Legal Bulletin No. 204

Issued 28 March 2025

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

Presidential Member Decision

Fell v Willoughby City Council [2025] NSWPICPD 21

Workers compensation; extension of time to appeal; section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A(5) of the Personal Injury Commission Rules 2021; whether in exceptional circumstances, to lose the right to appeal would work a demonstrable and substantial injustice; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied; section 11A(1) of the Workers Compensation Act 1987; reasonable action taken with respect to discipline; Department of Education and Training v Sinclair [2005] NSWCA 465; Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 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: 19 March 2025 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decision

QBE Insurance (Australia) Limited v Elliot [2025] NSWPIC 93

Motor Accident Injuries Act 2017; settlement approval; 68-year-old pedestrian struck by the insured motor vehicle whilst attempting to cross at an intersection; sustained several fractured ribs, fracture of the left distal fibula, and a small pneumothorax; claimant worked as a pathology courier driver unable to return to his employment; claimant has not been able to engage in either full time or part time work since the accident; claimant considered retirement eventually in the future; sustained a non-threshold injury; insurer admitted liability; no entitlement to non-economic loss (NEL); claim for past and future economic loss; the total amount of damages proposed is $96,403 less statutory payments made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).

Decision date: 18 March 2025 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Bdeir v Zoom Recruitment Industrial NSW Pty Ltd [2025] NSWPIC 83

Workers Compensation Act 1987; aggravation injury; section 4(b)(ii); Kelly v Western Institute NSW TAFE Commission; Ariton Mitic v Rail Corporation of NSW; Mylonas v The Star Pty Ltd; Egan v Woolworths Limited; Meaney v Office of Environment and Heritage – National Parks and Wildlife Service; Wayne Robinson v Pybar Mining Services Pty Ltd; whether possible view probable; Woolworths Limited v Christopher-Coates; material contribution to need for surgery; section 60; Murphy v Allity Management Services Pty Limited; Taxis Combined Services (Victoria) Pty Limited v Schokman; Held – the applicant sustained an aggravation injury to his right hip; aggravation injury to the applicant’s right hip made a material contribution to the need for right hip replacement surgery; respondent is to meet the costs of and incidental to the right hip replacement surgery in accordance with section 60.

Decision date: 24 February 2025 | Member: Mitchell Strachan

Mago v Downer EDI Engineering Power Pty Ltd [2025] NSWPIC 84

Workers Compensation Act 1987; claim for expenses pursuant to section 60 for the cost of lumbar spinal fusion surgery; undisputed injury to the lumbar spine; respondent disputed the reasonable necessity of surgery claiming it was premature as the applicant had not undergone an interdisciplinary management programme recommended by a treating occupational health physician; respondent raised issues in respect of the applicant’s recommended intake of medication and the risk of having to undergo further spinal surgery as a consequence of the surgery; applicant had fully complied with all of the physical aspects of his pain management and rehabilitation with the exception of the interdisciplinary management programme; applicant did not elect to pursue the request for surgery until he had undergone all of the physical aspects of his pain management and rehabilitation; Held – pursuant to the matters referred to in Diab v NRMA Ltd the surgery proposed by the applicant’s treating spine surgeon was reasonably necessary as a result of the undisputed back injury; respondent ordered to pay for the cost of and incidental to such surgery pursuant to section 60.

Decision date: 12 March 2025 | Member: Brett Batchelor

Derikuca v ISS Property Services Pty Ltd [2025] NSWPIC 85

Workers Compensation Act 1987; claim for weekly payments of compensation and dispute as to whole person impairment arising out of psychological injury; applicant actively sought reinstatement of employment in Fair Work proceedings and in associated proceedings in the Supreme Court during periods in which he claimed to be totally incapacitated; delayed reporting of psychological injury; backdated certification by general practitioner for periods in which there was no psychological complaint despite regular consultations; definition of psychological injury discussed; emotional impulse, anxiety state, frustration, and emotional upset do not constitute psychological injury; Stewart v New South Wales Police Service applied; Held – unable to accept the applicant’s evidence as to the effect of the workplace events had on his psyche; award for the respondent.

Decision date: 12 March 2025 | Member: Diana Benk

Palmer v Flexiforce Australia Pty Ltd [2025] NSWPIC 86

Claim for fusion surgery; whether proposed surgery reasonably necessary; applicant had previous decompression that involved a cerebrospinal fluid leak (CSF leak); ongoing neurological pain; contraindicators for surgery included smoking, pain syndrome, and mental health issues; Diab v NRMA considered; Held – proposed surgery reasonably necessary; respondent to pay costs of surgery.

Decision date: 14 March 2025 | Member: Parnel McAdam

Haggett v Woolworths Group Ltd [2025] NSWPIC 87

Workers Compensation Act 1987; claim for weekly payments of compensation and treatment expenses in respect of psychological injury; whether injury predominantly caused by reasonable action with respect to discipline pursuant to section 11A(1); causation multifactorial; Hamad v Q Catering Ltd applied; Held – respondent’s medicolegal opinion that disciplinary action was the predominant cause of injury accepted; reasonableness of relevant action not challenged; award for the respondent.

Decision date: 17 March 2025 | Member: Rachel Homan

Soward v Strop Pty Ltd [2025] NSWPIC 90

Workers Compensation Act 1987; abdominal hernias; heavy nature of work; contributing causes to development of hernia included smoking and obesity; journal articles on causes of abdominal and inguinal hernia; relied upon by respondent’s qualified doctor who incorrectly quoted from the articles; articles suggested that heavy repetitive work was a contributing cause to the development of abdominal hernias; opening of abdominal wall is a definite or distinct physiological disturbance and constitutes a section 4(a) injury; Military Rehabilitation and Compensation Commission v May; causal relationship between the heavy lifting and the development of hernia; Badawi v Nexon Asia Pacific Pty Ltd; application of section 9A; other contributing causes including smoking and obesity; temporal relationship and heavy lifting sufficient to constitute a substantial contributing factor; Held – applicant entitled to costs of surgery for repair of hernias.

Decision date: 18 March 2025 | Principal Member: John Harris

Ciraolo v Tempe Tyres & Wheels Centre Pty Ltd [2025] NSWPIC 91

Workers Compensation Act 1987; claim by dyslexic 20-year-old for weekly payments of compensation following work capacity assessment; whether dyslexia negated recommendation by insurer’s vocational expert; whether recommendations generally infringed section 32A; whether recommendations were not a ‘real job’; Held – dismissing application; dyslexia not a barrier to recommended employment of data entry operator; assumption made by applicant’s vocational assessor not sufficiently supported by facts; section 32A submissions made with an eye too keenly attuned to error; roles recommended were ‘real jobs’; Wollongong Nursing Home Pty Ltd v Dewar, Westpac Banking Corporation v Mani, and Popal v Myer Holdings Pty Ltd considered and applied.

Decision date: 18 March 2025 | Member: John Wynyard

Jenkins v Cordina Chickens Pty Ltd & Ors [2025] NSWPIC 92

Claim for interest under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; previous ex-tempore determination of apportionment of lump sum pursuant to section 25(1)(a) of the Workers Compensation Act 1987; Held – interest payable by first respondent at 2% above the cash rate published by the Reserve Bank of Australia from date when claim duly made to date when apportionment orders made; “duly made claim” occurred when each dependant provided full particulars of their claim including the supporting evidence.

Decision date: 18 March 2025 | Principal Member: Josephine Bamber

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as GIO v Megaloudis [2025] NSWPICMP 165

Motor Accident Injuries Act 2017; motor accident on 21 December 2017; modest rear-end collision; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; claimant had previous motor accident in 2014 and prepared statements in 2017 relating to her psychiatric condition; inconsistency with evidence to Review Panel; Review Panel’s opinion that claimant downplayed previous injury and subsequent unrelated events such as traumatic death of her mother; assessment significantly based on reservations that the claimant is an accurate and reliable witness; claimant showed ability to travel overseas since the motor accident; ability to concentrate evident from her presentation during the clinical examination; assessment of pre-existing condition based on materials in 2017 including son’s statement in October 2017; no deduction made for post-accident events given claimant’s denials; Held – claimant’s degree of permanent impairment assessed at 8% less 5% for the pre-existing condition; original assessment of permanent impairment revoked.

Decision date: 14 March 2025 | Panel Members: Principal Member John Harris, Dr Gerald Chew, and Dr Wayne Mason | Injury module: Mental and Behavioural

Ghanim v Allianz Australia Insurance Limited [2025] NSWPICMP 166

Motor Accident Injuries Act 2017; permanent impairment dispute; claimant was a passenger in a vehicle driven by a NDIS support worker; insured vehicle did not obey a traffic signal and struck the claimant’s vehicle on the left side; airbags did not deploy; ambulance and police officers attended; claimant was taken to Liverpool Hospital where she remained for four days; fractured right-sided ribs were diagnosed; insurer did not agree that the claimant’s permanent impairment exceeded the 10% whole person impairment (WPI) threshold; Medical Assessor (MA) assessed 2% WPI for the left shoulder and 2% WPI for the right shoulder; 0% WPI for various other soft tissue injuries; MA found that injuries to the lung, hip, and pelvis were not caused by the accident; Review Panel made the same findings; Held – Medical Assessment Certificate confirmed.

Decision date: 14 March 2025 | Panel Members: Member Gary Victor Patterson, Dr David Gorman, and Dr Sophia Lahz | Injury module: Spine, Upper Limb, Lower Limb, Respiratory System, and Brain Injury

QBE Insurance (Australia) Limited v Powell (No 2) [2025] NSWPICMP 167

Motor Accident Injuries Act 2017; application for review of a treatment dispute under section 7.26; claimant severely injured in motor accident on 27 September 2019 at the age of 33; claimant requested insurer pay for IVF treatment to harvest and store her eggs to preserve her ability to have children at a later date; the insurer refused; Medical Assessor (MA) determined IVF treatment was related to the injuries caused by the accident and was reasonable and necessary in the circumstances; insurer sought review but agreed to fund five cycles of IVF with associated expenses and storage costs; after Principal Member determined proceedings should not be dismissed in Powell v QBE Insurance (Australia) Limited insurer conceded the treatment was reasonable and necessary in the circumstances of the claimant’s age (now 38) and her declining fertility due to age but denied the treatment was related to the accident; claimant had multiple fractures to her pelvis and other injuries; claimant conceded she had not injured any of her reproductive organs in the accident; claimant alleged her fertility had declined as a result of all of the injuries she sustained in the accident and that she was not physically or psychologically well enough to have a child at the present time and wished to preserve her eggs so that she could have children when she felt well enough; Medical Assessors agreed the claimant would be able to maintain a pregnancy and deliver a child but that she would have difficulties and increased pain in doing so, her injuries were likely to cause pain during intercourse making it unlikely she could conceive naturally, and the claimant’s fertility had reduced since the accident because of her age and that pain and stress could have caused an additional reduction in fertility; Review Panel not satisfied the claimant stopped ovulating after the accident because of the accident; Held – Review Panel satisfied claimant not physically well enough to have a child since the date of the accident because of the totality of her injuries; claimant’s fertility has declined and is declining; Review Panel satisfied IVF treatment related to the totality of all of her injuries; Medical Assessment Certificate revoked.

Decision date: 14 March 2025 | Panel Members: Member Belinda Cassidy, Dr Norman Chan, and Dr John Schmidt | Injury module: Treatment Type: Other

Insurance Australia Limited t/as NRMA Insurance v Najem [2025] NSWPICMP 168

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%; Medical Assessor certified that adjustment disorder with anxiety and depressive symptoms was caused by the accident and gave rise to a permanent impairment that was greater than 10%; Held – claimant developed adjustment disorder with mixed anxiety and depressed mood as result of the accident that gave rise to a 6% permanent impairment; certificate of assessment 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: 17 March 2025 | Panel Members: Senior Member Brett Williams, Dr Wayne Mason, and Dr Paul Friend | Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v Denmeade [2025] NSWPICMP 169

Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 1 June 2022; Medical Assessor (MA) determined the claimant’s disputed treatment, anterior cervical discectomy, and fusion at C4/5 and C5/6 was related to the injuries caused by the accident and was reasonable and necessary in the circumstances; dispute about treatment; Held – Review Panel conducted its own examination and concluded that the treatment in dispute was caused by the accident; Medical Assessment Certificate confirmed.

Decision date: 17 March 2025 | Panel Members: Member Terence Stern OAM, Dr David Gorman, and Dr Clive Kenna | Injury module: Treatment Type: Surgery

Butler v QBE Insurance (Australia) Limited [2025] NSWPICMP 170

Review of medical assessment; threshold injury; psychosocial history; pre-accident family relationships; referral to pain management clinic; auto immune marker with scleroderma; post-accident commitment ceremony; post-accident employment circumstances; strained friendships and relationships post-accident; anxiety with near cars; diminished interest in socialisation; insomnia; fatigue with loss of energy; excessive guilt surrounding motor vehicle accident; depressive symptoms; anxiety symptoms including difficulty travelling; difficulty accessing psycho-social treatment; medical documentation and criteria for post-traumatic stress disorder; diagnosis of major depressive disorder of mild severity; non-threshold injury; Held – Medical Assessment Certificate revoked.

Decision date: 17 March 2025 | Panel Members: Member Hugh Macken, Dr Verma Surabhi, and Dr John Baker | Injury module: Mental and Behavioural

Tongi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 177

Motor Accident Injuries Act 2017; permanent impairment dispute; claimant was reversing slowly out of her parking spot as the insured vehicle approached to pass behind her car; claimant slammed her right foot onto the brake; insured vehicle hit the tow ball of the claimant’s car; claimant exchanged details with the driver of the other car and continued on her way; later onset of pain in her right knee and right leg for which claimant consulted her GP the next day; claimant was referred to Mount Druitt Hospital; claimant was later found to have sustained a Weber A fracture in her right ankle and a fracture in the navicular bone of her right foot; claimant has a past history of lower back pain before the subject accident; claimant returned to playing netball and basketball after back surgery and had occasional low back pain; insurer admitted liability but would not concede entitlement to non-economic loss damages; claimant developed Charcot’s foot post-accident; no foot problems before accident despite pre-existing diabetes; claimant underwent surgical foot reconstruction and sub-talar arthrodesis; Medical Assessor (MA) found 6% whole person impairment (WPI) for right ankle, 2% WPI for right mid-foot and 2% WPI for surgical scarring; MA found that injury to lumbar spine not caused by subject accident; claimant’s review application mainly directed to that finding; Review Panel made same causation findings despite acknowledging weight in claimant’s submissions; Review Panel differed from MA in assessment of sub-talar fusion; Held – Review Panel finds 12% WPI; finding on causation of lumbar spine condition not critical to outcome; Medical Assessment Certificate revoked.

Decision date: 18 March 2025 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr David Gorman | Injury module: Spine, Lower Limb, and Skin

Rowland v AAI Limited t/as GIO [2025] NSWPICMP 178

Motor Accident Injuries Act 2017; permanent impairment dispute; motor accident caused airbag to deploy striking claimant in the nose; CT scan showed a deviation of the bony nasal septum to the right causing early compromise to the right nasal passage; Review Panel examination revealed moderate obstruction of the right nasal airway; under clause 6.199 of the Motor Accident Guidelines the Review Panel noted that significant partial obstruction of the right and/or nasal cavity is assessed at 0-5% whole person impairment (WPI); Review Panel considered the degree of partial obstruction of the right nasal airway is moderate in extent and the impairment fell in the middle of the range at 3% WPI; this was the same assessment as the medical assessment under review and the Review Panel therefore confirmed the certificate; it was noted that the claimant’s other orthopaedic injuries were assessed at 7% WPI.

Decision date: 18 March 2025 | Panel Members: Member Jeremy Lum, Dr Geoffrey (Paul) Curtin, and Dr Michael McGlynn | Injury module: Ear, Nose, Throat and Related Structures

Sabbagh v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 179

Motor Accident Injuries Act 2017; threshold injury dispute; Review Panel found previous motor accident in 2020 caused post-traumatic stress disorder (PTSD); subject accident in 2022 did not cause an exacerbation of the PTSD; claimant had some increased anxiety and pain symptoms but functioning had improved following the subject accident; Review Panel found subject accident caused an adjustment disorder with no other psychiatric diagnoses found; Lynch v AAI Limited, and David v Allianz Insurance Limited considered and applied; Held – motor accident caused an adjustment disorder which is a threshold injury; Medical Assessment Certificate confirmed.

Decision date: 18 March 2025 | Panel Members: Member Jeremy Lum, Dr John Baker, and Dr Michael Hong | Injury module: Mental and Behavioural

AAI Limited t/as GIO v Zjalic [2025] NSWPICMP 180

Motor Accident Injuries Act 2017; permanent impairment dispute; claimant suffered musculoskeletal injuries related to the motor accident for which he was prescribed opioid analgesics (Panadeine Forte) for the pain; claimant took the medication regularly and developed upper and lower gastrointestinal tract dysfunction three years later; Review Panel found that gastroesophageal reflux is caused primarily by anti-inflammatory medication taken on a regular basis (such as Nurofen); the claimant rarely took anti-inflammatories; claimant regularly took opioid medication which could cause lower gastrointestinal tract dysfunction however the Review Panel was of the view symptoms would have manifested within 1-2 days to a few weeks of the commencement of the medication; Held – Review Panel concluded that the injury to the digestive system was not causally related to the motor accident; claimant’s other musculoskeletal injuries were assessed at 9% whole person impairment (WPI) which were included in the Review Panel’s combined certificate.

Decision date: 18 March 2025 | Panel Members: Member Jeremy Lum, Dr Margaret Gibson, and Dr Christopher Oates | Injury module: Digestive System

AAI Limited t/as AAMI v Lazkani [2025] NSWPICMP 181

Motor Accident Injuries Act 2017; threshold injury dispute; preliminary question of jurisdiction namely whether a Review Panel can consider the review when no internal review was requested or made by the insurer in relation to alleged psychological injury; Review Panel satisfied it had jurisdiction; claimant is a minor and was a passenger in a vehicle driven by her mother; claimant involved in a motor accident and developed psychological symptoms which were not reported by her mother until some two years after the motor accident; Review Panel accepted history from claimant’s mother that there was delay in seeking treatment and seeing a GP because the mother had hoped the claimant’s psychological symptoms would resolve; causation was satisfied; Held –Review Panel re-examined claimant and found a generalised anxiety disorder which is not a threshold injury; Medical Assessment Certificate confirmed.

Decision date: 19 March 2025 | Panel Members: Member Jeremy Lum, Dr Paul Friend, and Dr Thomas Newlyn | Injury module: Mental and Behavioural

Oyoo v Allianz Australia Insurance Limited [2025] NSWPICMP 182

Motor Accident Injuries Act 2017; assessment of permanent impairment; claimant suffered injury in a motor accident on 17 January 2020 when the insured truck struck his vehicle from behind; whether the injury to the thoracic spine leading to decompression surgery was caused by the accident; previously asymptomatic degenerative thoracic spondylosis at T10/T11; original assessment of whole person impairment of 5% for injury to cervical spine and 5% for injury to lumbar spine was not in dispute; Held – Medical Assessment Certificate revoked and new certificate issued with a finding of a degree of permanent impairment of 33%.

Decision date: 19 March 2025 | Panel Members: Member Maurice Castagnet, Dr Drew Dixon, and Dr Clive Kenna | Injury module: Spine, and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

McKinnon v Woolworths Group Ltd [2025] NSWPICMP 156

Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories (social and recreational activities) because of an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed.

Decision date: 12 March 2025 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Mathias v Highland Pine Products Pty Ltd [2025] NSWPICMP 157

Workplace Injury Management and Workers Compensation Act 1998; appeal by worker against 14% whole person impairment (WPI) assessment; whether the 1/10th deduction pursuant to section 323 was properly made; whether the 0% finding for scarring was properly made; whether the Medical Assessor (MA) had failed to award WPI in respect of the effects of treatment; Held – section 323 deduction made on assumption; observations as to adequacy of [11] of the Medical Assessment Certificate (MAC) template; worker expert opinion affected by the dicta in Wingfoot Australia Partners Pty Ltd v Kocak but suggested more than one conclusion available; Campbelltown City Council v Vegan, and Vitaz v Westform (NSW) Pty Ltd applied; MA failed to give adequate reasons; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd, and Fire & Rescue NSW v Clinen referred to; evidence before the MA insufficient to justify deduction; MA finding regarding scarring confirmed; submission made on inadequate factual background and MA reasoning adequate; chapter 14 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guides) applied; submission as to the effects of treatment misconceived as worker on medication for pain relief which medication was specifically excluded from chapter 1.32 of the Guides; Medical Assessment Certificate revoked and section 323 deduction removed.

Decision date: 12 March 2025 | Panel Members: Member John Wynyard, Dr Drew Dixon, and Dr Alan Home | Body system: Lumbar Spine, and Scarring (TEMSKI)

Quintiliani-Johns v Secretary, Department of Education [2025] NSWPICMP 158

Supreme Court remitter following Quintiliani-Johns v Secretary, Department of Education; challenge to assessment under psychiatric impairment rating scale (PIRS) of self-care and personal hygiene, and social and recreational activities; consideration of clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); whether deduction could be calculated in accordance with the PIRS; Held – percentage of pre-existing impairment cannot be assessed under PIRS; deduction of one-tenth made; Medical Assessment Certificate revoked.

Decision date: 12 March 2025 | Panel Members: Member Parnel McAdam, Dr John Lam-Po-Tang, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Zahiri v Rainbow Painting & Decorating Services Pty Ltd [2025] NSWPICMP 159

Claim for deterioration; whether evidence shows basis for deterioration; consideration of assessments on which claim was based, the Medical Assessment Certificate (MAC), and fresh evidence; Riverina Wines v Workers Compensation Commission of New South Wales applied; appeal limited to body parts assessed by Certificate of Determination; O’Callaghan v Energy World Corporation Ltd discussed; Held – no evidence of deterioration; Medical Assessment Certificate confirmed.

Decision date: 12 March 2025 | Panel Members: Member Parnel McAdam, Dr Todd Gothelf, and Dr Tommasino Mastroianni | Body system: Cervical Spine, Lumbar Spine, Left Upper Extremity (Shoulder), and Scarring (TEMSKI)

Nicolaou v Scarborough Park Auto Care [2025] NSWPICMP 160

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by making a deduction under section 323(1); whether MA erred by rating the appellant’s impairment as Class 1 rather than Class 2 under Table 13-11 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5); whether MA ought to have had regard to the appellant’s capacity to work when considering the effect the appellant’s injury had on his activities of daily living; Held – MA did not err by not having regard to the appellant’s capacity to work because part 1.2a of the AMA 5 instructs to the contrary; Appeal Panel held the MA did not err by rating the appellant’s impairment as Class 1 under Table 13-11 of the AMA 5 because he found the appellant’s symptoms were mild; Appeal Panel held MA erred by making a deduction under section 323(1) because the appellant did not have a pre-existing condition; Medical Assessment Certificate revoked.

Decision date: 13 March 2025 | Panel Members: Member Marshal Douglas, Dr Sophia Lahz, and Dr Michael Davies | Body system: Nervous System

AMA Group Solutions Pty Ltd v Ibrahim [2025] NSWPICMP 161

Workplace Injury Management and Workers Compensation Act 1998; appellant employer alleged assessment made on the basis of incorrect criteria and demonstrable error in relation to failure to consider the documentation; in respect of previous injuries to the cervical spine, lumbar spine and left shoulder, failure to make any deduction pursuant to section 323; miscalculation of the assessment of impairment of the right shoulder; Held – Appeal Panel satisfied that there was a failure to consider the evidence relating to prior injury in a motor vehicle accident; Appeal Panel proceeded to make deductions pursuant to section 323 in respect of the cervical spine and lumbar spine; Appeal Panel corrected the miscalculation made in assessment of right shoulder; Medical Assessment Certificate revoked.

Decision date: 13 March 2025 | Panel Members: Member Carolyn Rimmer, Dr Gregory McGroder, and Dr Roger Pillemer | Body system: Cervical Spine, Lumbar Spine, Right Upper Extremity (Shoulder), Left Upper Extremity (Shoulder), Right Lower Extremity (Knee), and Left Lower Extremity (Knee),

Astill v Double J Relocations Pty Ltd [2025] NSWPICMP 162

Referral for assessment of left lower extremity, right lower extremity, and scarring (TEMSKI); Medical Assessor (MA) did not assess left lower extremity or right lower extremity because she found inconsistency on examination; MA assessed scarring (TEMSKI) at 2% whole person impairment (WPI) and issued Medical Assessment Certificate (MAC) assessing 2% WPI; appellant appealed on the basis of demonstrable error as MA was required to provide a combined assessment of all body parts; respondent agreed with the appellant’s submissions and did not oppose the appeal; Held – MAC contained a demonstrable error; MAC revoked; new MAC issued certifying appellant had not reached maximum medical improvement and impairment is not fully ascertainable at this time.

Decision date: 13 March 2025 | Panel Members: Senior Member Kerry Haddock, Dr Andrew Porteous, and Dr Doron Sher | Body system: Scarring (TEMSKI), Left Lower Extremity (Left Ankle), and Right Lower Extremity (Right Knee)

Bell View Park Stud Pty Ltd v Watts [2025] NSWPICMP 163

Workplace Injury Management and Workers Compensation Act 1998; assessment of the lumbar spine; the employer appealed submitting insufficient findings and inadequate reasons for finding persistent radiculopathy post-surgery for allowing 3% whole person impairment (WPI) for activities of daily living (ADLs) and making no deduction under section 323 in respect of the pre-existing abnormality of the spine; Held – Appeal panel found error in respect of the allowance for radiculopathy; Appeal Panel confirmed the 3% WPI for ADLs and made a deduction of one-tenth under section 323; Medical Assessment Certificate revoked.

Decision date: 13 March 2025 | Panel Members: Member Jane Peacock, Dr Drew Dixon, and Dr Gregory McGroder | Body system: Lumbar Spine

Malcolm v Narasell Pty Ltd as Trustee for Heath Newton Family Trust [2025] NSWPICMP 164

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by making a deduction of 50% under section 323(1) for pre-existing osteoarthritis; Appeal Panel noted that the appellant’s injury arose as a consequence of the work he did over the course of more than thirty years and that the appellant’s pre-existing disease at the commencement of his employment was in all likelihood mild; Held – the MA erred by not assuming in accordance with section 323(2) that the deductible portion for the purpose of section 323(1) is 10%; Medical Assessment Certificate revoked.

Decision date: 14 March 2025 | Panel Members: Member Marshal Douglas, Dr Gregory McGroder, and Dr James Bodel | Body system: Left Knee, and Right Knee

Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank [2025] NSWPICMP 171

Workplace Injury Management and Workers Compensation Act 1998; assessment of 17% whole person impairment (WPI) for psychiatric injury with a deduction of one half made pursuant to section 323; worker submitted that Medical Assessor (MA) applied incorrect criteria in the deduction of one half including relying on a predisposition as a basis for the deduction; Cullen v Woodbrae Holdings Pty Ltd considered; Appeal Panel satisfied that the MA applied incorrect criteria and made a demonstrable error in that she relied in part upon assumptions or hypotheses in considering any contribution made by a pre-existing condition to the assessment of impairment; worker also submitted that there was a failure by the MA to engage with clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); the Appeal Panel accepts that the MA did not refer to clause 11-10 of the Guidelines and therefore failed to properly engage with the Guidelines at clause 11.10; worker re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 17 March 2025 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Broomhall v State of New South Wales (Fire & Rescue NSW) [2025] NSWPICMP 172

Workplace Injury Management and Workers Compensation Act 1998; assessment of 7% whole person impairment (WPI) for a primary psychiatric injury; appeal by worker in respect of the psychiatric impairment rating scale (PIRS) of social and recreational activities, concentration persistence and pace, and employability as well as in respect of a failure to diagnose an alcohol use disorder and application of a section 323 deduction for a pre-existing condition; Held – Appeal Panel satisfied that the Medical Assessor (MA) assessed the three scales in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and there was no demonstrable error in his assessment of social and recreational activities, concentration persistence and pace, and employability; Appeal Panel satisfied the MA did not make a demonstrable error or apply incorrect criteria in not making a diagnosis of alcohol abuse disorder; Appeal Panel satisfied that there was no demonstrable error in application of a one-tenth deduction for a pre-existing condition; Medical Assessment Certificate confirmed.

Decision date: 17 March 2025 | Panel Members: Member Carolyn Rimmer, Dr Graham Blom, and Professor Nicholas Glozier | Body system: Psychological/Psychiatric

Dekker v Shellharbour City Council [2025] NSWPICMP 173

Workplace Injury Management and Workers Compensation Act 1998; assessment of the right lower extremity (knee); worker appealed the one-tenth deduction under section 323 in circumstances where the Medical Assessor had found an indivisible impairment between a frank injury and a disease injury; Held – Appeal Panel considered the making of a one-tenth deduction under section 323 to be in error; Medical Assessment Certificate revoked.

Decision date: 18 March 2025 | Panel Members: Member Jane Peacock, Dr Christopher Oates, and Dr Robert Kuru | Body system: Right Lower Extremity, and Scarring

Jasmin v Cleaners New South Wales Pty Ltd [2025] NSWPICMP 174

Workplace Injury Management and Workers Compensation Act 1998; threshold dispute; deterioration under section 327(3)(a) as a result of total knee replacement; re-examination by consent; Held – Medical Assessment Certificate revoked.

Decision date: 18 March 2025 | Panel Members: Member Catherine McDonald, Dr Rob Kuru, and Dr Christopher Oates | Body system: Right Lower Extremity (Knee), Lumbar Spine, and Scarring (TEMSKI)

JTE Enterprises Pty Ltd (t/as Mount Gibraltar Preschool) v Brown [2025] NSWPICMP 175

Respondent suffered injury to her right ankle; her claim for compensation for permanent impairment was based on her meeting the criteria for a diagnosis of complex regional pain syndrome (CRPS); Medical Assessor (MA) found the appellant did not meet the criteria at the time of assessment and assessed her impairment by reference to restricted range of movement in knee and ankle joints; whether MA erred by including in his assessment the impairment the respondent had due to restricted range of movement of her knee joint; Held – Appeal Panel held the MA did not make an error; Medical Assessment Certificate confirmed.

Decision date: 18 March 2025 | Panel Members: Member Marshal Douglas, Dr Doron Sher, and Dr Tim Anderson | Body system: Right Lower Extremity, Lumbar Spine, and Complex Regional Pain Syndrome

State of New South Wales (Far West Local Health District) v Rinaudo [2025] NSWPICMP 176

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories (social and recreational activities, and social functioning) and limiting the deduction to one-tenth under section 323; Held – error found in the assessment of social and recreational activities as a Class 3 when it should have been assessed as a Class 2; no error in the social functioning assessment and the deduction of one-tenth; Medical Assessment Certificate revoked.

Decision date: 18 March 2025 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier, and Dr John Lam Po-Tang | Body system: Psychological/Psychiatric

Motor Accidents Merit Review  Decision

Diakanastasis v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 8

Motor Accident Injuries Act 2017; merit review; dispute about whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1); whether travel expenses are reasonable and necessary in order to obtain treatment; Held – section 3.24(1)(b); the reviewable decision is set aside.

Decision date: 17 March 2025 | Merit Reviewer: Katherine Ruschen

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