’s hearing loss at the time of commencement of employment with the appellant; whether MA erred by not making a deduction under section 323(1); Held – MA did not make any error; Medical Assessment Certificate confirmed.

Decision date: 5 February 2025 | Panel Members: Member Marshal Douglas, Dr Henley Harrison, and Dr Robert Payten | Body system: Hearing Loss

Wingecarribee Shire Council v Wilson [2025] NSWPICMP 72

Whether when assessing the degree of the respondent’s permanent impairment from her injury the Medical Assessor (MA) erred by taking into account matters that occurred in respondent’s work subsequent to the factors that gave rise to her injury; whether MA failed to take into account relevant evidence when rating the respondent’s impairment in all of the psychiatric impairment rating scale (PIRS) categories; Held – MA assessed the degree of the respondent’s permanent impairment from her injury and the matters that occurred subsequent to her injury had no impact on the respondent’s impairment from her injury; Appeal Panel held that with the exception of Social Functioning the MA’s ratings of the respondent’s impairment in the PIRS categories did not involve any error and the appellant’s submissions amounted to cavilling with the MA’s clinical judgement; Appeal Panel held that the MA’s rating of the respondent’s impairment in Social Functioning could not be justified on the evidence and his rating was wrong; Medical Assessment Certificate revoked.

Decision date: 7 February 2025 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

State of New South Wales (Fire & Rescue NSW) v Campton [2025] NSWPICMP 77

Appellant submits that the Medical Assessor erred in concluding that the appellant had reached maximum medical improvement (MMI) contrary to the weight of evidence; Held – Appeal Panel agreed; the worker was currently engaged in treatment which reportedly had improved his condition; Medical Assessment Certificate revoked.

Decision date: 11 February 2025 | Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Pradhan v Allstaff Australia Sydney Pty Ltd [2025] NSWPICMP 78

Injury to cervical spine and lumbar spine; appeal by the worker in respect of the loading for Activities of Daily Living (ADLS) added to the cervical spine but not in respect of the cervical spine assessment; appeal in respect of the assessment of the lumbar spine; Held – Appeal Panel found error in the assessment and considered a re-examination was necessary; Medical Assessment Certificate revoked.

Decision date: 11 February 2025 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson, and Dr Drew Dixon | Body system: Cervical Spine and Lumbar Spine

Pham v Rentokil Initial Pty Ltd [2025] NSWPICMP 79

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; parties obtained reports commenting on financial information; Medical Assessor (MA) did not comment on worker’s report but discussed material with worker; role of the MA to make independent assessment; State of New South Wales (NSW Department of Education) v Kaur considered; assessment under permanent impairment rating scale tables for social and recreational activities and travel; Held – Medical Assessment Certificate confirmed.

Decision date: 11 February 2025 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr John Lam-Po-Tang | 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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