Legal Bulletin No. 43

Issued 13 January 2022

Welcome to the forty-third 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 Decisions

ACR v Grace Worldwide Pty Ltd [2021] NSWPICPD 44

WORKERS COMPENSATION – Acceptance of evidence in the absence of cross-examination; Aluminium Louvres and Ceilings Pty Ltd v Zheng applied; acceptance of and weight to be afforded to evidence; principles discussed in Raulston v Toll Pty Ltd applied; section 11A of the Workers Compensation Act 1987; wholly or predominantly caused by action with respect to the provision of employment benefits; JobKeeper benefits; BB v Secretary, Department of Education discussed; Northern NSW Local Health Network v Heggie, Canterbury Bankstown Council v Gazi discussed and applied.

Decision date:7 December 2021 | Before: Deputy President Elizabeth Wood

McDonald v Woolworths Ltd [2021] NSWPICPD 45

WORKERS COMPENSATION – Causation; alleged factual error in the assessment of medical evidence; section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998.

Decision date:10 December 2021 | Before: Deputy President Michael Snell

Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46

WORKERS COMPENSATION – Section 17 of the Workers Compensation Act 1987; requirement to give notice of further injury; Sukkar v Adonis Electrics Pty Ltd discussed, Blayney Shire Council v Lobley discussed and applied; whether the employment materially contributed to the need for provision of further hearing aids; Bluescope Steel (AIS) Pty Ltd v Sekulovski discussed and applied.

Decision date:13 December 2021 | Before: Deputy President Elizabeth Wood

Geary v UPS Pty Ltd [2021] NSWPICPD 47

WORKERS COMPENSATION – Application of the principles of Anshun estoppel; whether claim estopped by failure in original action to plead a disease injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; Port of Melbourne Authority v Anshun Pty Ltd; Habib v Radio 2UE Sydney Pty Ltd; Secretary, Department of Communities and Justice v Miller & Anor (No 5) applied.

Decision date:17 December 2021 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Al-Kes-Butrus v NRMA [2021] NSWPIC 510

Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); Schedule 2, clause (3)(g) of the MAI Act; section 5R of the Civil Liability Act 2002; residential area – 50 kmph speed limit; insured driver made right-hand turn onto incorrect side of the road colliding with claimant pedestrian; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; insured driver in breach of Road Rules 2014; claimant wearing ear buds - no causal consequence in the motor accident; Held – no contributory negligence on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.

Decision date: 19 October 2021| Member: Maurice Castagnet

Wiegold v Allianz Australia Insurance Limited [2021] NSWPIC 512

Motor Accident Injuries Act 2017; damages claim; claimant witnessed death of colleague run down by bus driven by fellow trainee bus driver; claimant developed post-traumatic stress disorder and alcohol misuse disorder; claim made under pure mental harm provisions of Civil Liability Act 2002; no issue as to liability and damages for non-economic loss and past and future economic losses; issues about retirement age; pre-accident weekly earnings; whether residual earning capacity was capable of being exercised; Held - non-economic loss assessed at $250,000, calculated sum for past loss of earnings and future; no real issue of principle.

Decision date: 8 December 2021| Member: Belinda Cassidy

Watton-Cerruto v Insurance Australia Limited t/as NRMA Insurance Limited [2021] NSWPIC 517

Claimant made a right-hand turn into a driveway; collision when overtaken by unidentified vehicle; Claimant injured; ten month delay in making a claim for statutory benefits; application for a late claim for statutory benefits; Nominal Insurer denies liability; whether a due enquiry and search has been made for unidentified vehicle; whether the Claimant has provided a full and satisfactory explanation for the delay in making her claim; sections 2.30 , 6.2 and 6.13 of the Motor Accident Injuries Act 2017 (MAI Act); Held – late claim for statutory benefits may be made under subsection 6.13(3)(a) of the MAI Act; Claimant has provided a full and satisfactory explanation for the delay; Claimant’s explanation for delay was search for unidentified vehicle and continuing injuries after surgery; claim against the Nominal Defendant under section 2.30 of the MAI Act; due inquiry and search not required for unidentified motor vehicle as the claim is for statutory benefits(not damages); regulated legal costs awarded, $1,700 plus GST; penalty legal costs refused.

Decision date: 10 December 2021| Member: Ray Plibersek

Latif v AAI Limited t/as GIO [2021] NSWPIC 523

Miscellaneous claims assessment matter; late claim for statutory benefits; accident 26 July 2018; claim made on 16 June 2021; sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017; prior CTP claim; Held – claimant has provided neither full nor satisfactory explanation for the delay.

Decision date: 14 December 2021| Member: Brett Williams

Smith v AAI Limited t/as GIO [2021] NSWPIC 531

Application for a late claim for an assessment; more than three years after the motor accident; sections 2.30, 6.2, 6.14 and 7.33 of the Motor Accident Injuries Act 2017; Claimant truck driver in a collision with unidentified semi-trailer truck; injured at work driving a truck; received workers compensation benefits; unaware of entitlement to make a CTP claim until advised by her lawyer; claim made shortly after receiving legal advice; whether a full and satisfactory explanation for delay in making the application, Held - Claimant has a full and satisfactory explanation; delay due to lack of knowledge that she could make a CTP claim; late claim may be made more than three years after the date of the motor accident; due inquiry and search to establish the identity of unidentified truck driver who struck Claimant’s truck; legal costs awarded, $NIL.

Decision date: 21 December 2021| Member: Ray Plibersek

Workers Compensation non-Presidential Member Decisions

ACN v Secretary, Department of Communities and Justice [2021] NSWPIC 511

Apportionment of the death benefit; payment of interest; amounts payable to minors to be held in trust; Held – apportionment and trust deed approved.

Decision date: 9 November 2021| Member: Catherine McDonald

Elliot v Franklins Pty Ltd [2021] NSWPIC 513

Claim for permanent impairment compensation and medical and treatment expenses; respondent alleges effect of accepted lumbar injury has passed and applicant’s ongoing serious impairments relate to pre-existing conditions; respondent also denies alleged cervical spine injury together with consequential conditions to knees, shoulders and gastro-intestinal system; Held - the effects of the lumbar spine injury have passed and had passed before the applicant underwent surgery in 2014; the applicant suffered an injury to her cervical spine in the incident at issue, however, on the applicant’s own case that injury does not meet the threshold for permanent impairment compensation; the claims for consequential condition to the shoulders, hips and knees together with the gastrointestinal system are not made out; award for the respondent.

Decision date: 9 December 2021| Member: Cameron Burge

Catalanotto v Transdev Sydney Ferries Pty Ltd [2021] NSWPIC 514

Claim for weekly benefits and medical expenses regarding alleged consequential tear of biceps tendon at home as a result of a work-related right elbow injury; the applicant was lifting a water pressure system at home when he tore his right biceps tendon; he had suffered a right elbow injury at work 11 days earlier; the applicant alleges the torn tendon came about because he was manoeuvring the pressure system in a different manner to how he would normally use his right arm, owing to the effects of the work injury; Held - on a common-sense basis, the totality of the evidence establishes a causal connection between the work injury and the consequential torn tendon; Kooragang Cement Pty Ltd v Bates and  EMI (Aust) Limited v Bes followed; the respondent offered no medical evidence in support of its case, however, no inference is taken in circumstances where the respondent’s case is the applicant has not satisfied on his own evidence the requisite onus of proof; Woolworths v Christopher-Coates followed; however, the applicant has discharged the onus of proof in establishing the relevant causal link; award for the applicant on the claims for weekly payments and medical expenses.

Decision date: 9 December 2021| Member: Cameron Burge

Savage v ECO Septic Pty Ltd [2021] NSWPIC 515

Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to dismissal; worker alleged bullying and harassment during course of employment before termination during probation period; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair; Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie and Attorney General’s Department v K discussed and applied; Held - worker’s injury caused by all events at work, not merely termination; in the alternative, respondent’s actions were not reasonable; award for applicant for weekly compensation and medical expenses, referral to a Medical Assessor.

Decision date: 9 December 2021| Senior Member: Glenn Capel

Durrant v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC 516

Claim for permanent impairment compensation; both cervical spine and right shoulder injuries admitted, and the subject of referral for medical assessment; alleged left shoulder consequential condition is disputed; Held - on balance, the left shoulder condition arose as a result of the accepted right shoulder injury; it is not necessary for the applicant to demonstrate pathological change in establishing a consequential condition; Moon v Conmah Pty Ltd discussed; the preponderance of the medical evidence, including that of the surgeon who has treated the applicant over many years, supports the finding of a causal link between the applicant’s right shoulder injury in 2006, the surgery which she had for that injury in 2018 and the onset of left shoulder symptoms in 2019 after a history of overuse of the left shoulder/compensation; the right shoulder and cervical spine injuries together with the left shoulder consequential condition are remitted to the President for referral to a Medical Assessor on terms as set out in the Certificate of Determination.

Decision date: 9 December 2021| Member: Cameron Burge

Bruscino v Workers Compensation Nominal Insurer (iCare) & others [2021] NSWPIC 518

Claim for weekly payments arising from frank injury and nature and conditions of employment; injury dispute on the facts and medical evidence; whether applicant has capacity for work; suitable employment pursuant to section 32A of the Workers Compensation Act 1987; Wollongong Nursing Home Pty Ltd v Dewar considered as to whether “real jobs” available; Held - applicant sustained injury in course of employment; applicant found to have no capacity for employment; award for applicant for weekly compensation.

Decision date: 10 December 2021| Member: Michael Wright

Mafileo v G L International (Aust) Pty Ltd [2021] NSWPIC 519

Worker sustained back injury; requested surgery; liability declined by insurer; Held - surgery reasonably necessary; Diab v NRMA Ltd applied.

Decision date: 10 December 2021| Member: Deborah Moore

Saofaileta v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2021] NSWPIC 520

Claim for cost of bariatric surgery by worker with an accepted back injury; worker had long history of back complaints prior to his injury which was not disclosed in his statement evidence or included in the medical histories of treating and qualified medical practitioners; absence of medical opinion based on an accurate history of the development of the workers back condition; absence of reliable evidence from the worker of the development of his back condition; Held – worker failed to establish that the treatment of his back condition including the need for bariatric surgery was reasonably necessary as a result of the injury.

Decision date: 10 December 2021| Member: Paul Sweeney

Gregoraci v Estia Investments Pty Ltd [2021] NSWPIC 521

Claim for future shoulder surgery; injury occurred after retirement age, and the proposed surgery falls outside the expiry of the relevant compensation period; operation of section 59A of the Workers Compensation Act 1987 (1987 Act); whether the applicant falls within an exception to the operation of the section; Held - section 59A of the 1987 Act operates to preclude the applicant from making a claim for the surgery; absent an application concerning whether the applicant has reached maximum medical improvement and a finding to that effect, without a concession from the respondent that this is case, section 59A of the 1987 Act operates as a complete defence to the present proceedings; award for the respondent.

Decision date: 13 December 2021| Member: Cameron Burge

Sidhu v Secretary Department of Communities and Justice [2021] NSWPIC 522

Consideration of the calculation of pre-injury average weekly earnings; application of the Workers Compensation Amendment (Pre-injury Average Weekly Earnings) Regulation 2019; Held - the relevant earning period for the calculation of Pre-Injury Average Earnings should be adjusted to exclude the 9 weeks where the applicant was paid workers compensation benefits for an unrelated injury.

Decision date: 13 December 2021| Member: Elizabeth Beilby

Richards v Macarthur Electrical Connection Services Pty Ltd [2021] NSWPIC 524

Death claim where primary liability accepted by employer; apportionment between widow and children of the deceased; consideration of whether sons of the deceased who were electrical apprentices fell within the definition of student in section 25(5) of the Workers Compensation Act 1987 so as to be entitled to a weekly payment; Held - they were not receiving a full-time education at a school, college or university at the relevant time; award of interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 at the rate of 2.5% from the date of claim.

Decision date: 16 December 2021| Member: Paul Sweeney

Baldock v 3W Catering Pty Ltd [2021] NSWPIC 525

Claim for proposed hip surgery for alleged consequential condition; whether applicant suffered consequential right hip condition as a result of altered gait following accepted knee injury; whether proposed surgery reasonably necessary; Held - on a common-sense examination of the causal change, taking into account the lay and medical evidence, the applicant suffered a consequential condition to her right hip as a result of the accepted injury; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd followed; the proposed surgery is reasonably necessary; Diab v NRMA Ltd referred to; the respondent is to pay the costs of and incidental to the proposed surgery.

Decision date: 16 December 2021| Member: Cameron Burge

Sisko v State of New South Wales (Illawarra Shoalhaven Local Health District) [2021] NSWPIC 526

Accepted injuries to the applicant’s left shoulder and cervical spine arising out of or in the course of her employment in 2015 and 2017; whether applicant suffered injury to her central nervous system in 2017; whether applicant suffered injury to her right shoulder; cervical spine surgery performed in June 2018; whether surgery was reasonably necessary as a result of the 2017 injury; severe post-surgery complications resulting in injury to the laryngeal nerve; respondent accepted that if the cervical spine surgery was reasonably necessary then the applicant suffered compensable injury to laryngeal nerve; TEMSKI scarring; whether applicant had no current capacity for employment from 27 April 2021 as a result of her injury; whether applicant entitled to lump sum compensation; Held – finding that cervical spine surgery was reasonably necessary as a result of the workplace injury; finding that applicant suffered injury to her central nervous system; award for the respondent in respect of the right shoulder; weight to be given to surveillance material; finding that applicant had no current capacity for employment from 27 April 2021; referral to medical assessor for assessment of whole person impairment of injuries claimed other than injury to the right shoulder.

Decision date: 17 December 2021| Member: Jill Toohey

Mates v State of New South Wales (NSW Police Force) [2021] NSWPIC 527

Consideration of consequential condition (ruptured brain aneurism) following psychological injury; Held - the applicant suffered a consequential condition by way of stroke and/or brain aneurysm on 29 August 2019; the respondent is to pay the applicant weekly compensation in accordance with the application (at the current weekly wage rate of $1,823.81); the respondent is to pay the applicant’s costs as agreed or assessed; such costs are certified as complex for both parties and it is determined that a 30% uplift is appropriate in the circumstances.

Decision date: 17 December 2021| Member: Elizabeth Beilby

Pietrucha v Secretary, Department of Education [2021] NSWPIC 528

Claim for weekly compensation for psychological injury; fact of injury not in issue; whether injury wholly or predominantly caused by respondent’s reasonable actions with regards to performance appraisal and discipline (section 11A Worker’s Compensation Act 1987); Held - the applicant’s injury was neither wholly nor predominantly caused by the matters relied on by the respondent pursuant to section 11A but rather by a multitude of factors, many of which predated the matters relied upon; in any event, the respondent’s actions relied on as the basis for its section 11A defence were not reasonable; respondent ordered to pay the applicant weekly compensation as set out in the applicant’s wages schedule attached to the Application to Resolve a Dispute.

Decision date: 17 December 2021| Member: Cameron Burge

Jafary v Direct Freight (Aust) Pty Ltd [2021] NSWPIC 529

Applicant’s weekly benefits terminated pursuant to sections 48 and 48A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), for non-compliance with obligation to return to work; applicant disputed validity of notices issued by the respondent before termination of weekly benefits; respondent maintained that notices were valid, and the applicant had not made reasonable efforts to return to work in suitable employment; respondent accepted that it bears the onus of establishing the validity of the termination of weekly benefits; consideration of Cross v Secretary, Department of Education, McDonald v North Coast Area Health Service, Joseph Marmara v K Mart Australia Ltd, O’Carroll Constructions Pty Ltd v Burgess and Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation; Held - the respondent’s defence pursuant to section 48 and section 48A of the1998 Actfails.

Decision date: 17 December 2021| Member: Kerry Haddock

Clark v State of NSW (NSW Police Force) [2021] NSWPIC 530

Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to right knee surgery; undisputed patella dislocation injury at work; two previous dislocation events and anatomical predisposition to dislocation; whether surgery reasonably necessary as a result of the injury; Murphy v Allity Management Services Pty Ltd applied; Held - although symptoms of pain and swelling had abated, changes in pathology, function and clinical presentation persisted and materially contributed to the need for surgery; surgery was reasonably necessary as a result of injury; award for the applicant.

Decision date: 17 December 2021| Member: Rachel Homan

Caltabiano v Pool & Spa Builders (Aust) Pty Ltd [2021] NSWPIC 532

Death claim; determination of dependency, apportionment and payment of death benefit; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit apportioned and orders for payment.

Decision date: 23 December 2021| Senior Member: Glenn Capel

Parfitt v State of New South Wales [2021] NSWPIC 533

Applicant was a police officer and therefore an ‘exempt worker’ with an entitlement to lump sum compensation pursuant to sections 66 and 67 of the applicable version of the Workers Compensation Act 1987; this application was made pursuant to Schedule 6, Part 2, Table 4 of the Workers Compensation Regulation 2016 for an increase in applicant’s costs for complexity; Held - application granted on basis that complexity was established due to the Approved Medical Specialist (AMS) raising issues regarding sleep apnoea which then had to be investigated before the AMS finally assessed the permanent impairment as a result of the injury; costs order made with a 20% increase on the parties’ costs.

Decision date: 23 December 2021| Principal Member: Josephine Bamber

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as GIO v Johnson [2021] NSWPICMP 234

Review of Medical Assessment under Motor Accident Injuries Act 2017; dispute as to whether eight sessions of physiotherapy recommended on 10 August 2020 are reasonable and necessary treatment and causally related to injuries sustained in motor accident on 18 November 2018; Held - six of the eight recommended sessions of physiotherapy treatment were reasonable and necessary caused by injuries sustained in the motor accident.

Decision date: 1 December 2021 | Panel Members: Principal Member Josephine Bamber, Medical Assessor Shane Moloney and Medical Assessor Trudy Rebbeck

Workers Compensation Medical Appeal Panel Decisions

Meehan v Lindores Personnel No. 1 Pty Ltd [2021] NSWPICMP 235

Incorrect assessment by a Medical Assessor (MA) of body part not the subject of appeal; successful appeal on failure to give reasons with respect to scarring; submissions sought from the parties as to whether, upon reassessment, the Panel should correct the apparent error with respect to assessment of the left lower extremity; the appellant worker submitted that the Panel did not have power to reassess the lower extremity but, if it did, the assessment was correct; the respondent also submitted that the Panel did not have power to reassess the left lower extremity; Held- the MA had failed to explain his reasoning in assigning a 0% WPI for scarring; in accordance with observations made upon re-examination the scarring was assessed at 1% WPI; consideration of Siddik v WorkCover Authority of NSW and Drosd v Workers Compensation Nominal Insurer; deciding that on examination the Panel is obliged to assess the appellant in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines)  having given the parties the opportunity to make submissions with respect to that issue; the Panel considered that Skates v Hills Industries Ltd did not assist the appellant; Medical Assessment Certificate revoked and scarring and left lower extremity reassessed in accordance with the Guidelines.

Decision date: 10 December 2021 | Panel Members: Member William Dalley, Dr James Bodel and Dr David Crocker | Body system: Left lower extremity and scarring

Warburton v Rimfire Asia Pacific Pty Ltd [2021] NSWPICMP 236

Appellant worker submitted Medical Assessor’s (MA) clinical examination of him was defective in that MA did not examine him for all criteria listed in 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016 to determine whether he had radiculopathy; Held - Appeal Panel agreed and consequently found Medical Assessment Certificate contained demonstrable error; appellant was re-examined; findings from re-examination were adopted by the Appeal Panel; those findings did not permit a finding appellant had radiculopathy; Appeal Panel assessed the appellant’s whole person impairment the same as that which the MA had.

Decision date: 13 December 2021 | Panel Members: Member Marshal Douglas, Dr Brian Noll and Dr Gregory McGroder | Body system: Lumbar spine

Leo Burnett Pty Ltd v Odgers [2021] NSWPICMP 237

Appeal against assessment of 47% for Complex Regional Pain Syndrome ; whether recitation of Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guides) and opinion that “all four [criteria] were satisfied” by Medical Assessor (MA) sufficient compliance with Table 17.1 of the Guides; whether MA opinion a matter of clinical judgment and therefore unappealable; whether MA assessment of unreferred right hand permissible; whether failure to apply a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction a demonstrable error; Held - MA failed to identify signs of sudomotor/oedema in contravention of Table 17.1 of the Guides, assessing the hand impermissible; Skates v Hills Industries applied; failure to apply section 323 of the 1998 Act conceded and 10% deducted: Medical Assessment Certificate revoked and worker assessed on range of motion measurements (less the hand) taken by MA.

Decision date: 14 December 2021 | Panel Members: Member John Wynyard, Dr Mark Burns and Dr John Brian Stephenson| Body system: Right upper extremity and Complex Regional Pain Syndrome

B & J Benchtops Pty Limited v Xiao [2021] NSWPICMP 238

Allegation of error by the Medical Assessor (MA) by way of failure to give adequate reasons for assessment of body parts; upon preliminary review, the Panel noted that the MA had included an assessment of 5% whole person impairment in respect of the pelvis although the original claim did not include any component of impairment relating to the pelvis; submissions sought from parties as to whether the pelvis should be assessed upon re-examination; respondent worker submitted that the Panel had no jurisdiction to interfere with the decision of the MA beyond the terms of the appeal, citing Skates v Hills Industries Ltd (Skates); Held - lack of adequate reasons established; consideration of Skates led to the conclusion that the Panel should have regard to the medical dispute between the parties which did not include the pelvis; although the Panel reassessed the respondent worker as having the same degree of impairment as the MA in respect of the body parts referred, the Panel declined to include any assessment for the pelvis; the Panel noted that assessment of the pelvis in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016 would duplicate assessment of the left upper extremity resulting in over-compensation; (Fracture of the acetabulum assessed by reference to the range of hip motion).

Decision date: 15 December 2021 | Panel Members: Member William Dalley, Dr Gregory McGroder and Dr Brian Noll | Body system: Cervical spine, lumbar spine, left upper extremity, left lower extremity and scarring

Delic v Kennedy Health Care Group Pty Ltd [2021] NSWPICMP 239

Matter referred to Medical Assessor (MA) for assessment of right leg (knee) and consequential conditions in the lumbar spine and in the left Leg (knee) as a result of an injury on 23 November 2011; MA assessed 0% whole person impairment expressing an opinion as to causation when causation had been determined by the Arbitrator; Held - MA erred in determining liability for injury to the right knee and consequential condition of the lumbar spine and left knee; appellant re-examined and Panel assessed a combined total of 20% .

Decision date: 15 December 2021 | Panel Members: Member Carolyn Rimmer, Dr John Ashwell and Dr Tommasino Mastroianni | Body system: Lumbar spine, left lower extremity and right lower extremity

Velovski v Woolworths Group Limited [2021] NSWPICMP 240

The parties agree Medical Assessor (MA) omitted assessment of cervical spine; in respect of the referral of right upper extremity the MA declined to assess the shoulder and elbow as he was of the opinion that impairment in these joints was unrelated to the subject accident in confined assessment to the right wrist; Held - it was clear that the claim in respect of the right upper extremity included impairments in the shoulder elbow and wrist; apart from the error in failing to assess the cervical spine the MA had fallen into error in failing to assess the shoulder and elbow; discussion of Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; Skates v Hills Industries Ltd applied; Medical Assessment Certificate revoked.

Decision date: 17 December 2021 | Panel Members: Member William Dalley, Dr Gregory McGroder and Dr Roger Pillemer| Body system: Cervical spine and right upper extremity

State of New South Wales (Southern NSW Local Health District) v Atkins [2021] NSWPICMP 241

Allegation of error with respect to application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the Medical Assessor noted pre-existing persistent depressive disorder and alcohol misuse disorder; 1/10 deduction applied pursuant to section 323 of the 1998 Act on the basis of pre-existing anxiety and depression; allegation of error by way of failure to take into account the alcohol misuse disorder; the Panel Medical Assessors agreed that alcohol misuse disorder may exacerbate depression, but it is not appropriate or possible to separately assess contribution to impairment; it was the depressive component that led to the contribution rather than the consumption of alcohol; any contribution to extent of impairment measured in the PIRS areas of function following the subject injury did not break the chain of causation and did not warrant deduction, applying the reasoning in Secretary, New South Wales Department of Education v Johnson; Held - the deduction assessed was appropriate in the circumstances and no error was demonstrated; Medical Assessment Certificate confirmed.

Decision date: 23 December 2021 | Panel Members: Member William Dalley, Dr Julian Parmegiani and Dr Douglas Andrews| Body system: Psychological/psychiatric

Motor Accident Merit Review Decisions

Veli v AAI Limited t/as AAMI [2021] NSWPICMR 50

Merit review matter; costs dispute arising out of two medical assessment matters; minor injury and whole person impairment; recovery of costs under section 8.10 of the Motor Accident Injuries Act 2017 (MAI Act); exceptional costs order sought; agreement in relation to minor injury dispute costs and costs in costs dispute; whether merit reviewer has jurisdiction to determine costs in connection with whole person impairment dispute; Held -section 8.10 of the MAI Act concerns the recovery of costs and expenses in connection with a claim for statutory benefits; whole person impairment disputes arise in connection with a damages claim, not a statutory benefits claim; no jurisdiction to determine costs dispute in connection with the whole person impairment assessment; proceedings dismissed.

Decision date: 14 December 2021| Merit Reviewer: Brett Williams

Liu v Allianz [2021] NSWPICMR 51

Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); cash income; whether there is sufficient evidence of cash in hand earnings; Held – the reviewable decision is set aside.

Decision date: 15 December 2021| Merit Reviewer: Katherine Ruschen

Frost v NRMA [2021] NSWPICMR 52

Merit review; dispute about cost of treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017; definition of treatment and care; definition of attendant care services; tasks associated with a business or commercial enterprise; whether care for livestock is treatment and care for the injured person; Held – the reviewable decision is affirmed.

Decision date: 16 December 2021| Merit Reviewer: Katherine Ruschen

Dimic v AAI Limited t/as GIO Insurance [2021] NSWPICMR 53

Merit Review; legal costs; two invoices each at $1,826; minor injury dispute; treatment and care dispute; Insurer paid one invoice and offered $1,200 for the other; Claimant sought payment of full maximum amount for both invoices; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 (MAI Act); section 42 “guiding principle” of the Personal Injury Commission Act 2020; AAI Ltd trading as GIO v Moon applied; Held - insurer is to pay the Claimant’s reasonable and necessary legal costs assessed at $1,200 plus GST totalling $1,320; parties not acting consistently with legislation which encourages the early resolution of claims and the quick, cost effective and just resolution of disputes; parties have not acted in a way that is proportionate to the importance and complexity of the small amount of legal costs in dispute; Commission’s scarce resources diverted to deal with a dispute about a small amount of legal costs.

Decision date: 17 December 2021| Merit Reviewer: Ray Plibersek

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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