Legal Bulletin No. 202

Issued 14 March 2025

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

Supreme Court Decisions

Atwal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 143

Administrative law; whole person impairment as the result of psychological injury; dispute about whether statutory threshold for damages for non-economic loss met; where parties had not referred dispute for medical assessment; whether damages for non-economic loss can be assessed without medical assessment; summons dismissed; Held – the summons be dismissed; unless the parties approach to be heard with short written submissions within 14 days; Mr Atwal is to bear the insurer’s costs as agreed or assessed.

Decision date: 6 March 2025 | Before: Schmidt AJ

Saveski v Brunjev Pty Ltd [2025] NSWSC 157

Administrative law; review of medical assessment by appeal panel; judicial review of appeal panel decision; where additional evidence before appeal panel; whether appeal panel erred in finding no demonstrable error in medical assessor’s finding that maximum medical improvement had been reached; whether appeal panel erred in finding additional evidence did not establish deterioration of the worker’s condition; Held – the second amended summons filed 19 September 2024 is dismissed with costs.

Decision date: 7 March 2025 | Before: Griffiths AJ

Insurance Australia Ltd t/as NRMA Insurance v Kirkpinar [2025] NSWSC 162

Administrative law; judicial review; review panel under the Motor Accidents Compensation Act 1999 (NSW); approach to causation under section 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW); adequacy of reasons; whether review panel failed to respond to substantial and clearly articulated arguments; whether review panel failed to consider and evaluate evidence before it and intellectually engage with the case before it; Held – amend the name of the second defendant by deleting the words “S7.26 of the Motor Accidents Injuries Act 2017” and replacing them with “section 63 of the Motor Accidents Compensation Act 1999 (NSW)”; order in the nature of certiorari moving into this Court and quashing the certificate of determination of the second defendant dated 26 April 2024 purportedly issued pursuant to section 63(3) of the Motor Accidents Compensation Act 1999 (NSW); order that the plaintiff’s application for review of the certificate of Medical Assessor Home dated 12 April 2023 is remitted to the third defendant for referral to a differently constituted review panel for determination according to law; order that the first defendant is to pay the plaintiff’s costs.

Decision date: 10 March 2025 | Before: Mitchelmore J

Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163

Administrative law; judicial review; jurisdictional error; decision of delegate of President, Personal Injury Commission to refer medical assessment to review panel; whether not reasonably open to delegate to be satisfied that there was reasonable cause to suspect medical assessment was incorrect in material respect; whether order in the nature of certiorari available; whether relief should be refused on discretionary basis; Held – dismiss the further amended summons filed by the plaintiff on 25 July 2024.

Decision date: 10 March 2025 | Before: Basten AJ

Presidential Member Decisions

Federation Council v Carpenter [2025] NSWPICPD 16

Workers compensation; section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25; Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23; Flying Solo Properties Pty Ltd v Collet [2015] NSWWCCPD 14; 16 DDCR 223; Held – the monetary thresholds in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.

Decision date: 3 March 2025 | Before: Deputy President Michael Snell

Toll Transport Pty Ltd t/as Toll Pty Ltd v Pockran [2025] NSWPICPD 17

Workers compensation; Mason v Demasi [2009] NSWCA 227 considered and applied; section 254 of the Workplace Injury Management and Workers Compensation Act 1998; failure to give notice of an injury occasioned by ignorance, mistake or other reasonable cause; employer not prejudiced by the failure to give notice of injury; no error identified on appeal; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied; first instance decision maker to exercise an evaluative judgment of the evidence; Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 applied; Held – the Certificate of Determination dated 4 April 2024 is confirmed.

Decision date: 6 March 2025 | Before: President Judge Phillips

State of New South Wales (Hunter New England Local Health District) v Chislett [2025] NSWPICPD 18

Workers compensation; psychological injury; alleged misuse of concession in respect of ‘injury’; proof of ‘main contributing factor’ where sections 4(b)(ii) and 16 of the Workers Compensation Act 1987 apply; section 11A(1) of the Workers Compensation Act 1987; proof of ‘wholly or predominantly caused by’; alleged multiple errors in fact finding; Held – the Member’s orders in the Certificate of Determination dated 28 February 2024 are confirmed.

Decision date: 6 March 2025 | Before: Acting Deputy President Paul Sweeney

Motor Accidents non-Presidential Member Decision

AAI Limited t/as GIO v Morua [2025] NSWPIC 64

Settlement approval; the claimant was injured on 21 August 2023 and she was riding a pushbike and the insured car ran over her right leg; the claimant at the time was a temporary visitor to Australia studying English; as a result of the accident the claimant suffered a right medial malleolus vertical sheer but subsequently made a good recovery over several months; medical evidence was to the effect that the claimant had 0% whole person impairment; it was unlikely the claimant would have any significant future degeneration or arthritic change; the claimant was an Argentinian national and has returned to reside in Argentina; Held – claimant aware that she is not entitled to future statutory benefits once settlement approved and settlement approved in the amount of $80,000 consisting of past economic loss of $25,000 and future loss of $55,000 less $5557.82 for statutory benefits paid.

Decision date: 26 February 2025 | Member: Alexander Bolton

Workers Compensation non-Presidential Member Decisions

Arifaki v Waste Wise Environmental Pty Ltd [2025] NSWPIC 65

Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application pursuant to section 57(1) of the PIC Act to reconsider and rescind Certificate of Determination; rescission requested to allow application for appeal of Medical Assessment Certificate per section 327(3) of the 1998 Act; Samuel v Sebel Furniture Limited considered; mistake or oversight by a legal adviser primary issue; Held – insufficient grounds made out for exercise of discretion; application dismissed.

Decision date: 28 February 2025 | Member: Adam Halstead

Kaab v Prime Poly Pty Ltd [2025] NSWPIC 66

Workers Compensation Act 1987; claim for proposed knee surgery; causation; accepted injury to back; whether left knee injured at same time or consequential condition; Held – left knee injured at time of injury to back.

Decision date: 4 March 2025 | Member: Michael Wright

Jennings v Pattison Pastoral Butchery Pty Ltd [2025] NSWPIC 67

Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 in respect of primary psychological injury not disputed by the respondent; the respondent claimed that the applicant also sustained a secondary psychological injury as a result of physical injuries sustained by the applicant arising out of or in the course of her employment with the respondent; the occurrence of the physical injuries was not disputed by the respondent but based on what Campbell J found at [20]-[22] in State of New South Wales (NSW Department of Education) v Kaur; submitted that there must be a determination on whether the applicant sustained a secondary psychological condition in addition to the primary psychological injury; Held – the Commission accepted that there must be such determination; detailed examination of contemporaneous treating medical evidence and the opinions of Independent Medical Examiners considered together with the applicant’s evidence; determination that the applicant had sustained a secondary psychological condition as a result of the undisputed physical injuries suffered in the course of the applicant’s employment with the respondent; matter remitted to the President for referral to a Medical Assessor (MA) for assessment of whole person impairment as a result of primary psychological injury; Certificate of Determination and Statement of Reasons to accompany the referral to the MA.

Decision date: 4 March 2025 | Member: Brett Batchelor

Jones v Garden Village Port Macquarie [2025] NSWPIC 68

Workers Compensation Act 1987; dispute in relation to injury to the lumbar spine; respondent denied liability on the basis that the applicant had not suffered injury to her lumbar spine in the course of employment due to a lack of contemporaneous reporting and medical evidence; applicant claimed aggravation of disease process in the lumbar spine as a result of her workplace activities as a catering assistant; Held – applicant sustained ‘injury’ by way of aggravation in the course of employment section 4b(ii); referred to AV v AW, Federal Broom Co Pty Ltd v Semlitch, Kooragang Cement Pty Ltd v Bates, and Murphy v Allity Management Services Pty Ltd; matter remitted for assessment by a Medical Assessor to assess impairment of the lumbar spine and non-disputed cervical spine injury.

Decision date: 4 March 2025 | Member: Diana Benk

Shanahan v Marsh Pty Ltd [2025] NSWPIC 69

Workers Compensation Act 1987; application for the costs of treatment expenses pursuant to section 60; applicant suffered a fractured tooth; the fractured tooth was an abutment for a pre-existing dental bridge; not disputed that the applicant suffered injury in the course of her employment; disputed that employment was a substantial contributing factor to the injury as required by section 9A and disputed that the claimed treatment is reasonably necessary as a result of an injury; citied Mercer v ANZ Banking Corporation, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Dayton v Coles Supermarkets Pty Ltd, McMahon v Lagana, Rootsey v Tiger Nominees Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd; Held – that the applicant sustained injury in the course of her employment on 1 August 2024 and that the applicant’s employment was a substantial contributing factor to the injury; that the treatment proposed by the Medical Assessor (MA) is reasonably necessary as required by section 60; the respondent is to pay pursuant to section 60 the applicant’s reasonably necessary treatment expenses including the treatment proposed by the MA in the treatment plan dated 22 August 2024.

Decision date: 4 March 2025 | Member: John Turner

Chatfield v Total Fire Solutions (Aust) Pty Ltd [2025] NSWPIC 70

Workers Compensation Act 1987; whether applicant suffered an injury; applicant felt pain in the course of normal duties; initial diagnosis of a strain; more significant pain sometime later; investigations revealed that applicant had a type of bone cancer (Ewing’s sarcoma) and suffered a pathological fracture; Held – applicant did not suffer an injury; alternatively employment was not a substantial contributing factor to injury; award for the respondent.

Decision date: 4 March 2025 | Member: Parnel McAdam

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as AAMI v Shoyeb [2025] NSWPICMP 122

Motor Accident Injuries Act 2017; claim for three updated or repeat MRIs; Medical Assessor (MA) determined the treatment was related to the injuries sustained in the accident and was reasonable and necessary in the circumstances; claimant injured in motor accident on 26 November 2021; sustained fractured left wrist; Review Panel satisfied soft tissue injuries to neck, lower back, and right knee; claimant had three MRIs in January (cervical and lumbar spine) and March 2022 (right knee); orthopaedic surgeon advised conservate treatment of neck and back and MRI of right knee was completely normal; claimant complained of worsening pain in October/November 2023 but no new symptoms; insurer’s medico legal had history of resolving lower back and knee pain and claimant’s medico legal had no report of knee pain and intermittent back pain; Held – Review Panel determined not to re-examine claimant and determined the dispute on the papers; section 42 of the Personal Injury Commission Act 2020 referred to and Sydney Trains v Batshon distinguished; Review Panel satisfied treatment in dispute related to injuries resulting from the accident but not satisfied treatment was reasonable and necessary in the circumstances; Rose v Health Commission NSW, Clampett v Workcover Authority (NSW), Moorebank Recyclers Pty Limited v Tanlane Pty Limited, and Diab v NRMA referred to; Medical Assessment Certificate revoked.

Decision date: 26 February 2025 | Panel Members: Member Belinda Cassidy, Dr Les Barnsley, and Dr Ian Cameron | Injury module: Treatment Type: Radiological Investigations

Kitley v Allianz Australia Insurance Limited [2025] NSWPICMP 124

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 September 2017; Medical Assessor determined the claimant’s disputed treatment was not related to the injuries caused by the accident; dispute about treatment; Held – the Review Panel conducted its own examination and concluded that the treatment in dispute was not caused by the accident; Medical Assessment Certificate confirmed.

Decision date: 27 February 2025 | Panel Members: Member Terence Stern OAM, Dr David Gorman, and Dr Drew Dixon | Injury module: Treatment Type: Surgery

Amore v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 125

Application by the claimant for a review of a certificate and reasons of Medical Assessor (MA) dated 28 June 2024; claimant involved in a motor vehicle accident on 14 December 2018; the MA found that the claimants injuries for assessment were not causally related to the accident and consequently there was no need to assess permanent impairment; claimant had pre-existing  disabilities; claimant injured his cervical spine and lumbar spine but also claimed that assessment of referred pain from the lumbar spine to the right leg should be assessed in accordance with the decision of Nguyen v Motor Accident Authority of NSW; claimant also submitted that the issue of causation had already been determined by an MA in a previous determination for treatment and care and relied on the decision of Wood v Insurance Australia Group Limited trading as NRMA Insurance; insurer subsequently conceded that causation was not in issue and that the matter for determination was only the claimant’s whole person impairment; Review Panel assessed the claimant’s whole person impairment (WPI) of his cervical spine on the basis of the finding of DRE III at 15% with two signs of radiculopathy but deducted 5% WPI on the basis of a pre-existing cervicothoracic DRE II assessment due to spinal surgery; giving a total cervical spine assessment of 10%; the claimant’s lumbar spine was assessed at 5% WPI on a DRE II assessment less 5% WPI for a pre-existing DRE II assessment due to spinal surgery; total WPI assessed at 10%; Medical Assessment Certificate revoked with the claimant having a total WPI assessment 10%.

Decision date: 27 February 2025 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson, and Dr Leslie Barnsley | Injury module: Spine

George v AAI Limited t/as GIO [2025] NSWPICMP 126

Motor Accident Injuries Act 2017; permanent impairment; review; claimant’s application; accident on 20 May 2018 as pedestrian; whole person impairment (WPI) dispute; certificates from Medical Assessors dated 14 July 2022 (musculoskeletal) and 28 July 2022 (brain injury) assessed combined WPI at 9% (9% & 0% WPI); claimant applied for reviews; Review Panel met in 2023; assessments delayed because claimant not at maximum medical improvement (MMI); claimant re-examined; claimant’s statement on brain injury impact; Held – different clinical findings to original assessments; musculoskeletal conditions 6% WPI; brain injury 0% WPI; Medical Assessors preferred objective evidence in neuropsychological impairment to claimant’s statements; Review Panel revoked and replaced original medical certificates and combined impairment certificate; permanent impairment not greater than 10%.

Decision date: 27 February 2025 | Panel Members: Member Terence O'Riain, Dr Tai-Tak Wan, and Dr David Gorman | Injury module: Spine, Upper Limb, Lower Limb, Brain Injury and Nervous System (Neurological)

Jean v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 127

Motor Accident Injuries Act 2017; permanent impairment dispute; claimant assessed as cervical spine (5%) right shoulder (2%) resulting in 7% whole person impairment (WPI); shoulder movements were inconsistent and not reproducible; claimant could not explain the inconsistencies; restrictions also due to “golfer’s elbow” which was not a disputed injury and therefore the restriction could not be assessed; there was some impairment in the Review Panel’s view and impairment was assessed via analogy; mild crepitation of the acromioclavicular joint; Held – Medical Assessment Certificate confirmed.

Decision date: 27 February 2025 | Panel Members: Member Jeremy Lum, Dr Les Barnsley, and Dr Christopher Oates | Injury module: Spine, and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Perras [2025] NSWPICMP 128

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 13 March 2021; Medical Assessor (MA) determined the claimant’s disputed treatment was related to the injuries caused by the accident and was reasonable or necessary in the circumstances; dispute about treatment; Held – the Review Panel conducted its own examination and confirmed that the right shoulder surgery was reasonable and necessary in the circumstances; Briggs v IAG Limited trading as NRMA Insurance; Medical Assessment Certificate was confirmed.

Decision date: 27 February 2025 | Panel Members: Member Terence Stern OAM, Dr David Gorman, and Dr Les Barnsley | Injury module: Upper Limb; Treatment Type: Surgery

Allianz Australia Insurance Limited v Predescu [2025] NSWPICMP 129

Motor Accident Injuries Act 2017; assessment by Medical Assessor (MA) that the claimant developed a post-traumatic stress disorder (PTSD) as a result of an accident on 25 March 2021; insurer’s application for review under section 7.25; insurer alleged the MA did not disclose his reasons or refer to the insurer’s documents which included details of pre-accident mental health issues; claimant alleged physical injuries in the accident but no referral of those injuries in the threshold dispute; previous medical assessments had found a shoulder condition not caused by the accident and that the claimant had no further need for physiotherapy in respect of her injuries; Review Panel re-examined claimant by MS Teams; Held – claimant did not satisfy the criteria for PTSD as the accident was not severe enough; claimant did satisfy the criteria for an adjustment disorder; adjustment disorder caused by the accident; disorder was a threshold injury; Medical Assessment Certificate revoked; no issue of principle.

Decision date: 28 February 2025 | Panel Members: Member Belinda Cassidy, Dr Thomas Newlyn, and Dr Surabhi Verma | Injury module: Mental and Behavioural

Eldahoud v QBE Insurance (Australia) Limited [2025] NSWPICMP 130

Review of certificate and reasons of Medical Assessor (MA) who diagnosed the claimant as having post-traumatic stress disorder, major depressive disorder, and somatic symptom disorder with predominantly pain; claimant assessed as having 7% whole person impairment (WPI); claimant injured in an accident 5 August 2019; claimant submitted that when assessing the categories in the psychiatric impairment rating scale (PIRS) the MA did not properly take into account the claimant’s psychiatric disabilities; the insurer submitted that a difference of opinion and interpretation of the intent of the PIRS categories was not an appropriate ground of review and did not evidence an error in the assessment; the Review Panel assessed the claimant and agreed with the diagnoses of the MA but differed in its assessment of the PIRS categories; ultimately also assessed the claimant as having 7% WPI; because of different PIRS assessments the Medical Assessment Certificate was revoked with the Review Panel confirming the claimant was assessed as having 7% WPI.

Decision date: 28 February 2025 | Panel Members: Member Alexander Bolton, Dr John Baker, and Dr Surabhi Verma | Injury module:     Mental and Behavioural

AAI Limited t/as GIO v Slocombe [2025] NSWPICMP 132

Review of medical assessment; Certificate of Determination; reasonable and necessary treatment; whether cervical discectomy is causally related to injury sustained in the subject accident; whether the surgery of cervical discectomy fusion is reasonable and necessary in the circumstances; claimant pre-existing issues; generalised pain and stiffness in neck, lower back, and knees; claimant received acupuncture, massage, and physiotherapy; altered sensation in right C6 root distribution; claimant in wheelchair; numbness not in any dermatomal distribution; marked pain behaviours; associated degenerative disease; signs of radiculopathy; extensive pre-accident medical history; no objective clinical evidence of underlying injury to the neck, shoulders, lower back or knees; widespread symptoms and abnormal illness behaviour; Held – treatment and care does not relate to injuries sustained in the accident; treatment is not reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.

Decision date: 3 March 2025 | Panel Members: Member Hugh Macken, Dr David Gorman, and Dr Tai-Tak Wan | Injury module: Treatment Type: Surgery

Stott v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 133

Review of certificate of Medical Assessor (MA) Curtin dated 16 July 2024 finding a whole person impairment (WPI) of 8% which combined with an assessment of Medical Assessor Cameron of 2% for physical injuries gave a combined assessment of 10% WPI; claimant injured in an accident on 14 April 2023 when travelling as a passenger in a car which collided with an electricity pole and suffering facial injuries with consequent reconstructive surgery; the claimant lost some teeth but this did not affect his mastication; claimant medically examined and found to have suffered a fracture of the left zygomatic maxillary complex, a fracture of the mandible and dental injury, and a left infra orbital nerve injury; Held – claimant assessed by Review Panel as having a 9% WPI; combined with the assessment of Medical Assessor Cameron of 2% gave a total WPI of 11%; Medical Assessment Certificate revoked and a new combined certificate issued with assessment of 11% WPI.

Decision date: 3 March 2025 | Panel Members: Member Alexander Bolton, Dr Michael McGlynn, and Dr John Giles | Injury module: Facial Injury and Impairment

Allianz Australia Insurance Limited v Hamze [2025] NSWPICMP 134

Motor Accident Injuries Act 2017; review of medical assessment; assessment of degree of permanent impairment; multiple soft tissue injuries; reasonable cause to suspect medical assessment was incorrect in a material respect; claimant working 3-4 days a week as a panel beater; Held – Medical Assessment Certificate revoked.

Decision date: 3 March 2025 | Panel Members: Member Hugh Macken, Dr Sophia Lahz, and Dr David McGrath | Injury module: Spine, Upper Limb, and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Diab [2025] NSWPICMP 137

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) who determined that the claimant had 14% WPI; review sought by insurer under section 7.26; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation, and clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – Review Panel revoked the certificate issued by the MA; Review Panel certified that the claimant sustained soft tissue injuries and ongoing aggravations of pre-existing conditions in her cervical spine, lumbar spine, bilateral shoulders, and right knee caused by the motor accident on 28 October 2021 that give rise to 9% WPI.

Decision date: 4 March 2025 | Panel Members: Member Anthony Scarcella, Dr Margaret Gibson, and Dr Ian Cameron | Injury module: Spine, Upper Limb, and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

RYTY (NSW) Pty Ltd v Swinfield [2025] NSWPICMP 123

Appeal against Medical Assessment Certificate (MAC) on grounds of demonstrable error and incorrect criteria in assessment of respondent’s left upper extremity (left hand); respondent agreed with appellant that the Medical Assessor (MA) had erred in the application of Table 16-1 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); appellant and respondent agreed on correct assessment of whole person impairment (WPI) as a result of injury to the respondent’s left upper extremity; Appeal Panel agreed with parties’ submissions that the MA erred in assessment of respondent’s left upper extremity and with parties’ submissions as to correct assessment; MA did not err in assessment of TEMSKI scarring; Held – MAC revoked and new MAC issued.

Decision date: 26 February 2025 | Panel Members: Senior Member Kerry Haddock, Dr Margaret Gibson, and Dr Alan Home | Body system: Left Upper Extremity, and Scarring (TEMSKI)

Li v Villawood Relaxation Centre [2025] NSWPICMP 131

Workplace Injury Management and Workers Compensation Act 1998; worker assaulted in employment suffering injury to lumbar spine; evidence of age related degenerative change and previous injury to lumbar spine; extent of previous injury unclear; inconsistent histories given of extent of injury; insufficient evidence to form a conclusion for the proportion of impairment due to previous injury; section 323(2) operates in those circumstances; deduction of one tenth made; Held – Medical Assessment Certificate revoked.

Decision date: 28 February 2025 | Panel Members: Member Parnel McAdam, Dr Doron Sher, and Dr Margaret Gibson | Body system: Lumbar Spine, and Skin

Bertolotti v Employers Mutual Management Ltd [2025] NSWPICMP 135

Psychological injury; appellant worker alleged demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories (self-care and personal hygiene and concentration, persistence and pace); Held – Appeal Panel found error because of an inadequate path of reasoning and a re-examination was considered necessary; Medical Assessment Certificate revoked.

Decision date: 3 March 2025 | Panel Members: Member Jane Peacock, Dr John Baker, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Belavic v State of New South Wales (Hunter New England Local Health District) [2025] NSWPICMP 136

Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria in Medical Assessor’s finding that 50% of whole person impairment (WPI) to be “apportioned” to a subsequent aggravation; whether Medical Assessor erred in making a deduction pursuant to section 323 where there was asymptomatic pre-existing early osteoarthritic change; Held – Appeal Panel agreed; Medical Assessment Certificate revoked.

Decision date: 3 March 2025 | Panel Members: Member Rachel Homan, Dr Christopher Oates, and Dr Roger Pillemer | Body system: Left Lower Extremity (Knee)

Wall v Philip Leong Stores Pty Ltd [2025] NSWPICMP 138

Appeal by worker against 10% whole person impairment (WPI) Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) had given adequate reasons for making a one fifth deduction regarding the left shoulder; Held – reasons adequate as they reflected the opinion of the appellant’s expert, referred to the prior radiological evidence, repeated the appellant’s history regarding the prior injury, and noted the appellant’s complaint of continuing symptomatology when he returned to work; Wingfoot Australia Partners Pty Ltd v Kocak, and El Masri v Woolworths Ltd applied; Cole v Wenaline Pty Ltd referred to; Medical Assessment Certificate confirmed.

Decision date: 4 March 2025 | Panel Members: Member John Wynyard, Dr James Bodel, and Dr Andrew Porteous | Body system: Cervical Spine, Left Upper Extremity, and Nervous System (Central and Peripheral)

Ali v IN2F Services Pty Ltd [2025] NSWPICMP 139

Assessment of the knee; Table 17-10 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Medical Assessor provided incorrect figures of lower extremity impairment for flexion and flexion contracture; Table 17-10 of AMA 5 does not invite discretion or provide for a range for figures; Held – application of incorrect criteria; Medical Assessment Certificate revoked.

Decision date: 4 March 2025 | Panel Members: Member Parnel McAdam, Dr Roger Pillemer, and Dr Gregory McGroder | Body system: Right Lower Extremity (Knee), Lumbar Spine, and Scarring (TEMSKI)

Cook v Southern Riverina Labour Contracting Pty Ltd [2025] NSWPICMP 140

Appellant appealed against assessment on the basis that the Medical Assessor (MA) had applied incorrect criteria and that the Medical Assessment Certificate (MAC) contained demonstrable error; the appellant submitted that the MA should have assessed her right upper extremity (right shoulder) using both range of motion and Table 16-27 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) because the appellant had undergone right shoulder replacement; Held – MA did not apply incorrect criteria and the MAC did not contain demonstrable error because the appellant has not undergone right shoulder replacement but right shoulder reconstruction; the MA did not err in basing his assessment of the appellant’s right shoulder on range of motion only; MAC confirmed.

Decision date: 4 March 2025 | Panel Members: Senior Member Kerry Haddock, Dr James Bodel, and Dr Margaret Gibson | Body system: Right Upper Extremity (Shoulder), Left Upper Extremity (Shoulder), and Scarring (TEMSKI)

Hunter v State of New South Wales (Ambulance Service of NSW) [2025] NSWPICMP 141

Workplace Injury Management and Workers Compensation Act 1998; appellant submits that the Medical Assessor (MA) erred in a number of respects in his assessment especially regarding the presence of crepitus; re-examination required; Held – errors by MA; Medical Assessment Certificate revoked.

Decision date: 4 March 2025 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr Margaret Gibson | Body system: Left Upper Extremity (Shoulder), Right Upper Extremity (Shoulder), Left Lower Extremity (Knee), and Right Lower Extremity (Knee)

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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