Legal Bulletin No. 64

Issued 10 June 2022

Welcome to the sixty-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.

Motor Accidents non-Presidential Member Decisions

Williams v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 243

Cessation of statutory benefits; sections 3.11, 3.28 and 3.36(4) of the Motor Accident Injuries Act 2017 (MAI Act); no-fault accident; section 5.1 MAI Act; Claimant alleged he attempted to avoid two deer; balance of probabilities; Held- the Claimants account should be accepted; Sdrolias v Allianz Australia Insurance Ltd; costs; “exceptional circumstances”; Masters & Cheyne; Martyn & Martyn; Plaintiff M174/2016 v Minister for Immigration and Border Protection; BVZ16 v Minister for Immigration and Border Protection; AAI Ltd trading as GIO v Moon; finding of “exceptional circumstances”; section 8.10(4) of the MAI Act.

Decision date: 29 March 2022 | Member: Terence Stern

Hourani v AAI Limited t/as GIO [2022] NSWPIC 244

Whether the claimant was mostly at fault under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Single vehicle accident; Claimant a rider of a motorbike in Brighton Le Sands and lost control whilst negotiating an “S” bend; Claimant argued that no-fault accident provisions (Part 5) applied; Held- claimant failed to drive to the prevailing conditions and was mostly/wholly at fault.

Decision date: 3 May 2022 | Member: Elizabeth Medland

Brown v Allianz Australia Insurance Limited [2022] NSWPIC 245

Motor Accidents Claims Assessment, claim referred to the Personal Injury Commission more than 3 years after the motor accident, whether the claimant has provided a full and satisfactory explanation for the delay, whether the leave should be granted by the Commission; operation of Section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act) meaning of “full and satisfactory explanation where the term is defined for the purposes of part 6 of the MAI Act but not part 7; comparison with provisions in the Motor Accidents Compensation Act 1999 (MAC Act); applicability of authorities addressing the MAC Act provisions relating to full and satisfactory explanation”; Held- for the purposes of section 7.33 of the MAI Act; the Claimant has provided a full and satisfactory explanation to the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment.

Decision date: 6 May 2022 | Member: David Ford

Douglas v AAI Limited t/as AAMI [2022] NSWPIC 246

Section 3.11, section 7.36(3) and section 7.36(4) of the Motor Accident Injuries Act 2017 (MAI Act); accident caused mostly by the fault of the Claimant; section 3.28 MAI Act; vehicle loses traction and control; collision with tree; multiple and serious injuries; cessation of statutory benefits; Anchor Products Ltd v Hedges; inference of negligence; averment of “no-fault accident”; section 5E of the Civil Liability Act 2022; Claimant alleged slippery substance on the road; QBE (Insurance) Australia Limited v Abberton; Piening v Wanless; section 5.3 MAI Act; averment that the accident was a no-fault evidence; evidence of that fact; AAI Limited v Singh; Alliance Aust v GSF Aust; Sdrolias v Allianz Australia Insurance Ltd referenced; Held– on the balance of probabilities for the purpose of section 3.28 of the MAI Act accident caused wholly by the fault of the Claimant.

Decision date: 24 May 2022 | Member: Terence Stern

Gray v QBE Insurance (Australia) Limited [2022] NSWPIC 247

Claims assessment; dispute about the amount of damages to be paid to the Claimant under section of the Motor Accident Injuries Act 2017; intersection accident; insured driver failed to give way and collided into the passenger side of Claimant’s vehicle; whiplash and bruising; injury to right wrist; transverse fracture through distal radial metaphysis; avulsion fracture of the ulnar styloid; right distal fracture with intraarticular extension; Claimant, a speech therapist; claim for past and future economic loss; Held- Claimant entitled to damages for past and future economic loss and past and future superannuation.

Decision date: 26 May 2022 | Member: Terence Stern

AAI Limited t/as GIO v Vardouniotis [2022] NSWPIC 248

Settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; Car v Pedestrian accident; very active elderly claimant pre-accident now aged 88 years; injuries to right arm, right shoulder, neck and back with ongoing pain; settlement for $150,000- no deductions; Held- approved.

Decision date: 26 May 2022 | Member: Alexander Bolton

Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 254

Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where two residential streets intersect at an almost perpendicular right-angle corner; where the claimant’s scooter was making a left-hand turn and the insured vehicle was making a right-hand turn; where both vehicles arrived at the corner at the same time; Held– claimant not wholly or mostly at fault.

Decision date: 27 May 2022 | Member: Maurice Castagnet

Stone v IAG Limited t/as NRMA Insurance [2022] NSWPIC 259

Application for a late claim for an assessment; more than three years after the motor accident, sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; delay was 49 days, whether a full and satisfactory explanation for delay in making the application; Held- Claimant has a full and satisfactory explanation; delay due to late medical assessments because of COVID; delay also due to claimant’s solicitors’ mistaken belief that the time for making the claim did not start until the claimant’s eighteenth birthday; late claim may be made more than three years after the date of the motor accident; Legal costs awarded, $NIL.

Decision date: 31 May 2022 | Member: Ray Plibersek

Workers Compensation non-Presidential Member Decisions

Kaye-Smith v BGIS Technical Services Pty Ltd [2022] NSWPIC 249

Claim for weekly compensation and medical and related treatment expenses resulting from primary psychological injury sustained in the course of employment with the respondent; Defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline; Held– the applicant’s injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline, the applicant has an entitlement to weekly benefits payable under section 37(1) of the 1987 Act and the applicant has an entitlement to medical and related treatment expenses payable under section 60 of the1987 Act.

Decision date: 26 May 2022 | Member: Jacqueline Snell

Shepherd v Janmina Pty Limited t/as Nowra Classic Cars Detailing [2022] NSWPIC 250

Whether the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by the applicant within the meaning of section 60 of the Workers Compensation Act 1987 (1987 Act); Kooragang Cement Pty Ltd v Bates; Kirunda v State of New South Wales (No 4); Diab v NRMA Ltd; Rose v Health Commission (NSW); Murphy v Allity Management Services Pty Ltd considered and applied; Held- the right-sided L4/5 fenestration for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 17 February 2020 within the meaning of section 60 of the 1987 Act;  the respondent is to pay for the costs of and ancillary to the right-sided L4/5 fenestration surgery for neurolysis of the transiting L5 nerve root surgery proposed by Dr Peter Moloney at the gazetted rates.

Decision date: 26 May 2022 | Member: Anthony Scarcella

Stocker v Jones Lang Lasalle (NSW) Pty Ltd [2022] NSWPIC 251

Claim for cost of lumbar surgery for injuries received in a motor vehicle collision in 1992; proposed surgery not challenged as not being reasonably necessary; whether applicant satisfied onus of proof regarding causation; Held- opinions as to causation by medico-legal expert and treating surgeon ipse dixit; no contemporaneous support; respondent experts that the surgery was not connected with the injury accepted: award respondent.

Decision date: 26 May 2022 | Member: John Wynyard

Maharaj v State of NSW (South Western Sydney Local Heath District) [2022] NSWPIC 252

Apportionment of lump sum death benefit; Held- lump sum benefit to be paid directly to applicant pursuant to section 85A of the Workers Compensation Act 1987.

Decision date: 27 May 2022 | Senior Member: Elizabeth Beilby

Kambas v Dnata Catering Australia [2022] NSWPIC 253

Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to accepted right shoulder injury in 2008 and disputed consequential conditions to left shoulder and cervical spine; lack of documentary evidence of ongoing right shoulder symptoms following return to pre-injury duties; delayed reporting of symptoms in left shoulder and cervical spine; lack of explanation in applicant’s expert report; Held- awards for the respondent in respect of the disputed consequential conditions; no evidence of permanent impairment exceeding the threshold in section 66(1) of the 1987 Act for the accepted right shoulder; award for the respondent in respect of the claim for lump sum compensation.

Decision date: 27 May 2022 | Member: Rachel Homan

Mella v Inghams Enterprises Pty Ltd [2022] NSWPIC 255

Claim for weekly payments and past medical expenses. applicant leading hand alleges 3 episodes of physical injury (aggravation etc of the underlying degenerative lower back) and a consequential psychological condition; Held- injuries and consequential conditions established on the evidence; respondents attack applicant’s credit unsuccessful; award in favour of the applicant for weekly payments and general order section 60  of the Workers Compensation Act 1987 expenses.

Decision date: 30 May 2022 | Member: Philip Young

Norford v Boral Resources (Country) Pty Ltd [2022] NSWPIC 256

Claim for weekly payments pursuant to section 38 of the Workers Compensation Act 1987 (1987 Act); with the worker claiming to have no current work capacity; also orders sought pursuant to section 60 (5) of the 1987 Act for physiotherapy, pain management treatment consultations with general practitioner; consideration of previous decision of Arbitrator Bell in March 2020, who found the worker to be totally incapacitated for work, subsequent expert evidence; Held– worker continues to have no current work capacity and entitled to weekly payments pursuant to section 38; order for the respondent to meet the cost of an assessment by physiotherapist and pain management clinic, and general order in regard to consultations with general practitioner.

Decision date: 30 May 2022 | Member: John Isaksen

Jaksic v Commercial Interiors Projects Pty Ltd [2022] NSWPIC 257

Claim for consequential condition to upper digestive tract; whether applicant expert opinion compromised by clinical notes of GP; whether presence of Helicobacter infection negated any other cause for applicant’s gastritis; whether applicant’s weight sole cause of reflux symptoms; whether gap in clinical records raise Jones v Dunkel inference; Held- error in history taking by applicant expert not relevant and opinion within a fair climate ACW v ACX applied; caution to be adopted in reliance on clinical notes Qannadian applied; applicant’s weight a talem qualem matter State Transit v Fritzi Chemmler applied; medication for reflux a material factor Ozcan v Macarthur Disability Services Ltd applied; Respondent expert did not exclude possibility of other cause for gastritis Woolworths v Christopher-Coates applied; gap in clinical records explained; award applicant.

Decision date: 30 May 2022 | Member: John Wynyard

Clark v Secretary, Department of Communities and Justice [2022] NSWPIC 258

Claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant had accepted injury to left shoulder and right shoulder; whether the applicant sustained injury to his neck and back pursuant to sections 4(a) and 4(b)(ii) of the 1987 Act; Held– applicant sustained injury to his lumbar spine arising out of his employment pursuant to section 4(a) of the 1987 Act; applicant sustained injury to his lumbar spine and cervical spine arising out of his employment pursuant to section 4(b)(ii) of the 1987; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders).

Decision date: 30 May 2022 | Member: Karen Garner

Shabib v Green Formwork Pty Ltd [2022] NSWPIC 260

Psychological injury; no dispute about injury; claim for lump sum compensation; whether applicant precluded from recovering compensation by reason of section 151A(1) of the Workers Compensation Act 1987 (the 1987 Act) because she had received payment under a deed in the context of proceedings taken under the Fair Work Act 2009 (Cth); Court of Appeal authority in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd (Gardiner) applied; the Fair Work Act 2009 provides for statutory protections under a discrete and independent statutory scheme; the legislative purpose of section 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury; the Fair Work Act 2009 allows for damages for pain and suffering resulting from adverse action based on sex; even if the sexual harassment resulted in personal injury which it did here, this does not disentitle the applicant’s  claim for workers compensation; rather the proper construction of both section 151A(1) and the deed, is that the applicant has received payment under an independent statutory scheme (the Fair Work Act) for adverse action based on sex and she is not disentitled from claiming workers compensation; this conclusion reinforced by the parties specifically excluding from the release the applicant’s claim for workers compensation by identifying the specific workers compensation claim number; award for the applicant and matter remitted for referral to a Medical Assessor.

Decision date: 31 May 2022 | Member: Jane Peacock

Clarke v City of Ryde [2022] NSWPIC

Application for determination of whether injured worker suffered injuries to his cervical and thoracic spine in addition to injuries to lumbar spine, cardio vascular system and TEMSKI/scarring for the purposes of medical assessment of whole person impairment; significant medical investigation of reported symptoms inconclusive; contemporaneous complaints of symptoms consistent with claimed injury recorded in workers compensation claim form on day of accident; parties agreed matters in issue related solely to determination of whether injury suffered to cervical and thoracic spine; Davis v Council of City of Wagga Wagga referred; Held- despite competing medical evidence if anything favouring respondent the completion of a contemporaneous workers compensation claim form was compelling and consistent with injury as alleged; injury did occur to cervical and thoracic spine and whole person impairment to be assessed by reference to all body parts claimed in ARD; not necessary to determine if injury still responsible for current presentation which is entirely for the medical assessor; matter to be referred back to the President.

Decision date: 1 June 2022 | Member: Christopher Wood

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Yacoub [2022] NSWPICMP 234

Motor Accident Compensation Act 1999; medical review panel; psychological injury; adjustment disorder; substance use disorder; whole person impairment (WPI); permanent impairment; self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; adaption; dispute related to assessment of permanent impairment; initial complaints of neck and lower back pain; development of psychological symptoms; no remission of symptoms at any time after the accident; Held- diagnosis of adjustment disorder and substance use disorder; certificate of Medical Assessor Samuell who assessed a 26% WPI revoked; new certificate issued; assessment of 19% whole person impairment.

Decision date: 3 May 2022| Panel Members: Member Susan McTegg, Dr Matthew Jones and Dr Michael Li Ying Hong | Injury module: Psychiatric/psychological

Insurance Australia Limited t/as NRMA Insurance v Karisik [2022] NSWPICMP 235

Motor Accident Compensation Act 1999; medical review panel; psychological injury; whole person impairment (WPI); permanent impairment; Posttraumatic Stress Disorder (PTSD); medical review panel; dispute related to assessment of permanent impairment; previous motor accident; previously suffered from a number of psychological issues; previous psychological issues resolved; subsequent motor accident; initial complaints of PTSD; development of psychological symptoms; no remission of symptoms at any time after the accident; subsequent to the motor accident claimant experienced further life stressors; further life stressors increased claimant’s anxiety and depression, but did not produce new psychological injury. Held: diagnosis of PTSD; original certificate of Medical Assessor who assessed a 15% WPI revoked; new certificate issued; assessment of 7% whole person impairment.

Decision date: 24 May 2022| Panel Members: Member Ray Plibersek, Dr Matthew Jones and Dr Michael Li Ying Hong | Injury module: Psychiatric/psychological

Petersen v QBE Insurance (Australia) Limited [2022] NSWPICMP 236

Cervical spine, thoracic spine, right and left shoulder; referred pain; assessment by analogy; permanent impairment; whole person impairment (WPI); the claimant was injured in a motor vehicle accident; the dispute related to the assessment of whole person impairment; Motor Accident Compensation Act 1999; Held- inconsistency of shoulder movement; range of motion not reliable and valid method of determining impairment; assessment by restriction in flexion and abduction at 2% WPI for each shoulder; alternatively assessed by analogy for mild crepitations of the right AC joint resulting in 2% WPI for each shoulder; cervical spine assessed as DRE category 1 or 0% WPI; thoracic spine assessed as DRE category 1 or 0% WPI; injures caused by accident give rise to WPI not greater than 10%.

Decision date: 25 May 2022| Panel Members: Member Susan McTegg, Dr Margaret Gibson and Mohammed Assem| Injury module: Upper limb and spine

Stanford v AAI Limited t/as AAMI [2022] NSWPICMP 238

Mr Stanford was involved in a motor accident in October 2017 when another car collided with his vehicle at high-speed causing it to flip on its side; the claimant was assessed by both Medical Assessors on the Panel who noted the prior psychiatric condition and the deterioration following the motor accident; on a review of the extensive material and the clinical examination of the claimant, Held- the Panel determined that there was a psychological injury caused by the motor accident; claimant reassessed at 7% permanent impairment for the psychological injury.

Decision date: 26 May 2022| Panel Members: Principal Member John Harris, Dr Paul Friend and Dr Michael Hong | Injury module: Psychiatric/psychological

Bjelan v AAI Limited t/as GIO [2022] NSWPICMP 241

Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; dispute about whether claimant’s psychological injury is a minor injury for the purposes of the MAI Act; Claimant’s physical injuries included left knee, back and left shoulder; had treatment including injections but felt there was no improvement; psychologist diagnosed posttraumatic stress disorder  (PTSD); Held- the claimant had a major depressive disorder which is a non-minor injury; Claimant did not have PTSD; an adjustment disorder or a persistent depressive disorder; no issue of principle.

Decision date: 31 May 2022| Panel Members: Member Belinda Cassidy, Dr Matthew Jones and Dr Michael Li Ying Hong | Injury module: Psychiatric/psychological

Workers Compensation Medical Appeal Panel Decisions

Canon Medical Systems ANZ Pty Limited v Berry [2022] NSWPICMP 231

Psychological injury; use of diagnosis in the assessment of permanent impairment; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment paragraphs 11.4 and 11.6; application of the PIRS; Jenkins v Ambulance Service of NSW, Ferguson v State of NSW, Parker v Select Civil Pty Ltd; Held- Medical Assessment Certificate confirmed.

Decision date: 25 May 2022| Panel Members: Member Deborah Moore, Dr Patrick Morris and Dr Nicholas Glozier |Body system: Psychiatric/psychological

Joe v Sydney Trains [2022] NSWPICMP 237

Allegation of incorrect criteria and demonstrable error in respect of assessment of three PIRS categories based upon the availability of fresh evidence, failure to properly consider Independent Medical Examiner (IME) report and incorrect recording of history; reliance on further statement contradicting history recorded by the Medical Assessor (MA) and additional IME report post-dating the Medical Assessment Certificate (MAC); admission opposed by the respondent; Held- the Panel declined to receive the fresh evidence on the basis of probable delay and possible unfairness to the respondent; the evidence could not be placed higher than to cavil with the matters recorded by the MA; Ross v Zurich Workers Compensation Insurance, Petrovic v B C Serv No 14 and Others, Lukacevic v Coates Hire Operations and Marina Pitsonis v Registrar of the Workers Compensation Commission applied; the respective assessments were open to the MA on the evidence; MAC confirmed.

Decision date: 26 May 2022| Panel Members: Member William Dalley, Dr Nicholas Glozier and Dr Michael Hong |Body system: Psychiatric/psychological

Moore v Alwyn Rehabilitation Hospital [2022] NSWPICMP 233

Appellant challenged the assessment as regards the manner in which the Medical Assessor (MA) assessed the right ankle injury; although the MA’s comments on his findings on examination were fairly brief, he used a goniometer and clearly explained the results of his examination; his assessment took place some 18 months after the appellant was seen by her Independent Medical Examiner, Dr Tong; the appellant exhibited some flexion and extension; as the MA correctly noted; “It is not possible to suffer ankylosis and have a measurable ROM”; Held- Medical Assessment Certificate confirmed.

Decision date: 29 April 2022| Panel Members: Member Deborah Moore, Dr James Bodel and Dr Drew Dixon |Body system: Scar and right lower extremity

Green v Friend Civil Pty Ltd [2022] NSWPICMP 239

Foot injury resulting in consequential conditions in left knee and lumbar spine; Medical Assessor did not set out findings in detail and did not explain that he had considered contemporaneous x-rays; re-examination required; Held- Medical Assessment Certificate revoked.

Decision date: 30 May 2022| Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr Tommasino Mastroianni |Body system: Left lower extremity (foot and knee) and lumbar spine

St Andrews Education Centre Pty Ltd v Osmanovic [2022] NSWPICMP 240

Appeal by employer against an assessment of whole person impairment as a result of psychological injury resulting from sexual assault by respondent worker’s employer; examination of medical and lay evidence including social media posts of respondent submitted to be inconsistent with the classification by the Medical Assessor of certain Psychiatric Impairment Rating Scale (PIRS) categories; the appellant also submitted that there should have been a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction in respect of psychological injury as a result of a previous motor vehicle accident; Held- by the Appeal Panel that there were demonstrable errors in respect the classification of certain PIRS categories, and that there should have been a section 323 of the 1998 Act deduction; Medical Assessment Certificate (MAC) revoked and new MAC issued.

Decision date: 31 May 2022| Panel Members: Member Brett Batchelor, Dr Douglas Andrews and Dr Julian Parmegiani |Body system: Psychiatric/psychological

Motor Accidents Merit Review Decisions

Dinkha v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 33

Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; meaning of earner schedule 1, clause 2 of the MAI Act; short work trial; whether an earner by reason of employment on a trial basis; pre-accident weekly earnings; schedule 1, clause 4 of the MAI Act; Held– the reviewable decision is affirmed.

Decision date: 15 March 2022| Merit Reviewer: Katherine Ruschen

Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 34

Dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1) of the MAI Act; calculation of gross earnings of warehouse assistant from various casual positions sourced through human resources agency; Held – the reviewable decision is varied.

Decision date: 26 May 2022| Merit Reviewer: Maurice Castagnet

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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