Legal Bulletin No. 201
This bulletin was issued on 7 March 2025
Issued 7 March 2025
Welcome to the two hundred and first 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
Rose v Insurance Australia Limited trading as NRMA Insurance [2025] NSWSC 134
Administrative law; decision of medical assessment review panel under Motor Accidents Compensation Act; whether panel complied with requirements of the Motor Accident Compensation Act and the Motor Accident Permanent Impairment Guidelines; where panel assessed employability rather than adaptation; procedural fairness; whether medical assessors failed to draw attention to a critical issue or factor on which the panel’s decision turned; practical injustice; whether panel failed to expose its actual path of reasoning; medical assessment certificate set aside; matter remitted to President of Personal Injury Commission; Held – the Panel’s certificate be set aside; the matter be remitted to the President of the Personal Injury Commission to be dealt with according to law; unless the parties approach to be heard within 14 days with short written submissions, the insurer is to bear Mr Rose’s costs, as agreed or assessed.
Decision date: 4 March 2025 | Before: Schmidt AJ
Presidential Member Decisions
Secretary, Department of Education v Harm [2025] NSWPICPD 13
Workers compensation; failure to determine a substantial clearly articulated argument; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 applied; Held – if necessary leave to appeal the Member’s order remitting the respondent’s claim for whole person impairment pursuant to section 66 of the Workers Compensation Act 1987 to the President for referral to a Medical Assessor is granted; the Member’s Certificate of Determination dated 4 March 2024 is revoked; the matter is remitted to a different non-presidential member for re-determination.
Decision date: 20 February 2025 | Before: Deputy President Elizabeth Wood
Harm v Secretary, Department of Education [2025] NSWPICPD 14
Workers compensation; extension of time to appeal a decision of a Member; section 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021; Bryce v Department of Corrective Services [2009] NSWCA 188 discussed; Gallo v Dawson [1990] HCA 30 applied; Held – the application for an extension of the time to appeal pursuant to section 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
Decision date: 20 February 2025 | Before: Deputy President Elizabeth Wood
Hartley v A P & M T Mavin trading as Allan Mavin Carpark Service Station [2025] NSWPICPD 15
Workers compensation; industrial deafness; construction of section 140 of the Workers Compensation Act 1987; worker bears the onus to demonstrate non-insurance; WorkCover Authority of New South Wales v Sadler [2009] NSWWCCPD 127 considered and applied; section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); failure to make a claim within the period required; awareness of potential rights to make a boilermakers deafness claim does not constitute awareness of injury; section 261(6) of the 1998 Act; a party is bound by the manner in which the hearing was conducted; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; applied; consideration of persons liable under section 261(8) of the 1998 Act; Held – leave is granted to the appellant to adduce additional evidence on appeal pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; the Certificate of Determination dated 9 April 2024 is confirmed.
Decision date: 26 February 2025 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decisions
Insurance Australia Limited t/as NRMA Insurance v Johnson [2024] NSWPIC 562
Motor Accident Injuries Act 2017; settlement approval; section 6.23 restrictions on settlement of claim for damages; claim by the estate of the deceased who was injured in a motor vehicle accident on 11 April 2023 aged 59 years; deceased in receipt of a disability pension prior to suffering significant orthopaedic injuries in the accident; deceased suffered considerable pain and suffering during the five months which he survived after the accident involving multiple surgical procedures; deceased suffered from significant pre-accident co-morbidities including high cholesterol and high blood pressure; deceased was being managed for ischemic heart disease and suffered from chronic obstructive pulmonary disease as well as lower back pain; insurer conceded that the injuries were non-threshold injuries; satisfied that the proposed settlement of $112,500 was just fair and reasonable and within the range of likely potential damages assessments for the claim were he assessed by the Commission.
Decision date: 11 October 2024 | Member: Michael Inglis
AAI Limited t/as AAMI v Cvetkovski [2025] NSWPIC 54
Motor Accident Injuries Act 2017; claims assessment dispute as to whether the claim is not suitable for assessment under Division 7.6; insurer made an application that the matter be exempted on a discretionary basis under section 7.34(1)(b); on the grounds that the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim; Rule 99(3)(a) of the Personal Injury Commission Rules 2021 (NSW) (the PIC Rules); the claimant lodged an application for damages assessment on 28 September 2023; a schedule of damages was not lodged on the portal; from the period 14 June 2024 until 2 February 2025 several teleconferences were held; on each occasion further directions were made requiring the claimant to serve a schedule of damages; continual failure to comply with directions on the part of the claimant; claimant’s employer at the time of the accident has refused to comply with documents sought pursuant to a Notice for Production issued by the insurer; as a result SIRA are in the process of implementing enforcement proceedings against this employer; claimant advised the employer had no intention of complying with the Notice for Production; insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum where the legal and factual complexities can be properly considered, where a binding decision can be made, and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment under Division 7.6; recommended the claim be exempt from assessment by operation of subsection 7.34(1)(b) and rule 99 of the PIC Rules; recommendation subsequently approved by the Division Head, as the President’s delegate.
Decision date: 10 February 2025 | Member: David Ford
Ganeson v Allianz Australia Insurance Limited [2025] NSWPIC 55
Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute as to whether certain nutritional supplements recommended by the claimant’s treatment providers (in the lead up to surgery and in the recovery phase) came within the definition of “treatment and care” under section 1.4 of the MAI Act; determination of this point preliminary to medical assessment; general approach to statutory construction considered; Alcan (NT) Alumina v Commissioner of Territory Revenue (NT), and Project Blue Sky Inc v Australian Broadcasting Authority followed; section 33 of the Interpretation Act 1987 and objects of the MAI Act considered; case of Allianz Australia Insurance Limited v The Estate of the late Summer Abawi referred to; legislative history of motor accident schemes and definitions of treatment considered from other schemes; the Health Practitioner Regulation National Law considered in terms of the distinction between health practitioners and medical practitioners or medical professionals; context and purpose of the definition of treatment is to provide boundaries or limits to statutory benefit in order to assist affordability of the scheme but allow the claimant to obtain early and appropriate treatment care and rehabilitation; parties agreed that nutritional supplements could come within the definition of treatment and care if they were “medical treatment (including pharmaceuticals)”; case of NRMA v Scott considered; phrase “medical treatment (including pharmaceuticals)” is not restricted to treatment provided by health practitioners who are medical professionals (doctors) but is a reference to health care provided by health care providers or health care practitioners to an injured person to manage or treat their injuries along with medicines and substances available form a pharmacy or elsewhere; labelling of the supplementary nutritional products considered and the timing of the doctor’s recommendation and its relationship to surgery to an injury caused by the accident; Held – based on the facts and circumstances of this case the supplements were a form of treatment; costs assessed in favour of the claimant.
Decision date: 13 February 2025 | Member: Belinda Cassidy
Ziegeler v Allianz Australia Insurance Limited [2025] NSWPIC 61
Motor Accident Injuries Act 2017; claim for statutory benefits; alleged at-fault vehicle unidentified; claim made on Nominal Defendant; whether “due inquiry and search” established under section 2.30; application of section 1.10A; impact of delay in undertaking inquires and search; Held – due inquiry and search established by the claimant; identity of vehicle alleged to be at fault unable to be established.
Decision date: 20 February 2025 | Member: Bianca Montgomery-Hribar
Workers Compensation non-Presidential Member Decisions
Lazim v All Builds Pty Ltd [2025] NSWPIC 56
Claim for cost of bilateral hernia repair surgery; dispute as to whether hernias caused by injurious event as claimed; the applicant suffered a serious fall at work which caused back and shoulder injuries, with loss of consciousness, and a concussion; he was hospitalized for several days after the injury; approximately six months after the fall and against a background of ongoing serious lumbar spine and shoulder issues the applicant complained of groin pain and underwent ultrasounds which revealed the presence of bilateral inguinal hernias; the respondent denies the hernias were caused by the fall; Held – the primary liability question in this matter is one of causation and accordingly a common sense evaluation of the evidence must be undertaken; Kooragang Cement Pty Ltd v Bates followed; the applicant’s evidence that he was focusing on his back and shoulder symptoms in the initial stages of his recovery is uncontested and is supported by the respondent’s IME who noted inguinal hernias are often undiagnosed and/or asymptomatic for lengthy periods after they develop; a lack of complaint to treating practitioners is not of itself fatal to a claim of injury to a given body system; Baker v Southern Metropolitan Cemeteries Trust; corroboration is not necessary to accept an asserted fact in a civil case; Chanaa v Zarour; the applicant’s IME provides a substantive basis for accepting the hernias were caused by the fall at issue; the respondent’s IME provides a simple assertion they were not caused by the fall without positing why such an event could not have done so; a commonsense evaluation of the causal chain supports a finding of injury in the nature of bilateral inguinal hernias as alleged; the evidence discloses the only effective way to treat hernias is to reduce them via surgery as claimed; as such the surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the proposed surgery.
Decision date: 19 February 2025 | Member: Cameron Burge
Poulis v Deicorp Pty Ltd [2025] NSWPIC 57
Workers Compensation Act 1987; whether applicant can pursue a claim for weekly compensation pursuant to section 38; Held – the applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to section 38.
Decision date: 19 February 2025 | Member: Fiona Seaton
Aston Partners Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2025] NSWPIC 58
Workers Compensation Act 1987; application by employer pursuant to section 145; notice withdrawn by first respondent; applicant maintained that Commission had jurisdiction and sought determination of the matter; consideration of Raniere Nominees Pty Ltd t/as Horizon Motor Lodge v Daley and Another, Widdup v Hamilton, Ballantyne v WorkCover Authority of NSW, and Project Blue Sky v Australian Broadcasting Authority; Held – applicant seeking declaration; Commission does not have power to make declaration; proceedings dismissed.
Decision date: 19 February 2025 | Senior Member: Kerry Haddock
Marium v Woolworths Group Ltd [2025] NSWPIC 59
Applicant claimed weekly benefits after sustaining an injury on 31 July 2024; dispute over correct calculation of pre-injury average weekly earnings (PIAWE); applicant submitted that she was in concurrent employment at the time of injury and that 28 weeks should be excluded from the 52 week relevant period pursuant to clause 8E in Division 2 of Part 4 of the Workers Compensation Regulation 2016; Held – that the applicant was not in concurrent employment at the time of injury and that 27 weeks should be excluded from the relevant earning period resulting in a PIAWE of $496.63.
Decision date: 20 February 2025 | Member: Carolyn Rimmer
Jaiswal v Programmed Skilled Workforce Ltd [2025] NSWPIC 60
Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application for reconsideration pursuant to section 57 of the PIC Act and section 329 of the 1998 Act; worker’s claim for lump sum compensation included scarring (TEMSKI); pleadings restricted to both lower extremities and only these body systems were referred to the Medical Assessor (MA); Certificate of Determination issued consistent with the Medical Assessment Certificate (MAC); dispute as to whether the claim should be referred back to the MA to assess the scarring; Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd, and Samuel v Sebel Furniture Limited discussed and applied; Held – medical dispute that was referred to the Commission always included scarring (TEMSKI) and the referral to the MA did not reflect this; the employer was on notice when IME report served; prejudice to the worker outweighed that of the employer; in the interests of justice between the parties application for reconsideration granted; claim remitted to President for referral back to MA to assess scarring (TEMSKI).
Decision date: 20 February 2025 | Principal Member: Glenn Capel
Spokes v Mark Bristow Painting [2025] NSWPIC 62
Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application for reconsideration of a Certificate of Determination (COD) issued by the former Workers Compensation Commission; exercise of discretion to set aside Certificate of Determination; consideration of sections 6 and 57 of the PIC Act; consideration of the transitional provisions in the PIC Act; clauses 14A, 14D, 14F, and 14H of Schedule 1 to the PIC Act; consideration of sections 319, 326, 327, and 350 of the 1998 Act; Papalia v Transom Services Pty Ltd t/as Transom Scaffolding, Department of Communities & Justice v Cannell, Phan v Elcon Cable Processors, Dimos v Gordian Runoff Limited, Baker v Southern Metropolitan Cemeteries Trust, Petrovic v BC Service No 14 Pty Limited and Ors, Samuel v Sebel Furniture Limited, and Hilliger v Hilliger considered; Held – that the Personal Injury Commission has the power pursuant to section 57 of the PIC Act to reconsider the COD of the former Workers Compensation Commission dated 30 September 2019; that the discretion in section 57 of the PIC Act should be exercised in the applicant’s favour and the COD rescinded to enable an appeal by the applicant of the Medical Assessment Certificate (MAC) pursuant to section 327(3)(a) and/or (b) of the 1998 Act; the Commission orders that the COD issued by the former Workers Compensation Commission dated 30 September 2019 is rescinded pursuant to section 57(1) of the PIC Act; leave is granted to the applicant to file an appeal pursuant to section 327(3)(a) and/or (b) against the MAC dated 27 August 2019 within 28 days.
Decision date: 24 February 2025 | Member: John Turner
Ultimate Disability Services Pty Ltd v Employers Mutual NSW Ltd & Anor [2025] NSWPIC 63
Workplace Injury Management and Workers Compensation Act 1998; worker in receipt of compensation for a physical and psychological injury; miscellaneous application by employer seeking that insurer stop paying compensation to worker on the basis of serious and wilful misconduct; Held – Commission has jurisdiction to resolve disputes between employer and insurers; section 287(1)(b); Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited considered; the remedy sought is not within the Commission’s power; proceedings dismissed.
Decision date: 25 February 2025 | Member: Catherine McDonald
Motor Accidents Medical Review Panel Decisions
Allianz Australia Insurance Limited v Crittenden [2025] NSWPICMP 93
Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident on 2 June 2018; on 19 March 2024 the Medical Assessor determined the injuries to the right shoulder, cervical spine, and lumbar spine suffered by the claimant in the accident were threshold injuries and the injury to the left knee was not a threshold injury; the Review Panel conducted its own examination; Held – the Review Panel confirmed the injuries to the right shoulder, cervical spine, and lumbar spine were caused by the accident and were threshold injuries; the injury to the left knee was not caused by the accident; Medical Assessment Certificate revoked.
Decision date: 18 February 2025| Panel Members: Member Terence Stern OAM, Dr Clive Kenna, and Dr Mohammed Assem | Injury module: Spine, Upper Limb, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Tayba [2025] NSWPICMP 108
Motor Accident Injuries Act 2017; medical review panel; incident on 20 May 2019 involving chase by insured vehicle, collision, and being threatened with knife; review of certificate of Medical Assessor (MA) who certified 17% whole person impairment (WPI) in respect of post-traumatic stress disorder (PTSD) and major depressive disorder caused by the accident; claimant demonstrated psychotic symptoms; no complaint of psychological symptoms for 15 months post-accident; Held – as per Bell v Allianz Insurance Australia Ltd Review Panel not required to decide causation by reference to events which occurred on 20 May 2019 but to the events as a whole; psychotic symptoms common to severe major depressive disorders; difference in natural history of schizophrenia and major depressive disorder with psychotic features; medication quetiapine not only used to treat schizophrenia but also depression with psychotic features and as adjunct in treatment for PTSD; lack of contemporaneous complaint explained; accident causative of current psychiatric condition; Medical Assessment Certificate revoked; 19% whole person impairment assessed as a result of major depressive disorder and PTSD caused by the accident.
Decision date: 20 February 2025 | Panel Members: Member Susan McTegg, Dr John Baker, and Dr Gerald Chew | Injury module: Mental and Behavioural
AAI Limited t/as GIO v Samarae [2025] NSWPICMP 109
Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; dispute about whether degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%; where Medical Assessor certified that post-traumatic stress disorder and major depressive disorder caused by the accident gave rise to a permanent impairment of 14%; Held – the claimant developed a somatic symptom disorder and an adjustment disorder with mixed anxiety and depressed mood as result of the accident; adjustment disorder with mixed anxiety and depressed mood gave rise to a 7% permanent impairment; Medical Assessment Certificate revoked and new certificate issued certifying that the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is not greater than 10%.
Decision date: 20 February 2025 | Panel Members: Senior Member Brett Williams, Dr Wayne Mason, and Dr Samson Roberts | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Spadijer [2025] NSWPICMP 110
Review of certificate and reasons of Medical Assessor dated 22 April 2024 who assessed the claimant as having 20% whole person impairment (WPI); claimant injured in a motor vehicle accident on 19 January 2020 when the insured vehicle travelled across the path of the claimant bringing him to an immediate stop; injuries for review comprised the claimant’s cervical spine being an aggravation of an underlying degenerative change, right shoulder soft tissue injury, lumbar spine soft tissue injury, and left shoulder soft tissue injury; causation considered in light of subsequent fall by the claimant affecting his right shoulder; claimant had also been involved in an earlier accident and suffering similar injuries to the subject accident; significant time lapse between some complaints made by claimant from the time of the accident to time of complaint; Held – Review Panel satisfied that despite delay of complaints of injury to certain areas by the claimant he did suffer injuries to those areas as a direct result of the accident; Review Panel assessed total WPI at 12%; Medical Assessment Certificate revoked.
Decision date: 21 February 2025 | Panel Members: Member Alexander Bolton, Dr Ian Cameron, and Dr Leslie Barnsley | Injury module: Spine, and Upper Limb
Smart v AAI Limited t/as GIO [2025] NSWPICMP 115
Review of medical assessment; statutory provisions; claimant riding motor scooter in roundabout; fractured right ankle; injuries to right shoulder, neck, and lower back; open reduction and internal fixation; clinical notes support lumbar spine injury; use of walking stick; low back pain increasing; medications; examination shoulder no asymmetry; scarring; tropic changes but no contour defect; pigmentary changes to site of scar; documentation supporting claims of injury; Held – whole person impairment greater than 10%; Medical Assessment Certificate revoked.
Decision date: 24 February 2025 | Panel Members: Member Hugh Macken, Dr Shane Moloney, and Dr Drew Dixon | Injury module: Minor Skin, Spine, Upper Limb, and Lower Limb
Dulalia v QBE Insurance (Australia) Limited [2025] NSWPICMP 116
Review of certificate and reasons of Medical Assessor dated 1 April 2024 who assessed a whole person impairment (WPI) of 4% for soft tissue injuries to the claimants hand, cervical spine, lumbar spine, left knee, left foot, left shoulder, and right shoulder; claimant injured in an accident on 15 November 2011; delayed reporting of up to three years of some injuries by the claimant to his treating practitioners including ACL injury; claimant underwent an MRI scan of his left knee in September 2015 which revealed a complete rupture of the ACL; Review Panel not satisfied that it was reasonable to suspect that the claimant would take four years to complain about an ACL injury when this would be expected to give immediate and acute pain upon occurrence; Held – Review Panel assessed the claimant’s WPI at 0%; Medical Assessment Certificate revoked.
Decision date: 25 February 2025 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson, and Dr Sophia Lahz | Injury module: Spine, Brain Injury, Upper Limb, and Lower Limb
Ward v QBE Insurance (Australia) Limited [2025] NSWPICMP 117
Review of certificate of Medical Assessor dated 15 December 2022 finding 0% whole person impairment (WPI); claimant injured on 13 January 2018 when travelling on Newell Highway at 100 km/h when a car entered from a side road and collided with her; claimant’s immediate injury was a fractured sternum; claimant admitted in hospital until 16 January 2018; injuries referred for assessment included right shoulder, left shoulder, sternum fracture, thoracic spine, lumbar spine, right hip, and right leg; following the accident the claimant’s main complaint of injury referred to her sternum fracture; issues of causation of injuries considered by Review Panel; additional records sought by Review Panel showed no reporting and limited treatment of other areas of injury by medical practitioners; claimant found to be a poor historian but accepted as genuine; Review Panel satisfied that the accident had a more than negligible effect on injuries to the claimants sternum, right shoulder, and left shoulder but was not satisfied that other claimed injuries arose from the accident; Held – claimant assessed as having 4% WPI consisting of 2% WPI for each shoulder; Medical Assessment Certificate revoked.
Decision date: 25 February 2025 | Panel Members: Member Alexander Bolton, Dr Drew Dixon, and Dr Michael Couch | Injury module: Spine, Upper Limb, and Lower Limb
Deo v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 118
Motor Accident Injuries Act 2017; assessment of threshold injury and treatment disputes by Medical Assessor (MA) who found claimant’s injuries threshold and all treatment not related and not reasonable and necessary; claimant’s application for review under section 7.26; claim form alleged injuries to neck, back, and shoulders; before accident claimant diagnosed with multiple sclerosis (MS) and functional neurological disorder (FND); claimant had some pre-existing neck and left shoulder symptoms but contemporaneous GP notes record neck and left shoulder then left arm complaints after accident; back symptoms not reported to GP for four months; claimant re-examined by MA; Review Panel satisfied claimant could have injured neck, shoulders, and back in the accident; claimant denied right shoulder injury and no contemporaneous medical record; Review Panel found no injury but if there was it was threshold; claimant alleged only back symptoms were pins and needles in whole of left side of her body including her upper and lower back; Review Panel not satisfied upper or lower back injured and symptoms not medically plausible; Review Panel satisfied claimant sustained left shoulder injury or left shoulder symptoms from neck injury; no evidence of bony injury to shoulder or complete or partial rupture of tendons in left shoulder; shoulder injury in left shoulder is a threshold injury; neck injury was caused; Review Panel not satisfied annular tear and disc bulge caused by accident; Review Panel satisfied claimant may have sustained an injury to soft tissues in neck exacerbating or aggravating degenerative changes in her spine including causing some nerve root irritation; Review Panel not satisfied claimant has radiculopathy and has not had radiculopathy at any time since the accident; David v Allianz Australia Insurance Ltd, Lynch v AAI Limited t/as AAMI, and Allianz Australia Insurance Limited v Susak referred to and followed; evidence relied on by claimant considered by Review Panel and discounted for reasons many of which related to the pre-accident diagnosis of FND; in the treatment disputes the Review Panel had found no lower back injury so lumbar spine imaging requested was not allowed; cervical spine surgery (C5/6 foraminotomy and rhizolysis) not allowed primarily due to treating neurologist’s concerns that in light of the FND the surgery may not be successful; Held – all injuries sustained are threshold injuries and all treatment claimed is not allowed; Medical Assessment Certificate confirmed.
Decision date: 25 February 2025 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr David Gorman | Treatment Type: Surgery, and Radiological Investigations
Cowle v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 119
Motor Accident Injuries Act 2017; motor accident on 22 February 2021; claimant suffered various soft-tissue injuries and skin abrasion to left ankle; development of cheek infection; the dispute related to whether the injury was a threshold injury; claimant re-examined; no signs of past or present radiculopathy; radicular pain not radiculopathy; claimant developed cheek infection three weeks post-accident; facial soft tissue injury probably caused bleeding at old injury site where there was facial hardware; intra-oral incision to drain infection and removal of facial hardware; surgery did not involve injury to nerves, ligaments, menisci or cartilage; suggestion that surgery necessarily involves injury to nerves, ligaments, menisci or cartilage incorrect; observations of Court of Appeal in Mandoukas v Allianz Australia Insurance Ltd on subsequent surgery and whether this fell within the meaning of injury; left ankle skin abrasion; Supreme Court decision in Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi applied; binding precedent Favelle Mort Ltd v Murray; superficial skin abrasion to left ankle constitutes a non-threshold injury; Held – claimant suffered a skin abrasion which was not a threshold injury; Medical Assessment Certificate revoked.
Decision date: 25 February 2025 | Panel Members: Principal Member John Harris, Dr Michael McGlynn, and Dr Geoffrey Curtin | Injury module: Facial Injury and Impairment
Workers Compensation Medical Appeal Panel Decisions
Garwell v Alphasafe (NSW) Pty Ltd [2025] NSWPICMP 106
Appellant appealed against finding of Medical Assessor (MA) that he had not reached maximum medical improvement (MMI); MA found inconsistencies in range of motion of left upper extremity and therefore found the appellant had not reached MMI; Held – assessment made on basis of incorrect criteria; Medical Assessment Certificate (MAC) contained demonstrable error; appellant examined by member of Appeal Panel; MAC revoked and new MAC issued.
Decision date: 19 February 2025 | Panel Members: Senior Member Kerry Haddock, Dr James Bodel, and Dr Andrew Porteous | Body system: Right Upper Extremity, Left Upper Extremity, and Cervical Spine
Hutchinson v Coles Supermarkets Australia Pty Ltd [2025] NSWPICMP 107
Whether Medical Assessor (MA) erred by finding the appellant did not meet the criteria for radiculopathy; Held – Appeal Panel held that it could not be established from the findings the MA recorded in the Medical Assessment Certificate (MAC) from his examination of the appellant whether the MA had examined the appellant for all necessary signs of radiculopathy; the Appeal Panel held that either the MA’s examination was not thorough or his findings were not sufficiently detailed; either of those matters was an error; appellant re-examined; MAC revoked.
Decision date: 20 February 2025 | Panel Members: Member Marshal Douglas, Dr Roger Pillemer, and Dr Margaret Gibson | Body system: Lumbar Spine
Zupancic v Sydney Group Formwork Pty Ltd [2025] NSWPICMP 111
Appeal by worker alleging that the Medical Assessor (MA) erred by not assessing an alleged peripheral nerve injury; whether referral in terms of “upper extremity” required MA to assess all systems and anatomical parts of the extremity; Held – the lack of particularity in the referral is infelicitous and did not reflect the dispute between the parties; Skates v Hills Industries Ltd considered and applied; letter of claim confined the dispute to the assessment of the shoulder; documentation before the MA confirmed that issue; Medical Assessment Certificate confirmed.
Decision date: 21 February 2025 | Panel Members: Member John Wynyard, Dr Roger Pillemer, and Dr Chris Oates | Body system: Right Upper Extremity
Parrington v Ultimate Holiday Parks Pty Ltd ATF The Peate Family Trust [2025] NSWPICMP 112
Psychological Injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under four of the psychiatric impairment rating scale (PIRS) categories and for failing to allow for effects of treatment; Held – Appeal Panel found error; a re-examination was not considered necessary; Medical Assessment Certificate revoked.
Decision date: 24 February 2025 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Liew v Amber Group Australia Pty Ltd [2025] NSWPICMP 113
Workplace Injury Management and Workers Compensation Act 1998; both parties agreed Medical Assessor (MA) erred by making a deduction under section 323(1) for a pre-existing condition; whether the MA also erred with respect to his ratings of appellant’s impairment in self-care and personal hygiene, social and recreational activities, and employability; Held – Appeal Panel held that the MA erred with his ratings for those categories; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 24 February 2025 | Panel Members: Member Marshal Douglas, Dr Graham Blom, and Dr Ash Takyar | Body system: Psychological/Psychiatric
State of New South Wales (NSW Health Pathology) v Cupac [2025] NSWPICMP 114
Workplace Injury Management and Workers Compensation Act 1998; injury to lumbar spine and cervical spine; employer appealed; complaint on appeal concerned loading for activities of daily living (ADLs) and the extent of the deduction under section 323; Held – Appeal panel did not find error; Medical Assessment Certificate confirmed.
Decision date: 24 February 2025 | Panel Members: Member Jane Peacock, Dr Roger Pillemer, and Dr Tommasino Mastroianni | Body system: Cervical Spine, and Lumbar Spine
Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) without findings by Commission; previous injury disclosed but not described in file; worker argued MA failed to apply disease provisions and in application of section 323; inadequate evidence to allow determination about previous relevant employment; application of section 323; Vitaz v Westform (New South Wales) Pty Ltd; Ryder v Sundance Bakehouse; barely adequate reasons but no demonstrable error; Held – Medical Assessment Certificate confirmed.
Decision date: 25 February 2025 | Panel Members: Member Catherine McDonald, Dr Gregory McGroder, and Dr Roger Pillemer | Body system: Left Upper Extremity, and Scarring (TEMSKI)
Edwards v Optimise Energy Solutions Pty Ltd [2025] NSWPICMP 121
Whether Medical Assessor (MA) carried sufficient examination of the appellant to determine whether the degree of the appellant’s permanent impairment was fully ascertainable; whether MA erred by finding appellant had not achieved maximum medical improvement (MMI); Held – Appeal Panel held MA did not conduct an adequate examination of the appellant to determine whether the appellant had achieved MMI and consequently MA erred by finding appellant had not achieved MMI; appellant re-examined; Medical Assessment Certificate revoked.
Decision date: 25 February 2025 | Panel Members: Member Marshal Douglas, Dr Alan Home, and Dr Drew Dixon | Body system: Right Upper Extremity, Left Upper Extremity, and Scarring
Motor Accidents Merit Review Decisions
Custovic v Allianz Australia Insurance Limited [2025] NSWPICMR 4
Motor Accident Injuries Act 2017; claimant’s request for gymnasium equipment refused by insurer citing three main reasons; gymnasium equipment not cost effective; treatment not reasonable and necessary and insurer had no liability to pay for it due to claimant being wholly or mostly at fault as per Custovic v Allianz Australia Insurance Limited; claimant lodged application for merit review of cost of treatment under Schedule 2(1)(i); two preliminary conferences and final submissions lodged by parties; paper assessment; relevant considerations identified by parties and Merit Reviewer as insurer’s previous decision making (not relevant), the rehabilitation period after surgery (which medical evidence suggested was 18 – 24 months of further rehabilitation), cost of alternative and cheaper equipment considered (request acknowledged other and cheaper options), where the equipment was to be housed (previous equipment damaged by flood water), and the impending 52 week cut off period and the time left was relevant to considering the cost effectiveness of the options; Held – the correct and preferable decision is that the cost of the treatment is not reasonable.
Decision date: 19 February 2025 | Merit Reviewer: Belinda Cassidy
Mustafa v QBE Insurance (Australia) Limited [2025] NSWPICMR 5
Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; meaning of earner; Schedule 1 clause 2; earnings through self-employment; number of weeks employed or self-employed in 12 months preceding the motor accident or two years preceding the motor accident; whether sufficient evidence to establish the claimant is an earner; whether the claimant must provide evidence of the number of weeks in which he received earnings; burden of proof; whether claimant has discharged his burden of proof; when onus of proof shifts to insurer; standard of proof; balance of probabilities; Held – the reviewable decision is set aside.
Decision date: 24 February 2025 | Merit Reviewer: Katherine Ruschen
This publication is for information only. The publication is not legal advice. The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.
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