Legal Bulletin No. 56

Issued 14 April 2022

Welcome to the fifty-sixth 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.

Motor Accidents non-Presidential Member Decisions

Osaulenko v Allianz Australia Insurance Limited [2022] NSWPIC 136

Claims assessment application; whether claimant had used “best endeavours’ to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017 (MAI Act); meaning of “best endeavours”; Held- in the context of the MAI Act and section 7.32(3), the obligation of using“best endeavours” is satisfied if the claimant has taken reasonable steps to make, prepare and advance his claim towards a resolution; no practical utility in pursuing settlement where degree of permanent impairment remains in dispute; the obligation does not require the claimant to capitulate and compromise his claim for the sake of achieving a settlement before referring it for assessment by the third anniversary of the motor accident.

Decision date: 28 February 2022| Member: Maurice Castagnet

Yankovich v AAI Limited t/as GIO [2022] NSWPIC 137

Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault and whether benefits should cease under sections 3.11 and 3.28 of the MAI Act; claimant was a learner motorcyclist riding on an unfamiliar road which was difficult to navigate due to bends in the road and alternating sunshine and shade; claimant had motorcycle helmet with sun visor which she was continually adjusting; father riding ahead of her and leading the way to show her where /how to ride; claimant lost control on a bend in the road and collided with a tree sustaining serious injuries; Held- claimant wholly at fault; sun and trees were part of the landscape and did not cause the accident; only cause of the accident was claimant’s inexperience in riding to the conditions of sun and shadows on a difficult stretch of unfamiliar roadway; issues of ‘motor accident’ and section 1.4 of the MAI Act considered; observations as to the approach to ‘wholly or mostly’ at fault cases in single vehicle accidents where no other person and no thing caused the accident; costs assessed for two disputes in accordance with the regulated fees.

Decision date: 22 March 2022| Member: Belinda Cassidy

Chit v Allianz Australia Insurance Limited [2022] NSWPIC 139

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; regulation 148 of Road Rules 2014;  insured bus struck claimant cyclist in bus lane in CBD area; CCTV footages; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; accident caused solely by insured bus driver in overtaking cyclist when there was no room or space to do so; 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: 4 April 2022| Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Bullock v Global Logistics [2022] NSWPIC 138

Claim for weekly benefits and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses by a worker relying on injury in accordance with s 4(2)(b)(ii) of the 1987 Act; the respondent alleged the pre-existing degenerative condition in the applicant’s lumbar spine, caused by an earlier back injury and surgery thereon, was not aggravated or accelerated by the nature and conditions of his employment as a truck driver, but what caused him to cease work was the inevitable progression of the pre-existing condition; detailed examination of the medical evidence and the duties of the applicant in the employ of the respondent both as a loader and then truck driver over the 19 years of his employment which post-dated his earlier injury and surgery; finding that the applicant’s employment was the main contributing factor to the aggravation or acceleration of the pre-existing condition; finding that the applicant has no current work capacity; awards in favour of the applicant for weekly benefits pursuant to sections 36 & 37 of the 1987 Act and for costs and expenses pursuant to section 60 of that Act.

Decision date: 31 March 2022| Member: Brett Batchelor

McGregor v R Campbell & Sons Pty Ltd [2022] NSWPIC 140

The applicant claims permanent impairment compensation resulting from injury he sustained to his left lower extremity and alleged consequential injury to his lumbar spine; alleged consequential injury to the applicant’s lumbar spine and level of impairment resulting from workplace injury sustained placed in issue; Held– the applicant has sustained consequential injury to his lumbar spine; the applicant’s claim for permanent impairment compensation resulting from injury to his left lower extremity and lumbar spine is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 4 April 2022| Member: Jacqueline Snell

Smith v Inghams Enterprises Pty Ltd [2022] NSWPIC 141

Claims for psychological injury, right knee and lumbar spine; consideration of factual material and treatment documents; consideration of CCTV and surveillance footage viz Asim v Penrose & Anor; physiological effects of psychological injury, Stewart v NSW Police Service, NSW Police Force v Gurnhill considered; perception based upon real events in psychological injury, Attorney General’s Department v K considered; consideration of the main contributing factor; AV v AW considered; section 32A of the Workers Compensation Act 1987 and real employment; Wollongong Nursing Home Pty Ltd v Dewar considered; pre accident weekly earnings and relevant pre injury earning period considered relating to two deemed dates of injury and whether discretion as to pre injury 52 weeks in absence of relevant categories pursuant to the Workers Compensation Regulation 2016; Held- award in favour of applicant for psychological, right knee and lumbar spine injuries, referred to Medical Assessor assessment of whole person impairment (psychological) and award for applicant weekly compensation for lumbar spine, right knee and psychological injuries.

Decision date: 5 April 2022| Member: Michael Wright

Morris v Affinity Health Pty Ltd [2022] NSWPIC 142

Claims for weekly benefits, section 60 of the Workers Compensation Act 1987 (1987 Act) expenses and lump sum compensation by nurse alleging aggravation of cervical spondylosis as a result of a frank incident; the respondent employer denied liability, placing in issue injury of section 4 of the 1987 Act, substantial contributing factor/main contributing factor sections 9A & 4 (b) of the 1987 Act, capacity section 33 of the 1987 Act and the reasonable necessity for treatment expenses section 60 of the 1987 Act; the respondent denied the occurrence of the incident in which the applicant claims she was injured, or alternatively that any such incident aggravated the pre-existing cervical spondylosis; detailed examination of applicant’s evidence, contemporaneous evidence, evidence of treating neurosurgeon and qualified neurosurgeon; the respondent tendered no medical evidence; award for the applicant in respect of injury/main contributing factor thereto; respondent ordered to pay weekly benefits pursuant to section 37 and expenses pursuant to section 60 of the 1987 Act; Held- matter referred to Medical Assessor for assessment of permanent impairment; leave to parties to relist matter if necessary after issue of Medical Assessment Certificate if whole person impairment greater than 30% as found by the applicant’s qualified neurosurgeon.

Decision date: 5 April 2022| Member: Brett Batchelor

Mohsen v BLH New South Wales Pty Ltd [2022] NSWPIC 144

Subject matter decision; findings of fact; applicant was injured as alleged.

Decision date: 6 April 2022| Senior Member: Elizabeth Beilby

Laari v Secretary, Department of Communities and Justice [2022] NSWPIC 145

Claim for psychological injury; only issue was section 11A of the Workers Compensation Act 1987 (1987 Act) defence; Held- section 11A of the 1987 Act defence not made out.

Decision date: 6 April 2022| Senior Member: Elizabeth Beilby

UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2022] NSWPIC 146

Uninsured employer; section 145 of the Workers Compensation Act 1987 (1987 Act) recovery; worker; use of the multi-factorial test; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; deemed worker; section 9B of the 1987 Act stroke injury; De Silva v Secretary, Department of Finance, Services and Innovation, Renew God’s Program v Kim, Secretary, Department of Communities and Justice v Galea; Held– second respondent was a worker who suffered a stroke injury, applicant liable to reimburse Nominal Insurer for compensation paid.

Decision date: 6 April 2022| Member: Catherine McDonald

Motor Accidents Medical Review Panel Decisions

Beydoun v AAI Ltd t/as GIO [2022] NSWPICMP 65

The claimant was involved in a motor accident on 31 May 2016 when she sustained an injury to the lumbar spine; an MRI scan in May 2017 showed a disc lesion at L5/S1; the claimant underwent a discectomy in April 2019; Held- the disc lesion was not caused by the motor accident; the contemporaneous notes of the general practitioner record no neurological signs which did not arise until at least 12 months after the accident; the absence of contemporaneous neurological signs was confirmed by the claimant to the Medical Assessor and consistent with the history provided to Dr Conrad in April 2017; the conclusion that that there was no disc injury was consistent with the opinion of Dr McIntosh based on the minor impact in the motor accident; the doctors who opined that the disc injury was caused by the motor accident was based on a history of contemporary neurological symptoms; those opinions were not based on a fair climate; Paric v John Holland (Constructions) Pty Ltd applied; finding made that the claimant suffered a soft tissue injury to the lumbar spine causing non-uniform range of motion; claimant assessed at 5% impairment; original assessment confirmed.

Decision date: 25 March 2022| Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Neil Berry | Injury module: Lumber spine

QBE Insurance (Australia) Ltd v Kumar [2022] NSWPICMP 66

The claimant was involved in a motor accident on 24 August 2015 when he sustained soft tissue injuries to the cervical and lumbar spines and left shoulder; Held- The claimant was examined by both Medical Assessors who found impairment of the lumbar spine but no impairment of the cervical spine; discussion of whether claimant suffered discrete injury to shoulders and/or whether he has referred pain restricting movement under the Nguyen principle; examination findings of shoulders showed significant variability and measurements could not be accepted as a valid and reliable method; restriction in shoulder movement assessed by way of analogy; no deduction made for any pre-existing impairment; observations that the onus was on the insurer to establish the deduction; Vines v Djordjevitch and Matthew Hall Pty Ltd v Smart referred to; claimant assessed at 9% whole person impairment; original assessment revoked.

Decision date: 28 March 2022| Panel Members: Principal Member John Harris, Dr Mohammed Assem, Dr Margaret Gibson| Injury module: Cervical and lumbar spines and left shoulder

AAI Ltd t/as GIO v Gerling [2022] NSWPICMP 67

The claimant was involved in a motor accident in 2017 and underwent lumbar spine surgery in late 2021; the medical disputes related to whether the lumbar spine surgical procedure was reasonable and necessary and other multiple treatment and care disputes; Held- factual findings made that lumbar spine and cervical spine injured in the motor accident, but the right shoulder and knees were not injured; absence of proper explanation of injury to those body parts in circumstances where the claimant had significant pre-existing conditions; finding made that the motor accident materially contributed to the need for surgical treatment of the lumbar spine; AAI Ltd v Phillips applied; surgical treatment held to be reasonable and necessary in the circumstances; considerations given to factors discussed in Diab v NRMA; acceptance that the treatment was appropriate medical treatment and conservative treatment had failed; the surgical treatment was an accepted medical procedure; claimant’s evidence that she had a positive outcome accepted.

Decision date: 28 March 2022| Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Geoffrey Stubbs Injury module: Cervical and lumbar spines and right shoulder and knees

Allianz Australia Insurance Ltd v Zou [2022] NSWPICMP 69

The claimant was involved in a motor accident on 2 December 2017 when he sustained various soft tissue injuries; Held- the claimant was examined by both Medical Assessors; claimant had no cervical spine movement which was not medically explicable and inconsistent with previous reporting; the absence of neck movement is not asymmetrical and does not satisfy DRE Category II; claimant sustained a soft tissue injury to the right shoulder which resolved; current right shoulder symptoms emanated from the cervical spine and were assessed in accordance with the Nguyen principle; loss of movement not explicable based on previous assessments and absence of pathology; shoulder assessed by way of analogy; finding made that low back injured despite some delay in reporting symptoms. Body part assessed at DRE Category I; finding made that right knee injured in motor accident; no crepitus or loss of movement and assessed at 0%; claimant assessed at 3% whole person impairment; original assessment revoked.

Decision date: 30 March 2022| Panel Members: Principal Member John Harris, Dr Mohammed Assem, Dr Margaret Gibson| Injury module: Cervical and lumbar spines, right shoulder and right knee

Kerde v AAI Limited t/as GIO [2022] NSWPICMP 74

Motor Accidents Compensation Act 1999 (MAC Act); medical assessment of whole person impairment (WPI) and review under section 63 of the MAC Act; claimant had previous lumbar spine injuries; injuries in motor accident included cervical, thoracic and lumbar spine, right knee, right shoulder and gastrointestinal issues caused by consumption of anti-inflammatory and pain killing medication; Held- claimant’s WPI not greater than 10% (8%) but different to original assessment of 0%; no matter of principle.

Decision date: 4 April 2022| Panel Members: Member Belinda Cassidy, Dr Alan Home and Dr Neil Berry | Injury module: Cervical, thoracic and lumbar spines, right knee, right shoulder and gastrointestinal

AAI Limited t/as GIO v BFY [2022] NSWPICMP 75

Motor Accidents Compensation Act 1999 (MAC Act); medical assessment of whole person impairment (WPI) and insurer’s review under section 63 of the MAC Act; claimant alleged injuries to her lumbar and cervical spine and both shoulders; assessor found WPI of 17%; insurer argued causation of injuries not properly dealt with; Held- claimant assessed as DRE I in neck and lower back, shoulder movement inconsistent and 0% WPI given; claimant’s total WPI not greater than 10%; no issue of principle.

Decision date: 5 April 2022| Panel Members: Member Belinda Cassidy, Dr Shane Maloney and Dr Thomas Rosenthal| Injury module: Lumbar and cervical spines and shoulders

Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76

The claimant was involved in a motor accident on 20 March 2020 and requested the insurer to pay for various treatment including right shoulder surgery and diagnostic blocks; an issue arose whether the Panel had power to determine a claim for medical expenses not incurred and not provided; discussion of various provisions of the Motor Accidents Injuries Act 2017 (MAI Act) including section 3.24 and Schedule 2 clause 2(b) of the MAI Act, which referred to the expenses “incurred” or provided”; observations that clause 2(b) of the MAI Act must be read in context with section 3.24 of the MAI Act; neither provision referred to expenses not incurred or to be provided; comparisons made with the Motor Accidents Compensation Act 1999 which referred to expenses “to be provided”; plain meaning consistent with other parts of the MAI Act such as section 3.27 of the MAI Act which required expenses to be verified before they could be paid; submission that MAI Act be read beneficially rejected as no purpose identified when there were contrasting objects; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd applied; Panel determined that there was no power with the Medical Assessor and it to determine the claim; assessment revoked.

Decision date: 5 April 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Geoffrey Stubbs | Injury module: right shoulder

Workers Compensation Medical Appeal Panel Decisions

Cameron v Secretary, Department of Education [2022] NSWPICMP 64

Appellant challenged the Medical Assessor’s assessment in respect of 3 Psychiatric Impairment Rating Scale categories, namely Self-care and personal hygiene, concentration, persistence and pace (cpp) and employability and adaptation; Panel confirmed assessment in relation to self-care and personal hygiene and cpp but revoked the assessment regarding employability; appellant’s symptoms and difficulties in public places together with her failed attempts at voluntary work meant that she was more properly assessed as a Class 5; Held- Medical Assessment Certificate revoked.

Decision date: 24 February 2022 (amended 31 March 2022) | Panel Members: Member Deborah Moore, Dr Douglas Andrews and Professor Nicholas Glozier| Body system: Psychiatric/ psychological

BAF v Health Care Complaints Commission [2022] NSWPICMP 68

Appeal asserting incorrect criteria and demonstrable error with respect to two areas of function in the  Psychiatric Impairment Rating Scale Table, “self-care and personal hygiene” and “concentration, persistence and pace” asserting that the respective classes assessed by the Medical Assessor were not open on the evidence and a higher classification should have been assessed; Held- the Medical Assessor’s assessments were open on the evidence; reference to Ferguson v State of New South Wales and Jenkins v Ambulance Service of New South Wales; Medical Assessment Certificate confirmed.

Decision date: 28 March 2022 | Panel Members: Member William Dalley, Professor Nicholas Glozier and Dr Michael Hong| Body system: Psychiatric/ psychological

Cottom v Scone Race Club Limited [2022] NSWPICMP 70

Worker appeals from assessment of Medical Assessor (MA) in respect of his failure to assess peripheral nerve injury of right lower extremity and consequential scarring both of which had been assessed at 0%; worker sought to adduce post-Medical Assessment Certificate (MAC) statement as fresh evidence; the statement addressed the MA’s alleged failure to examine aspects of his right leg and to carry out a proper examination; Held- that as statement was plainly inconsistent with MAC it should not be admitted; no evidence to support worker’s assertion that MA erred in his assessment of peripheral nerve injury or scarring; MAC confirmed.

Decision date: 31 March 2022| Panel Members: Member Paul Sweeney, Dr Drew Dixon and Dr Michael Davies| Body system: Right lower extremity (knee) and skin scarring

Tahan v MSS Security Pty Ltd [2022] NSWPICMP 71

Appeal asserting incorrect criteria and demonstrable error where Medical Assessor (MA) found range of motion was unable to be measured and assessed range of motion in bilateral shoulders by estimation without explaining the basis of the assessment; Held- in the absence of explanation, the method adopted by the MA could not be said to be in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; worker reassessed and Medical Assessment Certificate revoked.

Decision date: 31 March 2022| Panel Members: Member William Dalley, Dr Mark Burns and Dr Roger Pillemer| Body system: Right lower extremity (shoulder) and left upper extremity (shoulder)

MMEM Electrical v Anderson [2022] NSWPICMP 72

Matter referred to Medical Assessor (MA) for assessment of left upper extremity (shoulder) and skin; MA assessed left elbow and neurological dysfunction in the distribution of the axillary nerve; Panel agreed with parties that MA acted beyond his power in assessing left elbow and removed that assessment from the total assessment; Held- by the Panel that MA was entitled to assess neurological dysfunction in the distribution of axillary nerve; Medical Assessment Certificate revoked.

Decision date: 1 April 2022| Panel Members: Member Carolyn Rimmer, Dr David Crocker and Dr Roger Pillemer| Body system: Left upper extremity and skin

Anglican Care Community Services Ltd v Hodder [2022] NSWPICMP 73

Respondent worker was referred for assessment of whole person injury (WPI) from injury to lumbar spine and consequential conditions in left upper extremity (shoulder) and cervical spine; Medical Assessor (MA) used restriction of range of movement of left upper extremity to assess WPI of left upper extremity and also included restriction of movement of respondent’s left elbow to assess respondent ‘s impairment; appellant submitted Medical Assessment Certificate (MAC) contained a demonstrable error because MA included in his assessment impairment due to respondent’s restricted movement of left elbow when that was not a matter referred for assessment; appellant submitted that MA made assessment with respect to left upper extremity based on incorrect criteria because MA ought to have concluded respondent’s presentation was inconsistent; Held- Panel considered MA’s conclusion that respondent’s presentation was consistent was open to him and MA applied correct criteria; Panel found MAC contained demonstrable error because MA included assessment of respondent’s WPI due to restriction of movement of left elbow; MAC revoked.

Decision date: 1 April 2022| Panel Members: Member Marshal Douglas, Dr James Bodel and Dr David Crocker | Body system: Lumber spine, cervical spine and left upper extremity

Motor Accidents Merit Review Decisions

Nouri v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWPICMR 19

Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings; clause 4(1) of the MAI Act; Held– the reviewable decision is set aside.

Decision date: 21 March 2022| Merit Reviewer: Katherine Ruschen

Huynh v Allianz Australia Insurance Limited [2022] NSWPICMR 20

Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident earning capacity; decision about post-accident earning capacity; schedule 1, clause 7 of the MAI Act; schedule 1, clause 8 of the MAI Act; weekly benefits after second entitlement period sections 3.8; 3.15; and 3.16 of the MAI Act; balance of probabilities; Motor Accident Guidelines clause 4.56; Held– the reviewable decision is affirmed.

Decision date: 5 April 2022| Merit Reviewer: Katherine Ruschen

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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