Legal Bulletin No. 84

Issued 28 October 2022

Welcome to the eighty-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 LexisNexis. Any legislative updates are provided at the base of the Bulletin.

Presidential Decision

Elliot v Franklins Pty Limited [2022] NSWPICPD 38

Workers Compensation; whether effects of an injury have ceased; whether an injury has resolved; onus of proof resides with the party asserting injury has ceased or resolved; Commonwealth v Muratore applied; University of New South Wales v Brooks applied; Member’s decision revoked on appeal; new decision made; section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998.

Decision date: 18 October 2022 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Jenkin v Allianz Australia Insurance Limited [2022] NSWPIC 565

Interim decision; allegation of apprehended bias by insurer on the basis that Member had previously determined claim for statutory benefits; application that Member recuse herself; determined that fully informed, hypothetical fair-minded lay observer would not be less confident of Member’s ability to put out of her mind irrelevant and damaging information given her legal qualifications, background and reasons; qualification of Member considered; Held – application for recusal refused.

Decision date: 5 July 2022| Member: Bridie Nolan

Sukkar v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 566

Miscellaneous claims assessment; statutory benefits; whether for the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (2017 Act) statutory benefits are payable in respect of death or injury resulting from motor accident; whether claimant involved in a “motor accident” for the purposes of section 1.4 of the 2017 Act; claimant sustained injuries as a result of momentary loss of attention to check whereabouts of vehicle with which he had earlier briefly collided; Held –determined claimant’s injuries were caused by the use or operation of a vehicle; statutory benefits found to be payable.

Decision date: 20 July 2022| Member: Bridie Nolan

Whittington v AAI Limited t/as AAMI [2022] NSWPIC 567

Miscellaneous claims assessment; whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.10 of the Motor Accidents Injuries Act 2017 (2017 Act);whether section 50Aof the Limitation Act 1969 (1969 Act) operates to extend time on time stipulated in section 6.12 of the 2017 Act; whether section 85 of the 1969 Act regarding modification or suspension of limitation or other statutory time periods during COVID-19 pandemic applies; Held – no extension of time granted.

Decision date: 24 August 2022| Member: Bridie Nolan

Bowyer v Allianz Australia Insurance Limited [2022] NSWPIC 515

Miscellaneous claims assessment; whether for the purposes of section 3.11 of the Motor Accident Injuries Act 2017 the motor accident was caused by the fault of another person; learner driver executing left-hand turn into T-intersection; claimant collided with learner driver vehicle; whether the claimant kept a proper lookout; whether the insured driver checked for oncoming vehicles before executing turn; resolution based on implausibility of acceleration required by claimant to collide with the insured vehicle; Held – accident caused by the fault of the insured driver.

Decision date: 16 September 2022| Member: Bridie Nolan

Diener v QBE Insurance (Australia) Limited [2022] NSWPIC 568

General assessment; application for personal injury damages; claimant injured in motor accident; claimant commenced work as a personal trainer shortly before the accident; lack of reliable contemporaneous evidence of fee earned as personal trainer; surgery to cervical spine; diminished capacity; assessment of damages for non-economic and economic loss; competing forensic accountant reports; turns on own facts; Held – the amount of damages for the claim is $567,114; the amount of the claimant’s costs in the matter is $65,435.06 inclusive of GST.

Decision date: 4 October 2022| Member: Bridie Nolan

El-Dehaibi v AAI Limited t/as GIO [2022] NSWPIC 569

Proceedings purporting to refer a claim for damages for assessment were commenced by the claimant on 14 October 2021; claimant then made a claim for damages on AAI Limited t/as GIO (the insurer) on 5 November 2021, after the proceedings had been commenced; insurer submits that the proceedings ought be dismissed as there was no claim to be referred for assessment at the time of the purported referral; section 7.32 of the Motor Accident Injuries Act 2017 considered and applied; Held – as there was no claim for damages capable of being referred to the Commission on 14 October 2021 the proceedings cannot be maintained; the subsequent making of a damages claim can overcome this fact; found that the proceedings are misconceived and lacking in substance; proceedings dismissed under section 54(b) of the Personal Injury Commission Act 2020.

Decision date: 13 October 2022| Member: Brett Williams

Bray v Allianz Australia Insurance Limited [2022] NSWPIC 570

Dispute as to whether the motor accident was caused mostly by the fault of the injured person pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act2017; claimant riding a motorcycle behind insured vehicle when attempted to overtake insured on the right-hand side; collision occurred when the insured vehicle began a right-hand turn at a T intersection and the claimant was overtaking; Held – that the claimant was mostly at fault with a contributory negligence finding of 65%.

Decision date: 14 October 2022| Member: Elizabeth Medland

Alameddine v Allianz Australia Insurance Limited [2022] NSWPIC 577

The claimant alleges injury in a motor vehicle accident on 11 December 2016; claimant commenced proceedings in District Court against Mr Cheaib, driver of vehicle which collided with rear of claimant’s vehicle; compulsory third party (CTP) insurer of Mr Cheaib’s vehicle (QBE) issued notice declining liability on basis accident caused by unidentified vehicle who pushed Mr Cheaib’s vehicle into rear of claimant’s vehicle; defendant in District Court proceedings declined liability; claimant made claim on nominal defendant; Allianz on behalf of nominal defendant admitted breach of duty of care but denied liability because claimant had not provided full and satisfactory explanation for delay and had not established due inquiry and search; application for exemption from assessment declined on 31 March 2021; claimant made further application for exemption on basis of change in circumstances; Notice of Motion filed by defendant in District Court proceedings to strike out proceedings dismissed; insurer argued issue estoppel created by earlier decision; claimant relied on Bajramovic v Calubaquid and Nominal Defendant v Manning; Held –  Miller v Secretary, Department of Communities and Justice authority for proposition that not necessary to determine whether power exercised by Commission administrative or judicial; issue estoppel not arise because application is interlocutory in nature and there has been a change in circumstances; claimant denies involvement of unidentified vehicle; dismissal of Notice of Motion in District Court; complex issues of liability; “just” resolution of proceedings means claim not suitable for assessment; exemption recommended.

Decision date: 19 October 2022| Member: Susan McTegg

Visser-Lewis v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 578

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 made about three and half months late; administrative oversight in lodging the application on time; outstanding medical assessment dispute; 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.

Decision date: 20 October 2022| Member: Maurice Castagnet

AlHelou v AAI Limited t/as GIO [2022] NSWPIC 579

Miscellaneous claims assessment; claimant involved in a single vehicle motor accident; claim made for statutory benefits; insurer denied claim after 26 weeks because it determined that, for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (2017 Act)  the accident was caused wholly by the fault of the clamant; accident occurred in heavy rain; claimant lost control of his vehicle as or shortly after he entered the roundabout; Held – the speed at which the claimant’s vehicle was travelling as it entered the roundabout was too fast in the circumstances; the accident was caused by the fault of the claimant and no other person; for the purposes of sections 3.11 and 3.28 of the 2017 Act; the accident was caused wholly by the fault of the claimant.

Decision date: 20 October 2022| Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Broadbent v Superior Food Group Pty Ltd [2022] NSWPIC 571

Claim for section 60 of the Workers Compensation Act 1987 compensation for the costs of and incidental to L54/S1 discectomy and neurolysis; accepted left knee injury following fall from a truck; whether injury to lower back in the injurious event or consequential lower back condition resulting from injury; pre-existing conditions in the knees, hip and back; Held – applicant failed to discharge onus of establishing injury to the lower back; evidence of altered gait following surgeries to left knee as a result of injury; applicant’s treating and medicolegal evidence accepted; left knee injury materially contributed to the back condition and need for surgery; proposed surgery reasonably necessary as a result of the injury; award in favour of the applicant.

Decision date: 14 October 2022| Member: Rachel Homan

Pascoe v Aldi Stores (A Limited Partnership) [2022] NSWPIC 572

Application for lump sum benefits for whole person impairment (WPI); whether there was a causal nexus between the accepted left foot injury and the development of a right foot injury; whether both body parts should be part of the referral to the Medical Assessor for assessment of WPI entitlements pursuant to section 66(1) of the Workers Compensation Act 1987; Kooragang Cement Pty Limited v Bates (Kooragang), Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi, ACQ Pty Limited v Cook and Aircare Moore Pty Limited v Cook considered and applied; Held – award for the applicant; applying common sense principles in accordance with Kooragang; there was a causal nexus between the applicant’s accepted left foot injury and the development of tendonitis in the applicant’s right foot/ankle.

Decision date: 14 October 2022| Member: Christopher Wood

Booth v Tech2Home (Communications) Pty Ltd [2022] NSWPIC 573

Claim for weekly payments and medical expenses; whether the effects of the work injury to the lower back had ceased; whether the worker has no current capacity or has an ability to earn in suitable employment; reference to Wollongong Nursing Home v Dewar and Popal v Myer Holdings Pty Ltd; Held – the worker continues to suffer the effects of the work injury; the worker has an ability to earn in suitable employment; award of weekly payments pursuant to section 37(3) of the Workers Compensation Act 1987; the respondent to pay the worker’s reasonably necessary medical expenses for treatment for the injury to the lower back.

Decision date: 17 October 2022| Member: John Isaksen

Omar v Toll Personnel Pty Limited [2022] NSWPIC 574

Undisputed lumbar spine injury; disputed left hip injury which is alleged to be injured at the same as the back and/or as a result of a consequence of the lumbar spine injury; when all of the evidence weighed in the balance, satisfied on the balance of probabilities that the applicant suffered a consequential condition in his left hip as a result of his lumbar spine injury on 17 March 2021; when all of the evidence weighed in the balance not able to be satisfied that the applicant suffered an injury to his left hip on 17 March 2021; such injury consisting in the aggravation of an underlying disease in the left hip to which employment was the main contributing factor to the aggravation; Held – award for the respondent on the allegation of injury to the left hip; award for the applicant on the allegation of a consequential condition in the left hip.

Decision date: 17 October 2022| Member: Jane Peacock

Martino v DGL (Aust) Pty Limited [2022] NSWPIC 575

Claim for permanent impairment compensation and medical expenses; the applicant suffered an accepted right ankle injury and accepted consequential conditions to his wrists; he brought proceedings for permanent impairment compensation in respect of those body systems and in relation to a disputed alleged consequential condition to his lumbar spine said to have been caused by altered gait; Held – the applicant suffered a consequential condition to his lumbar spine as a result of altered gait caused by the accepted ankle injury; the contemporaneous evidence and findings on examination of reduced movement in the ankle are consistent with the applicant’s complaints of altered gait over an extended period of time; a common sense evaluation of the medical and lay evidence therefore supports a finding of consequential condition to the lumbar spine; respondent ordered to pay applicant’s reasonably necessary medical expenses on the claimed body systems; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor.

Decision date: 18 October 2022| Member: Cameron Burge

Nolan v Trent Visscher t/a In Time Roofing [2022] NSWPIC 576

Claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in respect of injury to nervous system and lumbar spine when applicant fell from a ladder; respondent disputed that the applicant was either a worker or deemed worker; applicant relied mainly on “deemed worker”, pursuant to Schedule 1, clause 2 of the1987 Act;parties agreed that if applicant established he was a worker or deemed worker, medical dispute to be referred to Medical Assessor (MA); consideration of Scerri v Cahill, Humberstone v Northern Timber Mills, Pasqua v Morelli Constructions Pty Ltd, Zuijs v Wirth Brothers Pty Ltd, Stevens v Brodribb Sawmilling Co Pty /ltd; Hollis v Vabu, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, Higgins v North Coast Theatres & Drive-ins Pty Ltd and Djuric v Kia Ceilings Pty Ltd; Held – the applicant was a deemed worker of the respondent at the date of the injury; the matter is remitted to the President for referral to a MA, or MAs, for assessment of permanent impairment as a result of injury to the nervous system and lumbar spine.

Decision date: 19 October 2022| Senior Member: Kerry Haddock

Workers Compensation Medical Appeal Panel Decisions

Coote v Secretary, Department of Communities and Justice [2022] NSWPICMP 400

Appeal against Medical Assessor’s (MA) finding of 8% for psychological injury; whether MA applied incorrect evaluations in three of the six Psychological Impairment Rating Scale categories; Held – nothing demonstrated in appellant’s submissions but a mere difference of opinion; Ferguson v State of New South Wales and Jenkins applied; path of reasoning clearly displayed; Chan and Wingfoot considered; Medical Assessment Certificate confirmed.

Decision date: 13 October 2022| Panel Members: Member John Wynyard, Dr Michael Hong and Dr Patrick Morris | Body system: Psychiatric/Psychological

State of New South Wales (Sydney Local Health District) v Azer [2022] NSWPICMP 401

Appeal by employer from 18% whole person impairment for cervical spine injury; whether Medical Assessor’s (MA) reasons adequate; whether MA entitled to rely on year old expert report to supply radiculopathy findings pursuant to chapter 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021); whether MA correct to assess impairment on the beneficial nature of the workers compensation scheme;  Held – legislative basis for guidelines considered; MA admitted inability to find radiculopathy considered; reasons inadequate to explain path of reasoning; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan applied; beneficial nature of scheme irrelevant in the absence of any ambiguity of inconsistency; Project Blue Sky v ABA considered; nature of guidelines considered ADCO Constructions Pty Ltd v Goudappel applied; worker re-examined, Medical Assessment Certificate revoked.

Decision date: 13 October 2022| Panel Members: Member John Wynyard, Dr Gregory McGroder and Dr Brian John Stephenson | Body system: Lumbar Spine and Left Upper Extremity

Lewis v Torbole Pty Limited ATF Braithwaite Family [2022] NSWPICMP 402

Psychological injury; application of the Psychological Impairment Rating Scale in the categories of self-care and personal hygiene and concentration, persistence and pace; Appeal Panel concluded that the Medical Assessor (MA) did not err and it was open to the MA to assess the appellant worker as class 2 in these categories; Held – Medical Assessment Certificate confirmed.

Decision date: 14 October 2022| Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

James & Par v Scanes [2022] NSWPICMP 403

The appellant submits that the Medical Assessor erred in failing to make any deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Panel found no evidence of a pre-existing impairment to warrant a deduction; the only radiological evidence post-dated the injury; Held – Medical Assessment Certificate confirmed.

Decision date: 14 October 2022| Panel Members: Deborah Moore, Dr James Bodel and Dr Gregory McGroder | Body system: Right Lower Extremity

Coles Supermarkets Australia Pty Ltd v Cayir [2022] NSWPICMP 404

Appeal from assessment of whole person impairment; right upper extremity wrist; left upper extremity wrist; whether Medical Assessor erred in assessing impairment due to a pain condition without diagnosing complex regional pain syndrome; whether maximum medical improvement reached; Held – the Panel adopts the assessment and reasoning of Medical Assessor Stephenson; the Medical Assessment Certificate of Medical Assessor Anderson is revoked.

Decision date: 18 October 2022| Panel Members: Member Richard Perrignon, Dr David Crocker and Dr John Brian Stephenson | Body system: Right and Left Upper Extremity

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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