Legal Bulletin No. 68

Issued 8 July 2022

Welcome to the sixty-eighth 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

Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23

WORKERS COMPENSATION – Application to amend the Application to Resolve a Dispute; whether leave should have been refused; exercise of discretion on the leave application; taking into account irrelevant factors; error found; re-exercise of the discretion to determine an application for leave to amend the Application to Resolve a Dispute.

Decision date: 28 June 2022 | Before: Acting Deputy President Geoffrey Parker SC

Bunnings Group Limited v Collins [2022] NSWPICPD 24

WORKERS COMPENSATION – Section 11A(1) of the Workers Compensation Act 1987; reasonable action with respect to proposed transfer; Northern NSW Local Health Network v Heggie considered; Jeffery v Lintipal Pty Ltd; test of reasonableness is objective.

Decision date: 30 June 2022 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Elomari v Allianz Australia Insurance Limited [2022] NSWPIC 277

Miscellaneous claims dispute; was the Claimant wholly at fault for the accident; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Claimant involved in collision with the insured’s vehicle; contributory negligence; section 5R of the Civil Liability Act 2002; Held –Claimant wholly at fault for accident; Podrebersek v Australian Iron and Steel applied.

Decision date: 13 April 2022| Member: Stephen Boyd-Boland

Kennedy v AAI Limited t/as GIO [2022] NSWPIC 342

Motor Accident Injuries Act 2017 (2017 Act); application for statutory benefits; insurer’s denial of ongoing benefits under sections 3.11 and 3.28 of the 2017 Act on the basis that the Claimant was wholly or mostly at fault; Claimant owner and rider of only vehicle (motorcycle) involved; accident occurred in country NSW when rear wheel fell off motorcycle; Claimant was experienced motorcycle rider; felt something wrong at front of bike and pulled over to investigate; pushed bike up the road then mounted bike and rode off accelerating slowly before being thrown from motor bike; rear wheel never found; three potential causes of rear wheel dislodging; failure to maintain, catastrophic failure or tyre-fitter failure; Held – Claimant not wholly at fault because no evidence of failure to maintain and other two potential causes due to someone else or something else; Claimant not mostly at fault because reasonable person in the position of the Claimant (experienced rider; 40 kms from nearest town) would attempt to investigate and diagnose problem before calling for help.

Decision date: 31 May 2022 | Member: Belinda Cassidy

Al-Masri v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 279

Miscellaneous claims assessment matter; late claim for statutory benefits; failure to provide a certificate from a treating medical practitioner such as a Certificate of Fitness; sections 6.13 and 6.15 of the Motor Accident Injuries Act 2017 (2017 Act)and clause 4 of the Motor Accident Guidelines; Held – within the provisions of section 6.13(2) of the 2017 Act the claim is not “made” until the claimant has given notice and that notice includes providing a certificate from a treating medical practitioner such as a Certificate of Fitness.

Decision date: 2 June 2022 | Member: Stephen Boyd-Boland

Insurance Australia Ltd t/as NRMA Insurance v Proietti [2022] NSWPIC 298

Ms Proietti was injured in a motor accident on 7 November 2018 when the insured vehicle reversed, striking and causing her to fall to the ground; the Insurer denied the claim for payment of the future costs of a knee replacement and injections into the lumbar spine; the parties accepted that the payment of future medical expenses did not constitute a medical assessment matter and did not contest the decision in Obeid v AAI Ltd; they jointly sought to have the matter determined as a miscellaneous claim as there was a liability dispute between the parties which fell within the meaning of schedule 2 clause 3(n) of the Motor Accidents Injury Act 2017; the Personal Injury Commission dismissed the claim as it was not satisfied it had jurisdiction despite the common submission; R v Moore applied; Ex parte Australian Workers’ Union applied; submission that the making of the order created the liability rejected, as an order cannot be made in the absence of a power; Maxcon Constructions Pty Ltd v Vadasz (No 2) referred to; Insurer’s submission that the Motor Accident Guidelines (Guidelines) provided the underlying statutory entitlement to recover future expenses dismissed because the provision does not exist in the legislation and the Guidelines otherwise did not provide a statutory entitlement and create a potential liability with the insurer; otherwise submissions directed to those statutory provisions and/or Guidelines which concerned treatment approved by an insurer did not provide a statutory entitlement to an injured person where there had been a denial of treatment and the expenses had not been incurred; Held - matter dismissed due to absence of jurisdiction to make the order sought.

Decision date: 2 June 2022 | Principal Member: John Harris

AAI Limited t/as GIO v Burstow [2022] NSWPIC 343

Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; motorcycle accident; liability admitted; minimally displaced scapular fracture; mild tendinopathy rotator cuff; work as a courier and as a mechanic; no absence from work; past and future economic loss only; Held – impairment of earning capacity for heavy or repetitive work; settlement approved in the sum of $90,000 including past economic loss of $20,000; future economic loss of $70,000.

Decision date: 7 June 2022 | Member: Susan McTegg

Higgins v IAG Limited t/as NRMA Insurance [2022] NSWPIC 344

18-year-old, front seat passenger in a vehicle, travelling along a country road, where the vehicle left the roadway and rolled landing on the roof; Claimant sustained a left shoulder injury; at the time of the accident the Claimant was studying vet nursing and intended to further her studies to support a career in artificial insemination; completed nursing course;  alleges she has been unfit to work since June 2019; gave evidence once the case is over she would apply for suitable employment;  Held – assessed damages capped past economic loss to the amount of statutory benefits paid and assessed a buffer for future loss of earnings.

Decision date: 7 June 2022 | Member: Elyse White

Nguyen v AAI Limited t/as AAMI [2022] NSWPIC 300

Motor Accidents Compensation Act 1999; claim for damages; no issue of liability or contributory negligence; Claimant not entitled to damages for non-economic loss; claims made for past and future treatment, past and future earnings, earning capacity and past and future care; Claimant sustained soft tissue injuries and an adjustment disorder due to her injuries and her son’s catastrophic injury (brain injury); Claimant had no treatment for three years before assessment; Claimant a nail technician with her own business before the accident; discrepancy in earnings between claim form and other documents; limited documentation about business available; Held– economic loss unable to be calculated with any precision as a result therefore award by way of a buffer or cushion allowed for both past and present; treatment allowed in the past and a small amount for the future; care allowed for limited period after the accident; damages of $194,000 awarded with costs; no issue of principle.

Decision date: 10 June 2022 | Member: Belinda Cassidy

Zaina v QBE Insurance (Australia) Limited [2022] NSWPIC 319

Whether the injured person was mostly at fault pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Claimant self-represented; collision on Parramatta Road at intersection with Alfred Street, Granville; Claimant entered Parramatta Road; Insurer alleges the Claimant failed to give way to traffic causing a collision with the insured vehicle travelling along Parramatta Road; Held – Claimant mostly at fault; failed to keep a proper lookout and failed to give way to traffic when entering an intersection.

Decision date: 15 June 2022 | Member: Elizabeth Medland

Pham v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 320

Claim for damages; Motor Accident Injuries Act 2017; Claimant pillion passenger who fell off back of motorbike; dispute as to whether Claimant fell because she let go to wave; or because the rider changed gears and bike jolted; fracture of proximal femoral shaft, soft tissue injuries to knees, spine and right hip; significant abrasions resulting in significant scarring; post-traumatic stress disorder; pre-existing persistent depressive disorder or ‘dysthymic disorder’; questions as to reliability of Claimant’s evidence; Held – rider changed gears; bike jolted as Claimant simultaneously removed right hand from rider’s waist to waive; apportionment as per Podrebersek v Australian Iron and Steel; contributory negligence assessed at 15%; Claimant gave testimony honestly; Claimant purported to disclose pre-existing psychological condition; non-economic loss assessed at $300,000; past economic loss assessed on basis incapacitated for work since accident; future loss of earnings assessed on basis totally unfit for 2 years and thereafter based on capacity to work 15 hours per week; total damages assessed after reduction for contributory negligence of 15% in sum of $889,609.88; costs assessed.

Decision date: 23 June 2022 | Member: Susan McTegg

Xue v AAI Limited t/as AAMI [2022] NSWPIC 321

Claimant involved in a head on collision whilst travelling on the incorrect side of the roadway;  at the last minute she swerved in an attempt to avoid impact; lodged a claim for statutory benefits; Claimant charged with serious driving offences related to the accident; insurer denied liability; Claimant persisted with her claim for statutory benefits claiming 30% contributory negligence; Insurer sought to have statutory benefits dismissed; Held – Claimant’s persistence to pursue her application for statutory benefits misconceived; miscellaneous claim dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 and rule 77(b)(v) of the Personal Injury Commission Rules 2021; denial of liability is not binding in connection with a claim for damages in relation to the same motor accident; Division 3.6, section 3.44 of the Motor Accident Injuries Act 2017.

Decision date: 23 June 2022 | Member: Elyse White

Mansour v QBE Insurance (Australia) Limited [2022] NSWPIC 336

Whether the Claimant was mostly at fault under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017; T intersection collision; whether the Claimant had entered the intersection at the time of collision; consideration of expert evidence; Held – Claimant mostly at fault.

Decision date: 28 June 2022 | Member: Elizabeth Medland

Muscat v Allianz Australia Insurance Limited [2022] NSWPIC 337

Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the Claimant; section 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred when the Claimant pedestrian was attempting to cross four lanes of traffic on the Hume Highway in heavy traffic; speed limit of 70kph; where the Claimant crossed between two stationary vehicles and was struck by the insured vehicle halfway in third lane and halfway in the fourth lane; where Insured driver had seen the Claimant before she entered the roadway; where the Insured driver was travelling at 60-kph prior to impact and struck the pedestrian at about 50kph; where the Insurer alleged 70% contributory negligence; apportionment of culpability; Insured driver endangered the Claimant by attempting to drive around the Claimant and failed to take corrective action to avoid the collision; Claimant failed to take reasonable care for her own safety; Held – Claimant not mostly at fault for the motor accident.

Decision date: 29 June 2022 | Member: Maurice Castagnet

QBE Insurance (Australia) Limited v Walker [2022] NSWPIC 338

Claim for damages; decision on liability only; Claimant unrepresented; Claimant the owner/driver involved in a single vehicle accident; tree fell on vehicle during storm causing injury; a “no-fault” accident as defined in section 5.1 of the Motor Accident Injuries Act 2017; consideration of case of Whitfield v Melenewycz; Held – Claimant not entitled to bring a claim for damages.

Decision date: 29 June 2022 | Member: Elizabeth Medland

Bromhead v AAMI [2022] NSWPIC 340

Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; the application was one day late; whether the Claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of “full and satisfactory explanation” in the context of section 7.33  under Part 7 of the 2017 Act; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the 2017 Act the Claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list.

Decision date: 30 June 2022 | Member: Maurice Castagnet

Hurst v AAI Limited t/as GIO [2022] NSWPIC 341

Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; whether the Claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act, 2017 (2017 Act); meaning of “full and satisfactory explanation” in the context of section 7.33 under Part 7 of the 2017 Act; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the 2017 Act the Claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list.

Decision date: 30 June 2022 | Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Sutton v Legends Australia Holdings Pty Ltd [2022] NSWPIC 322

Accepted claim for injury to lumbar spine and further permanent impairment claimed; disputed claim for permanent impairment as a result of consequential gastrointestinal conditions as a result of ingestion of medication for spinal injury and related medical expenses; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of date of onset of symptoms with first record five years after injury occurred and which was addressed by the respondent’s qualified medical evidence, but not by the applicant’s qualified medical evidence; consideration of Kooragang v Bates, Murray v Shillingsworth, Seltsam Pty Ltd v McGuiness, EMI (Aust) Ltd v Bes, South Western Sydney Area Health Service v Edmonds Kumar v Royal Comfort Bedding Pty Ltd and Nguyen v Cosmopolitan Homes; Held – the applicant has not satisfied the onus of establishing consequential condition of gastrointestinal system as a result of injury to lumbar spine; award for the respondent with respect to the claim for consequential gastrointestinal conditions; claim for further impairment as a result of injury to the lumbar spine remitted to President for referral to Medical Assessor.

Decision date: 23 June 2022| Senior Member: Kerry Haddock

Palmon v Woolworths Group Limited [2022] NSWPIC 323

The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 resulting from injury sustained to his right shoulder in the course of his employment with the respondent and consequential injury to his left shoulder; while it is not disputed the applicant sustained injury to his right shoulder in the course of his employment with the respondent it is disputed he sustained consequential injury to his left shoulder; Held – the applicant sustained consequential injury to his left shoulder resulting from injury he sustained to his right shoulder in the course of his employment with the respondent; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor to assess whole person impairment resulting from those injuries.

Decision date: 23 June 2022| Member: Jacqueline Snell

Bettles v State of New South Wales (NSW Police Force) [2022] NSWPIC 324

Claim by police officer for weekly payments following a psychological injury; whether section 11A of the Workers Compensation Act 1987 defence established; whether employment wholly or predominantly caused the injury; whether the actions by the respondent were reasonable; Held – respondent failed to meet its onus of proof on both counts applicant’s colleagues convicted of serious offences; applicant voluntarily gave statement to professional standards command; reassured that he would be supported on several occasions over the next few months but then accused of failing to prevent colleagues’ criminal behaviour and failing to report they were using two mobile phones; put on interim risk program and transferred to general duties at Mt Druitt; actions unreasonable; Commissioner of Police v Minahan considered; respondent also failed to meet onus as to whether employment wholly or predominantly the cause of the condition; respondent relied on opinion of expert on 9 July 2021 but failed to respond to applicant’s expert opinion of 13 January 2022 which found a different psychological injury following further treatment over the intervening months; Hamad v Q Catering Limited applied; award applicant.

Decision date: 24 June 2022| Member: John Wynyard

Rech v Kel Campbell Pty Limited [2022] NSWPIC 325

Claim for the cost of surgery to the applicant’s right second, third and fourth toes for injury in the form of aggravation or exacerbation of a condition in the right second toe caused by the requirement of the respondent employer for the applicant to wear steel capped boots in the course of employment as a truck driver; the respondent accepted injury to the right second toe but claimed that the requirement for surgery was as a result of a pre-existing condition in the toe caused by the applicant’s type 2 diabetes and the amputation of the right great toe; Held – finding that the applicant suffered exacerbation of the injury to the right second toe accepted by the respondent; finding that the surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of the injury; the respondent ordered to pay for the costs of and incidental to such surgery.

Decision date: 24 June 2022| Member: Brett Batchelor

Colless v Woolworths Group Limited [2022] NSWPIC 326

Permanent impairment compensation; whether applicant suffered bilateral shoulder injuries in addition to accepted thoracic spine injury; Held – on balance the medical evidence discloses pathological change in the applicant’s left shoulder sufficient to satisfy the requirements of section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW) and Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear discussed and applied; the initial emphasis of the applicant’s treating practitioners on the thoracic spine injury does not preclude the existence of injury to other body parts; the existence of such injury is a matter to be determined after consideration of the totality of the lay and medical evidence; on balance the applicant has discharged the onus of proof in establishing a left shoulder injury; however the applicant has not discharged the onus of proof in establishing injury to the right shoulder; thoracic spine and left shoulder claims remitted to the President for referral for medical assessment; award for the respondent on the claim for injury to the right shoulder.

Decision date: 24 June 2022| Member: Cameron Burge

Bjelosevic v Formtec Formwork Australia Pty Ltd [2022] NSWPIC 327

Hearing loss; whether applicant able to proceed with claim for permanent impairment compensation made after June 2012 for an additional 5% whole person impairment despite the 2012 amendments to the Workers Compensation Act 1987; Held – the applicant was precluded from bringing the further claim in the circumstances of this case which are materially identical to those in the Court of Appeal decision in Sukkar v Adonis Electrics Pty Ltd; award for the respondent.

Decision date: 27 June 2022| Member: Cameron Burge

Parmenter v Ian's Transport Pty Ltd [2022] NSWPIC 328

Claim for future surgery to right shoulder said to arise from consequential condition brought about by overuse following accepted left shoulder injury and surgery; respondent accepts consequential condition took place however it alleges the effects of it have passed and the requirement for the medically necessary right shoulder surgery has been brought about by pre-existing conditions; Held – the effects of the consequential condition are ongoing; all the lay and treating medical evidence in the matter supports a finding of a continuum of symptoms in the right shoulder since the onset of the accepted consequential condition which have not dissipated or reverted to the status of the relevant body system before the consequential condition came about; the respondent’s attack on the applicant’s credit concerning histories of prior shoulder issues before the injury at issue are irrelevant in circumstances where the fact of the consequential condition is not in issue and the only question is whether its effects persist; the overwhelming evidence is the symptoms have persisted to the present time; the respondent’s Independent Medical Examiner (IME) is the only medical expert to assert the consequential condition has passed and his opinion is not supported by the treating medical evidence; as a matter of common sense the right shoulder consequential condition is a material cause of the requirement for the proposed right shoulder surgery; respondent ordered to pay the costs of and incidental to the proposed surgery; claim for weekly compensation discontinued.

Decision date: 27 June 2022| Member: Cameron Burge

Devlin v Molco Holdings Pty Ltd [2022] NSWPIC 329

Claim for lump sum for back condition consequential to accepted right knee injury in 1996; Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates considered; Held – applicant’s back condition resulted from right knee injury in 1996; matter referred to Medical Assessor for assessment of permanent impairment.

Decision date: 28 June 2022| Member: Michael Wright

Callus v Apollo Window Blinds Pty Ltd [2022] NSWPIC 330

The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 resulting from injury sustained in the nature of right inguinal hernia, right ilioinguinal neuralgia, right calf deep vein thrombosis and consequential injury to his low back in the course of his employment with the respondent; while it is not disputed the applicant sustained injury in the nature of right inguinal hernia, right ilioinguinal neuralgia, right calf deep vein thrombosis in the course of his employment with the respondent it is disputed he sustained consequential injury to his low back; Held – the applicant sustained consequential injury to his low back resulting from injury he sustained in the course of his employment with the respondent; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor to assess whole person impairment resulting from injury in the nature of right inguinal hernia, right ilioinguinal neuralgia, right calf deep vein thrombosis and consequential injury to the low back.

Decision date: 28 June 2022| Member: Jacqueline Snell

Howard v ABB Australia Pty Limited [2022] NSWPIC 331

Claim for weekly payments; whether aggravation to pre-existing disc disease had ceased; Held – worker continues to suffer the effects of aggravation of disc disease; worker had no current work capacity; ordered that weekly payments be reinstated.

Decision date: 28 June 2022| Member: Carolyn Rimmer

Bourke v State of New South Wales (Ambulance Service of NSW) [2022] NSWPIC 332

Claim for compensation for pain and suffering; exempt worker; dispute as to quantum of lump sum payable; permanent impairment of the lumbar spine assessed at 11% whole person impairment; applicant returned to full-time suitable work but remained unfit to perform pre-injury work as a paramedic causing distress; successful outcome from lumbar surgery; minimal interference with activities of daily living and recreational pursuits; ongoing subtle radiculopathy with intermittent flare ups; relatively young age at time of injury; possibility of accelerated degenerative changes in the future; Held – Tyler v Marsden Industries applied; respondent to pay $18,500 representing 37% of a most extreme case; orders as to costs.

Decision date: 28 June 2022| Member: Rachel Homan

Stewart v Secretary, Department of Communities and Justice [2022] NSWPIC 333

Permanent impairment compensation; injury and incapacity agreed; only issue is whether the period for calculating the applicant’s pre-injury average weekly earnings (PIAWE) should be adjusted; the applicant suffered an accepted physical injury for which he was paid weekly compensation for total incapacity from 20 November 2020 to 1 February 2021; the applicant submitted a claim for psychological injury on 1 February 2021 for which liability was also accepted and payments made for total incapacity; in calculating the applicant’s PIAWE the respondent’s insurer in accordance with part 6(2)(c) of schedule 3 of the Workers Compensation Act 1987 (1987 Act)excluded from calculation of the applicant’s PIAWE the payments made for the accepted physical injury; in excluding those payments the respondent’s insurer did not also exclude from calculation of PIAWE the time for which those payments were made leading to the situation where the applicant’s 52-week PIAWE was calculated on only 42 weeks’ worth of income; Held – there is no doubt the compensation payments in respect of the prior injury are required to be excluded (schedule 3, part 6(2)(c) of the 1987 Act); regulation 8D of the Workers Compensation Regulations 2016 (Regulations)relevantly provides for an alignment of the period for calculation of the PIAWE earnings period with any regular interval during which the worker is entitled to receive payment for earnings for work performed in the employment; applying regulation 8D of the Regulations to the circumstances of this case disregarding the period during which the applicant received weekly compensation in respect of the prior injury adjusts the PIAWE earnings period to that during which the applicant actually earned income in his employment with the respondent; the alternative approach excluding the prior compensation payments as required by schedule 3 of the 1987 Act but including in the calculation the period during which compensation was paid creates the logical absurdity of a worker’s 52-week PIAWE being calculated on earnings for a shorter period despite them remaining in employment and only being unable to work because they are suffered an earlier injury for which they are in receipt of compensation payments; accordingly, the period during which the applicant’s PIAWE should be calculated in this matter is 1 February 2020 to 19 November 2020.

Decision date: 28 June 2022| Member: Cameron Burge

Al Hadidi v Form1 Building & Construction Pty Ltd [2022] NSWPIC 334

Claim for weekly compensation and incurred section 60 of the Workers Compensation Act 1987 expenses; whether applicant a worker or deemed worker; lumbar injury and secondary psychological condition in dispute; extent of ongoing incapacity; significant factual disputes in the evidence; calculation of pre-injury average weekly earnings (PIAWE); Held – applicant was a deemed worker; lumbar injury and secondary psychological condition accepted; applicant had at all times no current work capacity; respondent’s PIAWE accepted; awards for weekly compensation and medical expenses.

Decision date: 28 June 2022| Member: Rachel Homan

Riddle v The Star Entertainment Group Ltd [2022] NSWPIC 339

Applicant seeking the cost of a total knee replacement, claiming that the injury of October 2001 was a material factor to the need for surgery; whether evidence sustained finding of aggravation; whether deterioration since receiving awards sufficient to establish link; Held – a temporal gap of three years was unexplained by either the applicant or the medical experts; evidence of both treating surgeon and medico-legal expert confused and contradictory; award respondent.

Decision date: 29 June 2022| Member: John Wynyard

Motor Accidents Medical Review Panel Decisions

Allianz Australia Insurance Ltd v Smith [2022] NSWPICMP 246

The claimant was involved in a motor accident on 31 May 2016 when she sustained various soft tissue injuries; Held- the claimant was examined by a Medical Assessor (MA) who found nil impairment of the lumbar and cervical spines; the other issue body part was the right shoulder where the claimant displayed limited movement before various doctors; the nature of a rear end collision would only cause a jarring sensation through the steering wheel column and would not cause any pathology to the right shoulder; there was significant variation in range of shoulder movements measured by the MA and the goniometer measurements could not be utilised; this inconsistency of shoulder movement was consistent with the surveillance which showed active right shoulder movement; the motor accident may have exacerbated the underlying pre-existing degenerative condition although it was medically doubtful that the underlying pathology would cause severe restriction of movement as displayed by the claimant; Panel was not prepared to accept that there was any restriction of movement caused by the motor accident; claimant assessed at 0% WPI; original assessment revoked.

Decision date: 12 May 2022 | Panel Members: Principal Member John Harris, Medical Assessors Mohammed Assem and Clive Kenna | Injury module: Upper Limb, Lower Limb and Spine

Meriton v AAI Limited t/as GIO [2022] NSWPICMP 261

Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of Whole Person Impairment (WPI) and insurer’s review under section 63 of the 1999 Act; claimant involved in serious single vehicle accident with multiple roll-overs; claimant alleged injuries to neck, lower back, upper limbs and lower limbs; claimant also alleged head injury and scarring due to surgery to repair fractured ulnar and radius and severe ankle ligament damage; Held- claimant had recovered well; neck and back Diagnosis Related Estimate (DRE) I; ankle and wrist had restriction of motion equal to 4% and 1% respectively; scarring assessed at 1% according to the table for the evaluation of minor skin impairment (TEMSKI); while Panel satisfied claimant sustained a head injury in the accident the Panel was not satisfied that a brain injury had occurred; total WPI 6%.

Decision date: 4 July 2022 | Panel Members: Member Belinda Cassidy, Medical Assessors Tai Tak Wan and David Gorman| Injury module: Upper Limb, Lower Limb and Spine

Gerling v AAI Limited t/as GIO [2022] NSWPICMP 262

The claimant was involved in a motor accident in 2017; a different Panel had determined in earlier medical disputes (Gerling (No 1)) that the claimant injured her low back resulting in surgery; in Gerling (No 2) a previous Review Panel determined other treatment disputes; the present dispute concerned whether a prolapsed cervix was caused by the motor accident and the assessment of permanent impairment; Held – the Panel accepted that it was not bound by the findings made in previous medical disputes; the claimant was on large amounts of opioids prior to the motor accident which caused constipation; however, the evidence showed a dramatic increase in the consumption of opioid medication following the motor accident; the relationship between the use of the opioid medication and the back condition is evident from the consistent back complaints that led to lumbar surgery and as recounted in Gerling (No 2) and the reduction in use of opioid medication following successful back surgery; the consumption of opioids can cause constipation which causes straining which caused a prolapsed cervix; the Panel accepted that the prolapse occurred in the manner recounted by the claimant which was consistent with the history recorded by the treating specialist; the claimant is required to satisfy the test of causation as discussed in AAI Ltd v Phillips; based on the temporal link, the excessive use of opioid medication and the severe lumbar spine caused by the motor accident the straining led to the prolapse which was caused by the motor accident; the claimant was medically examined by a Medical Assessor on the Panel; the prolapse was found to be greater than assessed by Medical Assessor Korbel and the treating doctor; this is consistent with increased prominence with the course of the medical condition once it has occurred; pursuant to Chapter 11, page 255, paragraph 11.3 of the American Medical Association's Guides to the Evaluation of Permanent Impairment 4th edition (AMA 4) the impairment of the urinary tract is assessed at 12%.

Decision date: 23 June 2022 | Panel Members: Principal Member John Harris, Medical Assessors John Carter and Michael Rochford | Injury module: Urology Female

Workers Compensation Medical Appeal Panel Decisions

Laidlaw v Chambers & O'Brien t/as Old Farm Nursery [2022] NSWPICMP 263

Right knee injury and consequential condition in left knee; in respect of the right lower extremity assessment Appeal Panel found that the Medical Assessor (MA) made a demonstrable error and made an assessment on the basis of incorrect criteria in respect of the assessment of the right lower extremity (right knee) because he incorrectly applied the criteria in Table 17; the assessment should have been based on the table from the American Medical Association's Guides to the Evaluation of Permanent Impairment 5th edition (AMA-5) which is modified in the WorkCover Guidelines page 21 table 17-35 which rates knee replacement results; in respect of the left lower extremity, the Appeal Panel found that the MA made a demonstrable error by failing to assess an impairment of the left knee on the basis that he considered that the condition was a constitutional one and not as a consequence of injury; Held – re-examination by a MA member of the Appeal Panel; Medical Assessment Certificate revoked.

Decision date: 24 June 2022 | Panel Members: Member Jane Peacock, Dr John Brian Stephenson and Dr Margaret Gibson| Body system: Left and Right Lower Extremity

Price v State of New South Wales (NSW Police Force) [2022] NSWPICMP 264

The appellant worker alleged error with respect to the assessment of impairment arising from psychological injury in three respects; submitted that the Medical Assessor (MA) had failed to consider whether there was a causal connection between the effects of the subject injury and the effects of a subsequent injurious event when deducting one quarter for the subsequent events; secondly, the MA had assessed four of the areas of function described in paragraph 11.11 of the NSW workers compensation guidelines for the evaluation of permanent impairment 4th edition (Guidelines) contrary to the weight of the evidence; and thirdly the MA had incorrectly aggregated the Psychiatric Impairment Rating Scale (PIRS) scores; Held – the MA had failed to consider whether there was a causal connection between the impairment arising from the subject psychological injury and the subsequent impairment; Secretary, New South Wales Department of Education v Johnson and State Government Insurance Commission v Oakley (Oakley) considered; impairment arising from the subsequent injury fell into the second Oakley category and no deduction was warranted; the assessments of the PIRS areas of function were open on the evidence and no error or adoption of incorrect criteria was made out; the mathematical error was corrected; Medical Assessment Certificate revoked.

Decision date: 28 June 2022 | Panel Members: Member William Dalley, Dr Michael Hong and Dr Julian Parmegiani| Body system: Psychological and Psychiatric

Coskun v State of New South Wales (NSW Police Force) [2022] NSWPICMP 265

Psychological injury; use of the Psychiatric Impairment Rating Scale (PIRS); assessment of social functioning; assessment on the day of the examination; Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed.

Decision date: 29 June 2022 | Panel Members: Member Catherine McDonald, Medical Assessors Professor Nicholas Glozier and Dr Julian Parmegiani | Body system: Psychological and Psychiatric

Motor Accident Merit Review Decision

Tissaoui v QBE Insurance (Australia) Limited [2022] NSWPICMR 38

Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); pre-accident weekly earnings (PAWE); meaning of PAWE; schedule 1, clause 4(1) of the 2017 Act; whether COVID-19 disaster payments are earnings as an earner; meaning of loss of earnings, schedule 1, clause 3 of the 2017 Act; whether travel claim payments are earnings; whether travel claim payments are an allowance or reimbursement; burden of proof; validity of claim, section 6.24 of the 2017 Act; Held – the reviewable decision is affirmed.

Decision date: 1 July 2022| Merit Reviewer: Katherine Ruschen

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