Legal Bulletin No. 200
This bulletin was issued on 28 February 2025
Issued 28 February 2025
Welcome to the two hundredth 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
Secretary, Department of Education v Wells [2025] NSWPICPD 11
Workers compensation; leave to appeal an interlocutory decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 as part of an appeal against the final result; application of Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; appeal on a matter of practice and procedure; application of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175; Kelly v Mina [2014] NSWCA 9; determination of a deemed date of injury; application of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135; Held –leave to appeal an interlocutory decision is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to the extent that this is necessary; the Certificate of Determination dated 26 March 2024 is revoked; the matter is remitted to a different non-Presidential member for redetermination.
Decision date: 18 February 2025 | Before: Deputy President Michael Snell
Kerr v Sydney Catholic Schools Limited [2025] NSWPICPD 12
Workers compensation; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; appeal under section 352(5) is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error; the appeal is not a review or new hearing; sections 15, 16, 36, 37 of the Workers Compensation Act 1987; pre-injury average weekly earnings; worker worked greater than 15 hours per week; worker’s earnings greater than 95 per cent of pre-injury average weekly earnings; Held – the appeal is dismissed; the Member’s Certificate of Determination dated 21 March 2024 is confirmed.
Decision date: 18 February 2025 | Before: Acting Deputy President Geoffrey Parker SC
Motor Accidents non-Presidential Member Decisions
Mahfoud v AAI Limited t/as GIO [2025] NSWPIC 45
Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4); claimant was driving his motor vehicle along the Horsley Drive at Carramar and was attempting to change from the kerbside lane to the right lane when a collision occurred with the motor vehicle being driven by the insured driver; the insured vehicle was virtually alongside the claimant’s vehicle immediately prior to the collision and it was unsafe for the claimant to attempt to change lanes in such circumstances; determined the claimant did not engage his turning signal (blinker) at least 8 to 10 seconds prior to the collision nor was it accepted the claimant saw the insured vehicle in his rear vision mirror prior to the collision; Held – the claimant was negligent as he did not exercise all due care and caution when attempting to change from the kerbside lane to the right lane and there was no finding as regards to contributory negligence; on the issue of liability for the claim the insurer is entitled to deny liability for the claim and the amount of damages for that liability; no findings regarding an assessment of damages under sections 7.36(3) and 7.36(4); claimant is not entitled to payment of schedule costs and disbursements.
Decision date: 13 February 2025 | Member: David Ford
Allianz Australia Insurance Limited v McQuillian [2025] NSWPIC 53
Motor Accident Injuries Act 2017; settlement approval under section 6.23; bicycle struck by insured driver; fracture fifth metacarpal; debridement and open reduction internal fixation of fracture; hardware removal post motor vehicle accident; decrease strength in left hand; time off work for treatment; assumptions as to most likely future circumstances; future economic loss; consideration of medical material; change in pre-injury duties; Held – the amount of the claim for damages is approved in the total amount of $63,000.
Decision date: 19 February 2025 | Member: Hugh Macken
Workers Compensation non-Presidential Member Decisions
Paton v State of New South Wales (Sydney Local Health District) [2025] NSWPIC 44
Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 37 resulting from primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) sustained in the course of her employment with the respondent; the applicant’s claim is declined with injury and capacity placed in issue; Held – the applicant sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological injury) in the course of her employment with her employment being the main contributing factor to injury; the applicant has suffered an incapacity for work resulting from the injury and has entitlement to weekly compensation payable under section 37.
Decision date: 12 February 2025 | Member: Jacqueline Snell
Workers Compensation Act 1987 (the 1987 Act); claim by uninsured employer pursuant to section 145(3) alleging that it is not liable in respect of compensation payments made by the first respondent to the second respondent; consideration of oral evidence, statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of which party bears the onus of proof; consideration of witnesses’ credit; consideration of the importance of contemporaneous medical records; consideration of the caution to be exercised with treating medical records; consideration of the extent of the injuries sustained by the second respondent; consideration of the second respondent’s correct pre-injury average weekly earnings (PIAWE); consideration of the second respondent’s current work capacity between 3 March 2021 and 15 August 2023; Malco Engineering Pty Ltd v Ferreira, Nguyen v Cosmopolitan Homes, Watson v Foxman, Raniere Holdings Pty Limited v Daley, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Winter v New South Wales Police Force, A1 Granny Flats v Workers Compensation Nominal Insurer, Drca v KAB Seating Systems Pty Ltd, Onassis v Vergottis, Paric v John Holland (Constructions) Pty Limited, and Paric v John Holland (Constructions) Pty Limited considered; Held – the applicant has failed to discharge its onus of proving that the second respondent did not suffer injuries to his neck, back, right shoulder, right hip, and right knee; second respondent suffered injury to his neck, back, right shoulder, right hip, right knee, and right ankle pursuant to sections 4 and 9A; the applicant has failed to discharge its onus of proving that the first respondent paid weekly benefits compensation to the second respondent pursuant to an incorrect PIAWE of $808.50; the applicant has failed to discharge its onus of proving that the second respondent had current work capacity during the period between 3 March 2021 and 15 August 2023; as a result of the second respondent’s injury on 18 November 2020 he had no current work capacity during the period between 3 March 2021 and 15 August 2023; the second respondent was therefore entitled to weekly benefits compensation in accordance with sections 36(1) and 37(1); entitlement being calculated by the first respondent in accordance with a PIAWE of $808.50; as a result of the second respondent’s injury on 18 November 2020 he required medical treatment costing $242.50; the applicant was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act; the amount of $91,724.88 has been paid by the first respondent which reflects the valid and legitimate entitlements of the second respondent to compensation with respect to his 18 November 2020 injury; pursuant to section 145(3) the applicant is liable in respect of the payment made of $91,724.88 and it is to pay the first respondent that amount.
Decision date: 14 February 2025 | Member: Gaius Whiffin
Reed v National Contracting Services Pty Ltd [2025] NSWPIC 48
Workers Compensation Act 1987; claim for cost of lumbar spine fusion surgery; whether the proposed lumbar spine fusion surgery is reasonably necessary; Held – the lumbar spine fusion surgery proposed by the Medical Assessor is reasonably necessary medical treatment pursuant to section 60; the respondent is to pay the medical, hospital and related expenses of the lumbar spine fusion surgery at the gazetted rates.
Decision date: 17 February 2025 | Member: Fiona Seaton
Franco v Franco's Smash Repairs Pty Ltd [2025] NSWPIC 49
Workers Compensation Act 1987; psychological injury suffered by working director; dispute as to capacity in which injury was suffered; worker had a contract of services as a manager confirmed by payslips and suffered injury in that role; Held – award for the applicant for weekly compensation; permanent impairment claim remitted for referral to a Medical Assessor.
Decision date: 17 February 2025 | Member: Catherine McDonald
Conte v Farsaci Pty Ltd [2025] NSWPIC 50
Workers Compensation Act 1987; claim for section 60 expenses; surgery to lumbar spine; consideration of applicant’s statements, medical reports and other treatment records, and claim correspondence; consideration of whether the lumbar spine surgery treatment was reasonably necessary; Diab v NRMA Limited, and Rose v Health Commission (NSW) considered; Held – the claimed lumbar surgery is reasonably necessary pursuant to section 60.
Decision date: 18 February 2025 | Member: Anne Gracie
Petrovic v Aldi Stores [2025] NSWPIC 51
Workers Compensation Act 1987; permanent impairment claim; certain body systems accepted while others in dispute; the applicant suffered accepted right knee injury and a consequential sleep apnoea condition as a result of a fall in the course of her employment; applicant also claims injury to the right hip, right ankle and lumbar spine; the respondent disputes liability with respect to those body systems; Held – the applicant suffered injury to her lumbar spine in the fall at issue; the applicant complained of lumbar symptoms only some weeks after the fall at issue and contemporaneous radiology shows the presence of pathological change to the lumbar spine at that time; such evidence is persuasive and discharges the onus of proof; the applicant suffered right ankle injury in the fall at issue; on the balance of probabilities and taking into account the mechanism of the fall and competing medical evidence the Commission is satisfied on a commonsense basis that there was injury to the right ankle; the applicant offers no medical evidence which substantively links her right hip problems to the injury at issue; her IME assesses 3% whole person impairment (WPI) for this body system however the body of the report contains no substantive reason why the right hip issues relate to the injury; the applicant has not discharged her onus of proof in relation to this body system; the right knee, right ankle, lumbar spine, and consequential respiratory condition are remitted to the President for referral to a Medical Assessor; award for the respondent in relation to the right hip.
Decision date: 18 February 2025 | Member: Cameron Burge
Norouzi v Philip Leong Stores Pty Ltd [2025] NSWPIC 52
Workers Compensation Act 1987; medical expenses; claim for future treatment (posterior lumbar decompression); respondent had lodged additional forensic medical report in breach of clause 44 of the Workers Compensation Regulation 2016; report admitted for the purposes of history; respondent addressed submissions to observations made on examination; those did not constitute matters of history per Waldron v Agrimac International Pty Limited; whether treatment reasonably necessary; Diab v NRMA Ltd; Held – proposed treatment reasonably necessary.
Decision date: 18 February 2025 | Member: Parnel McAdam
Motor Accidents Medical Review Panel Decisions
Diab v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 80
Motor Accident Injuries Act 2017; motor accident on 28 October 2021; rear end collision; assessment of permanent impairment for psychological injury; finding that motor accident caused psychological injury; referral to psychologist three months after accident; original Medical Assessor acted on incorrect history; complaints of chronic pain following motor accident; clauses 6.214 and 6.215 of the Guidelines require that the assessment of psychological injury does not include any allowance for “impairment due to physical injury” and “impairments due to somatoform disorder or pain”; claimant assessed by Medical Assessors; clinical judgment exercised in considering psychiatric impairment rating scale (PIRS) caused by psychological injury and making no allowance for impairment due to physical injury and pain; Held – claimant’s degree of permanent impairment assessed as less than 10%; Medical Assessment Certificate revoked.
Decision date: 11 February 2025| Panel Members: Principal Member John Harris, Dr Christopher Canaris, and Dr Michael Hong | Injury module: Mental and Behavioural
Hassan v AAI Limited t/as GIO [2025] NSWPICMP 82
Motor Accident Injuries Act 2017; motor accident on 30 July 2020; pedestrian child hit by motor vehicle; claimant suffered extensive left lower limb fractures; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; assessment of left lower limb based on muscle wasting in thigh due to knee injury; assessment of loss of movement in left ankle due to extensive fractures; scarring assessed at 4% based on extensive scarring due to injury and surgical procedures; assessment of right lower limb showed reduced range of movement in the ankle and hindfoot; claimant had prolonged inactivity in a wheelchair and otherwise altered gait from surgical procedures causing limping; explanation as to how this would affect right ankle due to lack of activity and limping causing tendons and ligaments on the right side to tighten, contract and shorten; right ankle movements different from previous findings; examination showed consistency on repeated testing and no exaggeration; loss of movement of uninjured right ankle casually related to left ankle injury; Held – claimant’s degree of permanent impairment greater than 10%; Medical Assessment Certificate revoked.
Decision date: 12 February 2025| Panel Members: Principal Member John Harris, Dr Mohammed Assem, and Dr Shane Moloney | Injury module: Spine, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Tu [2025] NSWPICMP 83
Motor Accident Injuries Act 2017; review of assessment of single Medical Assessor (MA); whether injuries caused by the motor accident exceed 10% whole person impairment (WPI); claimant suffered injury as a pedestrian when insured vehicle hit her whilst crossing a roadway on 6 November 2019; original MA found 4% WPI related to scarring; other injuries referred found to be related and caused by the motor accident but resolved including lacerated liver and head injury; insurer’s application alleging the MA erred in ascribing a 4% WPI pursuant to the TEMSKI scale rather than 3%; Held – Medical Assessment Certificate confirmed; utilising clinical judgment and applying the “best fit” principle 4% found to be the most appropriate given the particular features of the scar.
Decision date: 12 February 2025| Panel Members: Member Elizabeth Medland, Dr Sophia Lahz, and Dr Christopher Oates | Injury module: Spine, Brain Injury, Digestive System, and Skin
Forrester v AAI Limited t/as GIO [2025] NSWPICMP 84
Motor Accident Injuries Act 2017; threshold injury; whether alleged injuries to the cervical spine, lumbar spine, and bilateral shoulders are caused by the motor accident and are threshold or non-threshold injuries; Held – lumbar spine injury not caused although mechanism of accident “could” have caused a lumbar spine injury; claimant denied any change to his pre-existing back symptoms following the motor accident; cervical spine and bilaterial shoulders causally related and are threshold injuries; David v Allianz Australia Insurance Ltd applied; Medical Assessment Certificate revoked; injury to the lumbar spine was not caused by the motor accident.
Decision date: 12 February 2025| Panel Members: Member Jeremy Lum, Dr Mohammed Assem, and Dr Les Barnsley | Injury module: Spine, and Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Babbo [2025] NSWPICMP 87
Motor Accidents Compensation Act 1999; review of certificate and reasons of Medical Assessor dated 18 September 2023 who assessed the claimant as having a major depressive disorder and a whole person impairment (WPI) of 17%; the claimant was injured in a motor vehicle accident on 21 February 2017 in a rear end collision and suffering injuries to her neck shoulder and lower back pain; photographs of damage to the claimants car indicated a light impact; the claimant was initially assessed for physical disabilities at 7% WPI but on review by a Review Panel was assessed at 17% WPI; the insurer subsequently obtained surveillance of the claimant and sought a further assessment for which the claimant was assessed at 4% WPI for physical injuries and thereafter the claimant was assessed at 17% WPI for psychiatric disabilities by Medical Assessor; as the insurer obtained surveillance footage of the claimant it made submissions about this but the Medical Assessor did not address inconsistencies demonstrated within the footage; the claimant had submitted that as a result of the accident and continuous pain she developed a psychiatric disorder; Held – Review Panel accepted that the surveillance footage identified the claimant’s undertaking physical activities for which she had submitted she was unable to undertake; the claimant was assessed by the Review Panel as having a persistent depressive disorder caused by the accident and WPI of 5%; Medical Assessment Certificate revoked.
Decision date: 13 February 2025| Panel Members: Member Alexander Bolton, Dr Michael Hong, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Ciantar v QBE Insurance (Australia) Limited [2025] NSWPICMP 90
Motor Accident Injuries Act 2017; degree of permanent impairment dispute; claimant was a passenger in a motor vehicle involved in a rear-end collision of a relatively minor nature; claimant was wearing a seatbelt; airbags did not deploy; claimant complained of limited movement and pain in the left shoulder; diagnostic scans demonstrated failure of surgical fixation of the left humerus following surgery for a left humerus fracture a few weeks prior to the accident; claimant experienced left-sided lower back pain and pain over the right lateral thigh; claimant previously had radiotherapy and chemotherapy to her neck and had no sensation around the shoulder girdle whether relevant to assessment of whole person impairment (WPI); insurer admitted liability for the claim; absence of evidence to assess pre-existing impairment in injured left shoulder; assessment of impairment in uninjured right shoulder; lacuna in Motor Accident Guidelines; Held – Review Panel assesses 11% WPI (Medical Assessor 4% WPI); issues as to causation of injuries; explanation why findings of Review Panel on left shoulder and lumbar spine impairment significantly different to those of Medical Assessor; Medical Assessment Certificate revoked.
Decision date: 17 February 2025| Panel Members: Member Gary Victor Patterson, Dr Les Barnsley, and Dr Ian Cameron | Injury module: Spine, Upper Limb, and Minor Skin
AAI Limited t/as AAMI v Frost [2025] NSWPICMP 91
Motor Accident Injuries Act 2017; permanent impairment dispute; claimant developed psychological symptoms following physical injuries from the motor accident; Medical Assessor diagnosed a specific phobia of driving as well as a persistent depressive disorder and assessed 15% whole person impairment (WPI); the Review Panel found that the claimant was anxious while driving but drove locally; the claimant also did not describe being depressed or having symptoms associated with depression; the Review Panel also considered other psychiatric diagnoses mentioned by the consultant psychiatrist and psychologist namely post-traumatic stress disorder (PTSD) and specific phobia of driving but did not find the symptoms described at those times to meet the respective criteria in the DSM-5; Held – the Review Panel found that the claimant suffered from an adjustment disorder with anxiety as a result of the motor accident which was assessed as 4% WPI; Medical Assessment Certificate revoked.
Decision date: 17 February 2025| Panel Members: Member Jeremy Lum, Dr Paul Friend, and Dr Wayne Mason | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Reid (nee Smith) [2025] NSWPICMP 94
Motor Accidents Compensation Act 1999; psychological injury; review of medical assessment of permanent impairment; claimant was a passenger in a motor vehicle travelling at 110 kph when a tyre blew out causing the vehicle to hit the shoulder of the road, spin around, and to come to rest in the middle of the highway; original Medical Assessor found that claimant sustained a psychological injury (post-traumatic stress disorder) caused by the motor accident that gave rise to permanent impairment of 19%; Held – claimant sustained a psychological injury (major depressive disorder) of mild severity caused by the motor accident that gave rise to permanent impairment of 7%; Medical Assessment Certificate revoked.
Decision date: 18 February 2025| Panel Members: Member Maurice Castagnet, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural
Galea v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 95
Motor Accident Injuries Act 2017; permanent impairment; motorcycle accident on 4 February 2019; review of certificate denying accident nexus with right hip osteoarthritis requiring hip replacement; denial based on GP’s referral to orthopaedic surgeon five months after the accident and no contemporaneous complaints; Medical Assessor (MA) performed thorough clinical examination but declined to assess permanent impairment; parties agreed on no re-examination except for Panel examining scans; Panel Member died requiring reconstituting the Review Panel; delay; Held – the Review Panel was satisfied that the accident caused or materially contributed to right hip condition because of scans, physiotherapist’s note recording contemporaneous complaint about right hip and treating surgeon explaining how osteoarthritis became symptomatic after accident trauma; Review Panel assessed permanent impairment based on original MA’s clinical examination showing good outcome from hip replacement resulting in 15% permanent impairment; Medical Assessment Certificate revoked and new certificate issued.
Decision date: 18 February 2025| Panel Members: Member Terence O’Riain, Dr Geoffrey Stubbs (deceased), Dr Margaret Gibson, and Dr Clive Kenna | Injury module: Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Linkert [2025] NSWPICMP 96
Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant injured in motor vehicle accident of 28 March 2020; on 17 February 2024 MA determined the claimant’s permanent impairment at 10%; the Review Panel confirmed the nerve damage caused by the accident, the 4% lower extremity impairment (LEI) for the sural nerve, 4% LEI for the superficial peroneal nerve, and 2% LEI for the hindfoot gives 10% LEI; totals to 4% whole person impairment (WPI); review of Medical Assessment; Held – Review Panel revoked the Medical Assessment Certificate; substituted determination of 4% WPI.
Decision date: 18 February 2025| Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Shane Moloney | Injury module: Lower Limb
Allianz Australia Insurance Limited v Alonso [2025] NSWPICMP 100
Motor Accident Injuries Act 2017; treatment and care dispute; insured vehicle collided with the front off-side of the claimant’s vehicle; primary damage to the front corner and minor damage to the driver’s door; claimant was able to alight from his vehicle to exchange details with the other driver; claimant subsequently was taken by ambulance to Bankstown Hospital where he complained of neck and low back pain; claimant involved in previous motor accident in 2017 causing injuries to neck, back, and right shoulder; claimant involved as driver in a serious single-vehicle accident in 2021 causing further injury to neck and right shoulder; claimant’s treating spinal surgeon recommended cervical discectomy in 2023; insurer declined liability on basis of causation; Medical Assessor (MA) certified that the proposed surgery does relate to the accident and is reasonable and necessary; Review Panel satisfied that MRI scan performed soon after subject accident showed pathology not present in MRI scan of cervical spine performed around the time of the 2017 motor accident; Review Panel satisfied that claimant’s neck was unrelenting; Review Panel satisfied that subject accident is a contributing cause to the need for surgery as conservative treatment has failed to relieve cervical symptoms; Review Panel satisfied that proposed surgery is reasonable and necessary; Medical Assessment Certificate confirmed.
Decision date: 19 February 2025| Panel Members: Member Gary Victor Patterson, Dr Shane Moloney, and Dr Drew Dixon | Treatment Type: Surgery
Moussa v Allianz Australia Insurance Limited [2025] NSWPICMP 101
Motor Accident Injuries Act 2017; motor accident on 10 March 2021; rear end collision causing contact with third vehicle; claimant re-examined; claimant worked as an electrician in his business; loss of capacity due to chronic pain caused financial issues resulting in loss of business; claimant re-examined; finding that chronic pain caused loss of capacity and failure of his business resulting in financial stress; inability to support family causing major depressive disorder; observations that claimant succeeded on findings of original Medical Assessor who made similar findings but incorrectly applied the test of causation; Held – motor accident caused major depressive disorder; original Medical Assessment Certificate revoked.
Decision date: 19 February 2025| Panel Members: Principal Member John Harris, Dr John Baker, and Dr Christopher Canaris | Injury module: Mental and Behavioural
Ozucargil v QBE Insurance (Australia) Limited [2025] NSWPICMP 102
Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; claimant’s review of certificate; no evidence of psychosis; claimant’s insight and judgment appear to be within normal limits; no behavioural or emotional problems at school; no family history of psychiatric illness; no history of anxiety depression or need for treatment from mental health care providers; insured vehicle collided left rear side of claimant’s vehicle; Held – Review Panel’s findings on examination contrary to treating practitioner; Criterion A as per Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V) not satisfied; claimant not exposed to psychological trauma threatening serious injury or death; no finding of post-traumatic stress disorder (PTSD); initial adjustment disorder; no features to suggest or support a diagnosis of PTSD; Review Panel finds threshold injury; Medical Assessment Certificate confirmed.
Decision date: 19 February 2025| Panel Members: Member Hugh Macken, Dr Christopher Rikard-Bell, and Dr Thomas Newlyn | Injury module: Mental and Behavioural
Wilder v QBE Insurance (Australia) Limited [2025] NSWPICMP 103
Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI) assessment and claimant’s application for review under section 7.26; claimant passenger in vehicle hit from behind, pushed into intersection with second collision, and two impacts from another vehicle; claimant alleged injuries to neck, back, chest, and ribs; back injury included allegation of three thoracic fractures with compression and loss of height; Medical Assessor (MA) determined WPI at 5%; claimant re-examined cervical and lumbar spines at 0%; chest and rib injury had resolved and resulted in no impairment; insurer relied on radiological expert who diagnosed one definite fractured vertebra, a second possibly fractured, and the third not fractured; digital access to thoracic imaging provided to Review Panel and images studied; MA’s satisfied imaging showed single T3 fracture but that there were no fractures of T1 and T2; compression measured at 16.66% loss of height which attracts a DRE II 5% WPI finding; Held – certificate of MA confirmed; discussion of application of Medical Assessment Guidelines and clause 6.23 (some injuries do not attract impairment), table 6.7 (single fracture vs multilevel structural compromise), and spinal impairment in particular clause 6.148 (measurement of vertebral body compression) of the Motor Accident Guidelines.
Decision date: 19 February 2025| Panel Members: Member Belinda Cassidy, Dr Shane Moloney, and Dr Margaret Gibson | Injury module: Spine, and Upper Limb
QBE Insurance (Australia) Limited v Maguire [2025] NSWPICMP 104
Motor Accident Injuries Act 2017; review of medical assessment; left wrist comminuted fracture of the distal shaft of the left radius; mild posterior displacement of the distal fragments; re-examination required; open reduction and internal fixation of the radial fracture with volar plate and screws; left median sensory motor neuropathy; residual stiffness of the left wrist; radial fracture remains stabilised by plate and screws; numbness in the thumb and index finger; loss of grip strength; loss of heat sensitivity over index and middle finger; unconcerned about scar; residual sensory changes of carpal tunnel distribution; Held – combined values chart upper extremity impairment 11% whole person impairment; Medical Assessment Certificate revoked.
Decision date: 19 February 2025| Panel Members: Member Hugh Macken, Dr Drew Dixon, and Dr Margaret Gibson | Injury module: Upper Limb
AAI Limited t/as GIO v Di-Filippo [2025] NSWPICMP 105
Motor Accident Injuries Act 2017; medical panel review of assessment of whole person impairment (WPI) of single Medical Assessor (MA); motor accident of 3 June 2021 involving head on collision; number of injuries alleged including a right shoulder injury; MA declined to assess the right shoulder as it had not reached maximum medical improvement (MMI); Review Panel assessed right shoulder and various other injuries referred for assessment; Held – right shoulder has not reached MMI due to ‘frozen shoulder’ so assessment not performed, cervical spine assessed at 5% WPI and remaining injuries certified as not caused by the motor accident; Medical Assessment Certificate revoked.
Decision date: 19 February 2025| Panel Members: Member Elizabeth Medland, Dr Mohammed Assem, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, and Lower Limb
Workers Compensation Medical Appeal Panel Decisions
Pradhan v Allstaff Australia Sydney Pty Ltd [2025] NSWPICMP 81
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
Qantas Airways Ltd v Owers [2025] NSWPICMP 85
Workplace Injury Management and Workers Compensation Act 1998; employer appeal against assessment regarding respiratory and cardiovascular systems resulting from unsuccessful thoracic outlet syndrome surgery; whether Medical Assessor (MA) erred by finding maximum medical improvement (MMI); whether analogous assessment for asthma appropriate when lung function unaffected; whether section 323 deduction ought to have been made for asthma analogy; whether analogous assessment for cardiac arrhythmia appropriate for tachycardia symptoms; Held – MA answered affirmatively to templated question regarding MMI; his failure to consider expert opinion to contrary immaterial; Chapter 1.15-16 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guides) considered; MA under no obligation to opine on other reports; Wingfoot Australia Partners Pty Ltd v Kocak, and Campbelltown City Council v Vegan considered and applied; asthma analogy per Chapter 1.23 of the Guides not appropriate as lungs not affected by condition rather ability to breathe affected; pulmonary function disorder more appropriate analogy; section 323 accordingly of no application; arrythmia analogy appropriate to tachycardiac symptoms as both concerned with cardiovascular system; Held – Medical Assessment Certificate revoked to reflect substituted analogous condition for pulmonary function disorder.
Decision date: 12 February 2025| Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Mary Obele | Body system: Respiratory, Cardiovascular, Cervical Spine, Right Upper Extremity, and Nervous System
Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWPICMP 86
Matter referred to different Medical Assessor (MA) for reconsideration and further assessment of whole person impairment (WPI) after Certificate of Determination rescinded; MA assessed 32% WPI of the cervical spine, 23% WPI of the lumbar spine, and deducted one half from each assessment for a pre-existing condition; MA failed to take a proper history to adequately consider the actual consequences of the pre-existing conditions in the cervical spine and lumbar spine; Appeal Panel found this failure was a demonstrable error; Appeal Panel determined that a deduction of one tenth should be made for a pre-existing condition in the cervical spine and a deduction of one fifth should be made for a pre-existing condition in the lumbar spine; Held – Medical Assessment Certificate revoked.
Decision date: 12 February 2025| Panel Members: Member Carolyn Rimmer, Dr Chris Oates, and Dr Roger Pillemer | Body system: Cervical Spine, and Lumbar spine
Russell v Toll People [2025] NSWPICMP 88
Appeal from Medical Assessor (MA) alleging failure to examine referred anatomy and examination of unreferred anatomy; whether MA recorded accurate history; whether findings on examination related to referral; whether finding of impingement was consistent with examination to the contrary; appeals by worker and employer; Held – re-examination arranged; Medical Assessment Certificate revoked.
Decision date: 13 February 2025 | Panel Members: Member John Wynyard, Dr Chris Oates, and Dr Todd Gothelf | Body system: Cervical Spine, and Right Upper Extremity
Knight (nee Sanders) v State of NSW (NSW Police Force) [2025] NSWPICMP 89
Appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS) namely travel and social functioning; fresh evidence by way of a further statement sought to be admitted; statement rejected; Petrovic BC Serv No 14 Pty Limited applied; Held – no error in Medical Assessment Certificate (MAC); MAC confirmed.
Decision date: 14 February 2025| Panel Members: Member Deborah Moore, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric
Vecchie v Ricegrowers Ltd [2025] NSWPICMP 92
Whether Medical Assessor (MA) should have concluded appellant had radiculopathy on the basis that appellant had experienced radiculopathy in the past; whether MA’s findings from his examination of the appellant’s movement of her shoulders were correct; whether MA’s ratings of the appellant’s upper extremity impairment based on his recorded findings of the appellant’s restricted movement of her shoulders were correct; whether the MA should have assessed the appellant as having an upper extremity impairment due to a peripheral nerve disorder; Held – MA was correct not to find the appellant had radiculopathy because he did not at the time of examination find any signs consistent with radiculopathy; MA’s examination of the appellant’s shoulders was thorough and no reason to conclude his findings regarding appellant’s range of movement of her shoulders were wrong; MA was correct not to assess any impairment of the appellant’s upper extremities due to peripheral nerve disorder because his findings did not reveal any impairment from a peripheral nerve disorder; MA incorrectly rated the appellant’s upper extremity impairment based on the findings he recorded regarding the appellant’s range of movement of her shoulders; Medical Assessment Certificate revoked.
Decision date: 17 February 2025 | Panel Members: Member Marshal Douglas, Dr Gregory McGroder, and Dr Todd Gothelf | Body system: Lumbar Spine, Thoracic Spine, Cervical Spine, Right Upper Extremity, and Left Upper Extremity
Coppe v Secretary, Department of Education [2025] NSWPICMP 97
The appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of two of the categories of the psychiatric impairment rating scale (PIRS) namely concentration, persistence and pace, and employability; Held – Appeal Panel found error in concentration, persistence and pace but no error in employability; Medical Assessment Certificate revoked.
Decision date: 18 February 2025| Panel Members: Member Deborah Moore, Professor Nicholas Glozier, and Dr John Lam-Po-Tang | Body system: Psychological/Psychiatric
Kingham v Sydney Catholic Schools Ltd [2025] NSWPICMP 98
Appeal seeking increase in 2018 Medical Assessment Certificate (MAC) because of deterioration in appellant’s ability to speak; Held – MAC revoked as expert opinions from both parties ad idem that there had been a deterioration and as to the appropriate whole person impairment; MAC revoked and fresh certificate issued.
Decision date: 18 February 2025| Panel Members: Member John Wynyard, Dr Henley Harrison, and Dr Paul Niall | Body system: Voice/Speech
Stancovici v DMT Trans Pty Ltd [2025] NSWPICMP 99
Psychiatric injury; appeal in respect of four of the psychiatric impairment rating scale (PIRS) categories (self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability); error in the assessment of concentration, persistence and pace as the reasoning process for assessing the appellant as class 2 in this category was unable to be made out and the descriptors supported a rating of class 3; error in the assessment of employability as the reasoning process was not able to be made out and the descriptors supported a rating of class 3 for employability; Held – Medical Assessment Certificate revoked.
Decision date: 18 February 2025| Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
Mir v QBE Insurance (Australia) Limited [2025] NSWPICMR 3
Miscellaneous claims assessment; claimant’s application for merit review in respect of insurer’s determination the claimant’s pre-accident weekly earnings (PAWE) was $579.83; claimant is a self-employed delivery driver; claimant subsequently submitted his business expenses were significantly reduced and accordingly lodged an amended taxation return; despite requests from the insurer to provide receipts for such expenses and also provide a copy of the amended notice of assessment for the financial year 2023 such documentation was not produced; claimant relied upon various bank statements submitting such payments were evidence of business expenses; insurer relied upon the decision in Muzammil v QBE Insurance (Australia) which stated the onus is on the claimant to provide sufficient evidence of his pre accident earnings including the expenses of any business; claimant has a legal obligation to retain such records; requirement of the insurer for the claimant to produce receipts and a copy of the Amended Notice of Assessment is not unreasonable in the circumstances; Held – decision of the insurer is affirmed; claimant’s PAWE is $579.83.
Decision date: 17 February 2025 | Merit Reviewer: David Ford
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.
Subscribeto receive legal bulletins to your inbox.