Legal Bulletin No. 207
This bulletin was issued on 17 April 2025
Issued 17 April 2025
Welcome to the two hundred and seventh 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
Rogers v Health Services Union NSW [2025] NSWSC 291
Administrative law; judicial review of decision of medical Appeal Panel; where Appeal Panel revoked a “medical assessment certificate” on the basis of “demonstrable error” and issued a new certificate; where plaintiff experienced psychological “permanent impairment”; where dispute about degree of impairment; consideration of Travel under the Psychiatric Impairment Rating Scale classes; whether examples in guidelines prescriptive; Held – the Appeal Panel’s Medical Assessment Certificate dated 16 August 2024 in matter number W983/24 is set aside; the matter is remitted to the third defendant for referral to a differently constituted Appeal Panel chosen under section 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW); the first defendant is to pay the plaintiff’s costs; no order as to costs is made in respect of the second and third defendants.
Decision date: 31 March 2025 | Before: Elkaim AJ
Wood v Insurance Australia Group Limited trading as NRMA Insurance [2025] NSWSC 320
Administrative law; judicial review; referral of separate and distinct medical assessment matters under section 58 of the Motor Accidents Compensation Act 1999 (NSW); section 58(1)(a) and (b) certificate confined to whether treatment relates to injury caused by motor vehicle accident and whether the treatment was reasonable and necessary in the circumstances; referral under section 58(1)(b) is not a determination of causation of injury generally; assessment of whole person impairment is a different medical assessment matter under section 58(1)(d) and includes separate determination of causation; no jurisdictional error; no legal unreasonableness; no practical injustice; proceedings dismissed; Held – pursuant to the Uniform Civil Procedure Rules 2005 (NSW) rule 59.10(2), the time in which the plaintiff may commence these proceedings is extended up to and including 13 September 2024; the proceedings be dismissed; the plaintiff is to pay the costs of the first defendant.
Decision date: 4 April 2025 | Before: Lonergan J
Department of Education v Mansfield [2025] NSWSC 325
Administrative law; review of medical assessment by appeal panel; judicial review of appeal panel decision; assessment of whole person impairment; deduction for previous injury or pre-existing condition or abnormality; jurisdictional error and error of law on face of the record; claims of misconception of statutory task and no evidence; Held – the further amended summons dated 1 April 2025 is dismissed; the plaintiff pay the first defendant’s costs.
Decision date: 7 April 2025 | Before: Griffiths AJ
Atwal v Insurance Australia Limited trading as NRMA Insurance (No 2) [2025] NSWSC 350
Costs; whether departure from usual costs order is warranted; where defendant is not an ordinary litigant; where it is claimed that defendant did not disclose reason for decision until the hearing; whether misconduct warranting an order that each party bear its own costs occurred; not satisfied that any departure from usual costs order is warranted given the plaintiff’s pursuit of a construction of the Motor Accident Injuries Act 2017 (NSW) which could not be accepted; Held – Mr Atwal bear the insurer’s costs of the proceedings, as agreed or assessed.
Decision date: 11 April 2025 | Before: Schmidt AJ
Presidential Member Decision
Tomago Aluminium Company Pty Limited v Ryan [2025] NSWPICPD 31
Workers compensation; appeal against Member’s decision in relation to incapacity; adequacy of reasons; section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998; Rule 78 of the Personal Injury Commission Rules 2021; Fisher v Nonconformist Pty Ltd considered and applied; no error found in relation to the Member’s treatment of bank records, surveillance footage and other material; error made by Member did not affect the result; Paterson v State of New South Wales (NSW Police Force) considered and applied; Dranichnikov v Minister for Immigration and Multicultural Affairs; whether expenditure in bank records reveals a greater functionality or capacity; failure to identify established facts; Held – I extend the time for the respondent to file a Notice of Opposition to the appeal to 19 July 2024; the Certificate of Determination dated 9 May 2024 is confirmed.
Decision date: 4 April 2025 | Before: President Judge Phillips
Motor Accidents non-Presidential Member Decision
Halabi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 128
Motor Accident Injuries Act 2017; assessment of claim for damages for past and future economic loss arising out of an accident on 22 December 2017; claimant had been involved in two previous motor vehicle accidents in 1999 and 2012 with medical evidence to the effect that he was permanently unfit for work as a result of those accidents; claimant had provided no evidence by way of invoices and receipts for any income which he claimed he had earned prior to the subject accident; claimant had similar injuries in the 2012 accident and the accident the subject of this claim in 2017; Held –claimant had not proved any past or future economic loss and no allowance made.
Decision date: 7 April 2025 | Member: Alexander Bolton
Workers Compensation non-Presidential Member Decisions
Jomaa v Borg Manufacturing Pty Ltd [2025] NSWPIC 122
Workers Compensation Act 1987; injury; competing factual chronology; Held – applicant did not sustain injuries in the course of his employment with the respondent; injury did not occur; award for the respondent.
Decision date: 2 April 2025 | Member: Mitchell Strachan
Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Workers Compensation Act 1987 (1987 Act);claim for interest under section 109 of the 1998 Act; previous ex-tempore determination of apportionment of lump sum pursuant to section 25(1)(a) of the 1987 Act; 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.
Decision date: 3 April 2025 | Principal Member: Josephine Bamber
Sowden v ComfortDelGro Corporation Australia Pty Ltd [2025] NSWPIC 125
Workers Compensation Act 1987; claim for weekly compensation and cost of cervical spine surgery in respect of aggravation of the applicant’s cervical spine condition; Held – the applicant has not recovered from the aggravation of his cervical spine condition; the applicant has no current work capacity and without surgery this is likely to continue indefinitely; proposed cervical spine surgery is reasonably necessary as a result of the injury.
Decision date: 4 April 2025 | Member: Fiona Seaton
Hayes v Secretary (Department of Education) & Ors [2025] NSWPIC 131
Workers Compensation Act 1987; sections 4 and 19B; whether Michelle Hayes contracted COVID-19 in the course of her employment and whether her employment was the main contributing factor to the contraction of the disease; rebuttable presumption in section 19B that Michelle Hayes contracted COVID-19 in the course of her employment and that her employment was the main contributing factor to the contraction of the disease; section 19B presumption not displaced; Nguyen v Cosmopolitan Homes, Briginshaw v Briginshaw, Curtis v Harden Shire Council, Geyer v Redeland Pty Ltd, Singh v FTW Products Pty Ltd, Jones v Dunkel, Manly Council v Byrne, State Bank of NSW v Brown, Seltsam Pty Limited v McGuiness, and James Hardie & Coy Pty Limited v McGuiness cited; Held – Michelle Hayes contracted COVID-19 in the course of her employment with the first respondent and that her employment was the main contributing factor to the contraction of the disease; Michelle Hayes died as a result of the COVID-19 infection that she contracted in the course of her employment with the first respondent.
Decision date: 8 April 2025 | Member: John Turner
Setia v Aldi Stores [2025] NSWPIC 133
Claim for injury to right shoulder (admitted) and consequential condition in left shoulder (denied); whether assumptions made by claimant’s treating surgeon and medical expert were supported by evidence; Held – fair climate for assumptions found in several areas of the evidence; BFZ v Inner West Council considered and applied.
Decision date: 8 April 2025 | Member: John Wynyard
Motor Accidents Medical Review Panel Decisions
QBE Insurance (Australia) Limited v Soldo [2025] NSWPICMP 235
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; finding cervical spine radiculopathy but that the accident did not cause referred injury; whether the claimant suffered a threshold injury as cervical spine and lumbar spine injuries with radiculopathy; radicular symptoms soon after accident but no verifiable radiculopathy; Review Panel re-examination showed no objective verifiable radiculopathy in line with the Motor Accident Guidelines (Guidelines); David v Allianz Australia Insurance Ltd considered; whether earlier examinations complied with Guidelines to identify radiculopathy; Review Panel considered authorities on causation; Held – referred injuries are not threshold; MAC revoked; new certificate issued.
Decision date: 3 April 2025 | Panel Members: Member Terence O’Riain, Dr Ian Cameron, and Dr Les Barnsley | Injury module: Spine
Mughal v Allianz Australia Insurance Limited [2025] NSWPICMP 236
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant involved in a motor accident when thrown from motor bike suffering extensive leg injuries; complaints of lumbar spine made contemporaneous to accident; insurer’s contrary submissions rejected; delayed onset of sciatica explained by altered walking gait over an extensive period causing a herniation of an injured disc; treatment dispute on proposed lumbar spine discectomy; claimant re-examined by Medical Assessor; findings of ongoing neurological signs in left leg; motor accident a material contribution to the need for treatment; AAI Limited v Phillips applied; proposed surgery is reasonable and necessary; principles in Diab v NRMA Ltd applied; proposed surgery well accepted for herniated disc; likely effectiveness of surgery; Held – MAC revoked; new certificate issued; treatment both reasonable and necessary and related to the injuries caused by the motor accident.
Decision date: 3 April 2025 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr Shane Moloney | Treatment Type: Surgery
AAI Limited t/as GIO v Bruce [2025] NSWPICMP 237
Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); degree of permanent impairment; claimant sustained injuries in a motor vehicle accident as a front-seat passenger; claimant underwent left total hip replacement five years post-accident; Medical Assessor (MA) certified 15% whole person impairment (WPI); Held – Review Panel satisfied that left total hip replacement due to injury related to the motor accident; Review Panel satisfied that MA’s finding of 15% WPI was appropriate utilising Tables 64 and 65 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Review Panel adopts that finding without re-examination as causation was crucial issue; Review Panel finds lumbar spine injury not resolved but with 0% WPI; injuries to left knee and pelvis found not caused; MAC revoked and replaced.
Decision date: 3 April 2025 | Panel Members: Member Gary Victor Patterson, Dr Christopher Oates, and Dr Mohammed Assem | Injury module: Spine, and Lower Limb
Witt v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 238
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) certified injuries to the cervical spine, thoracic spine, lumbar spine, and groin were threshold injuries; MRI six months post-accident demonstrated compression fracture of T12 and L1 and disc protrusion with annular tear at L5-S1; Held – test for causation as per Briggs v IAG Limited Trading as NRMA Insurance considered; soft tissue injury to cervical spine and muscular strain groin were threshold injuries; T12 and L1 compression fractures caused by the accident; disc protrusion with annular tear not acute but degenerative and not caused by accident; MAC revoked; new certificate issued; soft tissue injury to cervical spine and muscular strain of groin caused by the accident are threshold injuries; lumbar spine compression fracture of L1 and thoracic spine compression fracture of T12 are non-threshold injuries.
Decision date: 4 April 2025 | Panel Members: Member Susan McTegg, Dr Clive Kenna, and Dr David Gorman | Injury module: Spine, and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Rachak [2025] NSWPICMP 239
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of threshold injury and treatment dispute; insurer’s application for review under section 7.26; claimant sustained physical injuries and alleged psychological injuries; first record 10-months after accident; new GP notes “PTSD” symptoms; 3-years after accident usual GP records symptoms; no treatment for 4-years; claimant alleged psychological symptoms after previous work-related claim and earlier motor accident claim; Held – claimant did not have post-traumatic stress disorder; claimant sustained major depressive disorder before car accident not aggravated in current accident; claimant sustained adjustment disorder which is a threshold injury; single psychological consultation requested in 2023 not allowed because claimant had consultation with a different psychologist in 2024; MAC revoked; new certificate issued; no issue of principle.
Decision date: 4 April 2025 | Panel Members: Member Belinda Cassidy, Dr Matthew Jones, and Dr Steven Yeates | Injury module: Mental and Behavioural; Treatment Type: Psychological Treatment
Allianz Australia Insurance Limited v Pietryga [2025] NSWPICMP 240
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether psychological injury caused by the motor accident is a threshold injury; whether injuries caused by the motor accident give rise to whole person impairment (WPI) greater than 10%; regard made to pain symptoms as opposed to psychological symptoms for the purposes of application of the psychiatric impairment rating scale (PIRS) criteria; Held – diagnosis of major depressive disorder, somatic symptom disorder with predominant pain and alcohol use (resolved); WPI assessed at 15%; MAC revoked.
Decision date: 4 April 2025 | Panel Members: Member Elizabeth Medland, Dr Wayne Mason, and Dr Surabhi Verma | Injury module: Mental and Behavioural
Rana v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 241
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; claimant’s vehicle was stationary when it was rear-ended; claimant had four previous motor accidents (in 2017, 2018, 2019 and 2020) before the subject motor accident in 2021; claimant had a lumbar spine injury before the subject accident; MRI radiology before and after the subject accident showed an L5/S1 disc protrusion; Review Panel was not satisfied that there was a further disc tear; Review Panel satisfied that the subject accident caused an exacerbation of pre-existing L5/S1 disc disease; no radiculopathy at Review Panel’s re-examination or in the documentation; Held – MAC revoked; new certificate issued; injuries caused by the motor accident are threshold injuries.
Decision date: 4 April 2025 | Panel Members: Member Jeremy Lum, Dr David Gorman, and Dr Shane Moloney | Injury module: Spine, and Lower Limb
Allianz Australia Insurance Limited v Truong [2025] NSWPICMP 246
Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); section 7.23(1); radiculopathy; pain left arm; cervical spine; strong pain to cervical spine region; non-threshold injury consequent on spinal injury; criteria for radiculopathy; claimant experienced left-sided neck pain; symptoms involving numbness to fingers of the left hand; examination by treating neurosurgeon identified signs of radiculopathy; pathology partly resolved and symptoms substantially dissipated; radiculopathy present following the accident but now criteria for radiculopathy is not present; Held –non-threshold injury confirmed; MAC revoked; new certificate issued.
Decision date: 8 April 2025 | Panel Members: Member Hugh Macken, Dr Les Barnsley, and Dr Clive Kenna | Injury module: Spine, and Upper Limb
Workers Compensation Medical Appeal Panel Decisions
Szilagyi v Blacktown City Council [2025] NSWPICMP 230
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) erred in whole person impairment (WPI) assessment of four of the psychiatric impairment rating scale (PIRS) categories namely self-care and personal hygiene, travel, concentration, persistence and pace, and employability; Held – insufficient history from MA; re-examination required; errors in some categories; MAC revoked; new certificate issued.
Decision date: 2 April 2025 | Panel Members: Member Deborah Moore, Dr John Lam-Po-Tang, and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Deason v State of New South Wales (NSW Police Force) [2025] NSWPICMP 231
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; whether incorrect criteria and demonstrable error in assessments under two of the psychiatric impairment rating scale (PIRS) categories; Held – Appeal Panel found error and a re-examination was necessary; MAC revoked; new certificate issued.
Decision date: 3 April 2025 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Ash Takyar | Body system: Psychological/Psychiatric
Smith v Crown Freighters Pty Ltd [2025] NSWPICMP 232
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) assessed in accordance with Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); scarring; whether MA appropriately assessed scarring in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MAC confirmed.
Decision date: 3 April 2025 | Panel Members: Member Parnel McAdam, Dr Tim Anderson, and Dr James Bodel | Body system: Right Lower Extremity, and Scarring
Alm v Nimue Skin Pty Ltd [2025] NSWPICMP 233
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); deterioration of condition resulting in a higher degree of permanent impairment; worker had knee and hip replacements since previous assessment; prima facie evidence of deterioration; worker re-examined by member of Appeal Panel; Held – MAC revoked on basis of deterioration; new certificate issued.
Decision date: 3 April 2025 | Panel Members: Member Parnel McAdam, Dr Roger Pillemer, and Dr Gregory McGroder | Body system: Left Lower Extremity (Hip and Knee), and Right Lower Extremity (Hip and Knee)
Catering Industries (NSW) Pty Ltd v George [2025] NSWPICMP 234
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) assessed DRE IV in respect of a Type 2 odontoid process fracture at C2 level on the basis that the classification of DRE IV was a “best fit” as an internal fixation of the odontoid process fracture did not have an impairment rating; MA failed to adequately consider whether the criteria in the other categories, particularly, cervical category III in Table 15-5 applied in this case; Appeal Panel found error in determination by the MA that whole person impairment (WPI) should be determined by reference to DRE Cervical Category IV in circumstances where there was an acute fracture of the single C2 vertebral segment; assessment was made on the basis of incorrect criteria; Held – MAC revoked; new certificate issued.
Decision date: 3 April 2025 | Panel Members: Member Carolyn Rimmer, Dr Drew Dixon, and Dr Margaret Gibson | Body system: Cervical Spine, and Scarring (TEMSKI)
Holden v Lake Macquarie City Council [2025] NSWPICMP 242
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) misapplied section 323; Appeal Panel did not accept the MA misapplied section 323 or failed to provide a clear path of reasoning in making a one-third deduction under section 323; Appeal Panel determined it was not necessary for the appellant to undergo a further medical examination as the Appeal Panel did not consider the MA’s assessment was made on the basis of incorrect criteria; Held – MAC confirmed.
Decision date: 4 April 2025 | Panel Members: Member Jacqueline Snell, Dr James Bodel, and Dr Roger Pillemer | Body system: Left Lower Extremity
Richards v Baptistcare NSW & ACT [2025] NSWPICMP 243
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of 5% whole person impairment (WPI) of the left upper extremity; worksheet referred to in the MAC not attached; Appeal Panel satisfied that this was not a material error; appellant also appealed on the basis that the Medical Assessor (MA) took into account the range of motion in the contralateral joint without providing a rationale for doing so as required in clause 2.20 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); Appeal Panel accepts that the MA did not explain his rationale for his decision to use the impairment values corresponding to the uninvolved joint as a baseline and subtract from the calculated impairment for the involved joint; failure to explain the rationale is a demonstrable error and application of incorrect criteria; Held – MAC revoked; new certificate issued.
Decision date: 7 April 2025 | Panel Members: Member Carolyn Rimmer, Dr James Bodel, and Dr David Crocker | Body system: Left Upper Extremity
Fisher v Redcape Hotel Group Pty Ltd [2025] NSWPICMP 244
Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychiatric injury; appeal in respect of five of the psychiatric impairment rating scales (social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability); matters that Medical Assessor (MA) relied upon from the surveillance report not put to the worker; worker’s statement addressing issues in surveillance report not considered by MA; error in the assessment of all five scales as the reasoning process for assessing was unable to be made out; worker re-examined; Held – MAC revoked; new certificate issued.
Decision date: 8 April 2025 | Panel Members: Member Carolyn Rimmer, Professor Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric
Motor Accidents Merit Review Decision
AAI Limited t/as GIO v CON [2025] NSWPICMR 6
Motor Accident Injuries Act 2017; merit review; dispute under section 6.24; whether a request for mobile service provider details is reasonable and whether the claimant has a reasonable excuse for failing to comply; insurer has denied liability on basis that injuries do not arise from a motor vehicle accident; inconsistencies in the evidence including a report to ambulance and hospital staff that injuries arose from a fall from stairs; Held – request for the claimant to provide the name of his mobile service provider is reasonable; will potentially assist in obtaining geolocation information to reconcile with claimant’s version of events.
Decision date: 27 February 2025 | Merit Reviewer: Elizabeth Medland
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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