Legal Bulletin No. 82

Issued 14 October 2022

Welcome to the eighty-second 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 conclusion of the Bulletin.

Motor Accidents non-Presidential Member Decisions

BBK v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 537

Motor Accident Injuries Act 2017 (2017 Act); statutory benefits claim; denial of liability for ongoing benefits under sections 3.11 and 3.28 of the 2017 Act on basis that accident caused wholly or mostly by his fault; accident occurred on a straight stretch of country road when claimant drove off the road at speed and the car rolled multiple times; claimant told police and insurer and member at the first teleconference that the accident occurred when he swerved to avoid a dog like animal on the road; claimant later resiled from that evidence and said the accident occurred because he had the intention of committing suicide; hospital notes obtained by the insurer confirmed this version of events; Held – the claimant was wholly at fault; while the claimant had been depressed; there was no evidence that he was delusional at the time and that he made the conscious if not impulsive decision to take his own life.

Decision date: 22 July 2022| Member: Belinda Cassidy

BAX v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 538

Claimant injured in motor accident at 3 April 2021; claimant suffered a right femoral comminated fracture, left 4-7 and right 6-8 rib fractures, right knee injury and a left shoulder injury; claim for statutory benefits made; insurer accepted liability for claim; claimant moved to The Netherlands; insurer ceased making weekly payments on the basis that he resided outside Australia; application of section 3.21 of the Motor Accident Injuries Act 2017 (2017 Act); where provision amended while the proceedings were on foot by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022; consideration of transitional provisions; whether the claimant has a loss of earning capacity that is likely to be of a permanent nature; Held – the amendments to section 3.21 of the 2017 Act apply to these proceedings; the claimant’s loss of capacity as a result of injuries he sustained in the accident is likely to be of a permanent nature.

Decision date: 5 August 2022| Member: Brett Williams

QBE Insurance (Australia) Limited v Ren [2022] NSWPIC 541

Settlement approval; 78-year-old female; injuries to both lower limbs, right knee and left ankle requiring surgical fixation; psychological injuries resolved; 13% whole person impairment entitlement to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 23 September 2022| Member: Shana Radnan

QBE Insurance (Australia) Limited v Willey [2022] NSWPIC 542

Settlement approval; 70-year-old male; motorbike accident; injuries; left shoulder acromioclavicular joint; residual separation; compound fracture left mid tibia/fibula; surgical intervention rib fracture and multiple abrasions left elbow; 13% whole person impairment entitlement to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 26 September 2022| Member: Shana Radnan

Scott v AAI Limited t/as GIO [2022] NSWPIC 544

Miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant sustained serious injury; claimant riding motorcycle travelled behind bus in lane 2 before moving into lane 1 as the bus commenced to make left hand turn colliding with the bus; Held – bus activated left hand indicator at time claimant travelling behind bus in same lane; indicator was working; claimant failed to observe indicator and “do not overtake turning vehicle” sign on rear of bus; claimant failed to observe the slowing of the bus and the movement of the bus (albeit briefly) into lane one before attempting to drive past the bus; claimant failed to keep a proper lookout; claimant was wholly at fault for accident; costs assessed on the basis of exceptional circumstances.

Decision date: 30 September 2022| Member: Susan McTegg

George v AAI Limited t/as AAMI [2022] NSWPIC 545

Motor Accident Injuries Act 2017 (2017 Act); claim for damages; reinstatement of claim application; no dispute about failure to provide particulars; no dispute with form or timing of notice to provide particulars; no dispute that the claim is taken to be withdrawn; claim is to be reinstated if claimant has a full and satisfactory explanation for the failure to provide the particulars; insurer concedes explanation is full; explanation is that unsophisticated claimant relied on his solicitor and his solicitor failed to diarise the date for the provision of particulars; Held – claimant has a full and satisfactory explanation for his failure to comply with the duty to provide particulars under section 6.25 of the 2017 Act; it was reasonable that he relied on his solicitor and did not follow up his solicitor; claim reinstated under s 6.26(6) of the 2017 Act.

Decision date: 30 September 2022| Member: Belinda Cassidy

Insurance Australia Limited t/as NRMA Insurance v Dash [2022] NSWPIC 550

Application for settlement approval; claimant not legally represented; claimant injured on 16 November 2021 when insured driver exited driveway onto the road and collided with the claimant riding his motorbike; claimant suffered fracture of the right neck of his femur and requiring a prosthesis; insurer conceded whole person impairment greater than 10% and settlement able to be considered within two years of accident; medical evidence obtained indicating possibility of accelerated arthritis and replacement of prosthesis; initial offer of settlement of $250,000 all-inclusive not accepted by member; further negotiations undertaken between the parties and matter resolved $320,000 all inclusive; Held – settlement approved for $320,000 all inclusive.

Decision date: 6 October 2022| Member: Alexander Bolton

Workers Compensation non-Presidential Member Decisions

BAW v LWB Disability Services South Limited [2022] NSWPIC 539

Psychological injury; applicant has significant history of psychological conditions and alleges being subjected to intimidating behaviour by employer through several employment events; Held – applying Attorney General v K applicant held perception of real events causing psychological injury and applying Hamad respondent’s section 11A of the Workers Compensation Act 1987 defence not made out due to absence of medical evidence; award in favour of the applicant for weekly payments and general order in respect to section 60 expenses.

Decision date: 10 August 2022| Member: Phillip Young

Asadi v Gabi Duta Pty Ltd t/as Gabi's Agricultural Labour Services [2022] NSWPIC 540

Claim for whole person impairment compensation as a result of injury to the lumbar spine, thoracic spine, cervical spine and both shoulders; whether disease of gradual process; whether conditions aggravated, accelerated, exacerbated or deteriorated by nature and conditions of employment; Held – the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the lumbar spine;the nature and conditions of employment with the respondent were the main contributing factors to the contraction, aggravation and deterioration of a repetitive strain condition of the thoracic spine; the applicant’s employment as a labourer from 2002 to 2006, including employment in the respondent’s vineyard, was the main contributing factor to the contraction of diseases of gradual process in the lumbar spine, thoracic spine, cervical spine and shoulders;the respondent was the last employer to employ the respondent in employment as a labourer, the applicant’s employment as a labourer was employment to the nature of which diseases of his lumbar spine, thoracic spine, cervical spine and shoulders were due.

Decision date: 23 September 2022| Member: Richard Perrignon

Laverty v Council of the City of Newcastle [2022] NSWPIC 543

Mr Laverty died of a heart attack injury whilst participating in the certification process for a casual lifeguard employed by the respondent; the proceedings were brought by the widow for the payment of the lump sum death benefit and funeral expenses; Mr Laverty had a history of cardiac problems including two prior cardiac arrests and severe narrowing of arteries; the allegation that Mr Laverty suffered a thrombus during the swim and sustained a section 4(a) of the Workers Compensation Act 1987 (1987 Act) injury rejected as both doctors who initially provided that opinion subsequently accepted that it probably developed before the swim; medical explanation provided by Dr Clifton of the association between exercise and ischaemia the temporal connection between the swimming test and the onset of arrhythmia; consistent with Dr Herman’s evidence finding made that the exercise provoked the ischaemia through a reduced blood supply resulting in electrical instability and contributing to cardiac arrhythmia; Held – this process aggravated the underlying severe cardiac disease within the meaning of section 4(b)(ii) of the 1987 Act; no other non-work causes were relevant to the aggravation; the employment was the main contributing factor to the aggravation of the disease: AV v AW applied; the applicant had not satisfied the test in section 9B of the 1987 Act because Mr Laverty’s condition prior to the swim was critical; Mr Laverty was at very high risk of suffering an arrhythmic cardiac event without any precipitating activity; the ischaemia developed in the right coronary artery which was effectively blocked due to the pre-existent plaque and superimposed thrombus; any or nil activity with Mr Laverty’s condition could cause arrythmia; and the energy expended in the swim was not significant considering that Mr Laverty was fit for swimming and the expenditure of that type of energy was contrasted with other normal daily activities; award for the respondent.

Decision date: 29 September 2022| Principal Member: John Harris

Pearsall v Port Stephens Council [2022] NSWPIC 546

Claim for weekly compensation and whole person impairment compensation; whether worker suffered psychological injury; reasonable actions of employer with respect to discipline and transfer; whether whole or predominant cause of psychological injury; Held – the applicant suffered psychological injury by way of an Adjustment Disorder on 7 November 2017 (deemed date) as a result of an accumulation of stressors in the employ of the respondent from 2014 to 2017; the applicant’s employment with the respondent was a substantial contributing factor to his psychological injury and the main contributing factor; Member not satisfied that the whole or predominant cause of the psychological injury was actions of the employer with respect to discipline, dismissal or transfer.

Decision date: 4 October 2022| Member: Richard Perrignon

Zona Coatings Pty Ltd v Zrinski & Ors [2022] NSWPIC 547

Apportionment of a lump sum death benefit; liability admitted; claim for interest; Held – orders made for apportionment; order for the payment of interest at 2% above Reserve Bank of Australia rate once claim fully particularised.

Decision date: 5 October 2022| Member: John Isaksen

Kovacevic v Toll Group Pty Ltd [2022] NSWPIC 548

Claim for permanent impairment; accepted claim for injury to right upper extremity (right shoulder); disputed claim for consequential condition of left upper extremity (left shoulder) as result of overuse due to favouring injured right shoulder; lack of contemporaneous evidence of complaints in respect of left shoulder; inconsistent evidence of applicant; applicant’s evidence refuted by respondent’s lay witnesses; consideration of Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Kooragang v Bates and Nguyen v Cosmopolitan Homes; Held – the applicant has not satisfied the onus of establishing consequential condition of the left upper extremity as a result of injury to the right upper extremity; award for the respondent with respect to the claim for consequential condition of the left upper extremity; as assessment of permanent impairment as a result of injury to right upper extremity is not greater than 10%, medical dispute may not be referred to a Medical Assessor.

Decision date: 5 October 2022| Senior Member: Kerry Haddock

Cheung v Taiyun Oceania Travel Pty Ltd [2022] NSWPIC 549

Pre-Injury Average Weekly Earnings (PIAWE) dispute; applicant sole income earner for respondent company which applicant formed at request of supplier of delivery work; whether the figure appearing in respondent tax return for his work as ‘contractor’ the measure of his PIAWE; Held – sections 44C and 44E as preserved of the Workers Compensation Act 1987 considered; DPP v Olsen, Cage Developments Pty Ltd v Schubert, Litigation Lending Management Pty Ltd v Powell and Winfield v Kelly’s and Young trucking co Pty Ltd considered; ordinary earnings were those earned by the applicant as shown in respondent’s tax returns as ‘receipts’; reference to ‘contractor’ an accounting exercise and not accurate reflection of applicant’s ‘reward for labour’; Cage Developments Pty Ltd v Schubert applied; but evidence of deductions in tax returns not explained and submission that deductions immaterial where worker supplied  all the respondent’s income rejected; cost of replacement worker to do delivery driving and administration of respondent applied.

Decision date: 5 October 2022| Member: John Wynyard

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Turner [2022] NSWPICMP 372

Whole person impairment dispute; car and pedestrian collision; accident on 22 September 2018; injuries to left shoulder, lumbar spine and left hip; late onset of low back pain; causation considered; Held – the Panel revokes the certificate of Medical Assessor Sharp dated 29 May 2021; the Panel determines that the following injuries were caused by the motor accident: cervical spine (soft tissue injury), lumbar spine (soft tissue injury), left shoulder (soft tissue injury); the injuries caused by the motor accident have a total whole person impairment of 8%.

Decision date: 6 September 2022| Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr David McGrath | Injury module: Spine and Upper and Lower Limb

Ayres v Insurance Australia Limited t/as NRMA Insurance (No 1) [2022] NSWPICMP 373

The claimant suffered injury in a motor accident 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision; Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine; the present Panel were constituted only to determine dysfunction of the temporomandibular joint (TMJ) impeding mastication; the claimant suffered a significant head on collision with a telegraph pole causing serious fractures in the cervical spine; TMJ dysfunction established as there were no prior problems; this was a serious neck injury and complaint was made within a short period; observations of the relevance of pain in assessing TMJ dysfunction impeding mastication; the Medical Assessors noted objective symptoms of TMJ dysfunction from tenderness on palpation and crepitus and assessed the claimant’s impairment at the lower end of the range because of the nature of the restriction of diet and the extent of the pain which is reasonably controlled; Held – claimant assessed at 5% impairment for temporomandibular joint impeding mastication.

Decision date: 26 September 2022| Panel Members: Principal Member John Harris, Dr David Sykes and Dr Geoffrey Curtin | Injury module: Dental Injury

Ayres v Insurance Australia Limited t/as NRMA Insurance (No 2) [2022] NSWPICMP 374

The claimant suffered injury in a motor accident 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision; Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine; the present Panel were constituted to assess impairment of the cervical spine and any impairment of the upper extremities based on Nguyen principles; observations of the assessment of fractures in the cervical spine; the restriction in loss of range of shoulder movement caused by the motor accident is medically plausible given the severity of the cervical spine injury; Held – claimant assessed at 5% impairment for the cervical spine and 3% for each upper extremity; combined certificate issued with the Panel assessment for dysfunction of the temporomandibular joint impeding mastication.

Decision date: 26 September 2022| Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Shane Moloney | Injury module: Spine and Upper Extremity

Insurance Australia Limited t/as NRMA Insurance v Robson [2022] NSWPICMP 375

Motor Accident Injuries Act 2017 (2017 Act);  medical assessment of whole person impairment (WPI) and claimant’s review under section 7.26 of the 2017 Act; original Assessor (Harrington) had assessed WPI at 16% - 5% for cervicothoracic, 5% for thoracolumbar injuries and 7% for a right wrist injury; insurer’s application for review on basis of two methodological errors in wrist impairment; Held – following re-examination cervicothoracic impairment at 5% due to presence of dysmetria and no impairment in thoracolumbar spine; wrist impairment calculated at 8% therefore total WPI was 13% which was greater than 10%; no issue of principle.

Decision date: 27 September 2022| Panel Members: Member Belinda Cassidy, De Neil Berry and Dr Shane Moloney | Injury module: Spine and Upper Limb

QBE Insurance (Australia) Limited v Gadd [2022] NSWPICMP 376

Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the 1999 Act; original Assessor (Samuell) had assessed 0% WPI; claimant was grandmother of 19 year old girl killed when she was walking home after a night out; the deceased had lived with her mother at her grandmother’s home until the age of 14 and had remained closely connected to her grandmother at the time of her death; the 62 year old claimant sustained pure mental harm in the form of a Major Depressive Disorder; Held – claimant’s WPI 15%; no issue of principle.

Decision date: 27 September 2022| Panel Members: Belinda Cassidy, Dr Samuel Lim and Dr Wayne Mason | Injury module: Mental and Behavioural

AAI Limited t/as AAMI v Ali [2022] NSWPICMP 377

The claimant suffered injury in a motor accident on 24 August 2018 from a T-bone collision suffering a fractured sternum and other soft tissue injuries; the issue was the extent of permanent impairment and whether physiotherapy was reasonable and necessary; the claimant was reassessed; no issues of principle; findings made that initial shoulder symptoms were probably due to the fractured sternum and aggravation of cervical spine condition; the spine was assessed as Diagnosis Related Estimate (DRE) I; crepitus found in right knee which suffered injury due to impact on the dashboard; the claimant has an extensive pain condition over a number of years; the provision of physiotherapy according to the physiotherapy plan is not necessary as in light of the claimant’s presentation and past history no there benefit was expected; Held – claimant assessed below 10% threshold; physiotherapy held not to be necessary and would not assist recovery.

Decision date: 27 September 2022| Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb and Digestive

Vella v AAI Limited t/as GIO [2022] NSWPICMP 378

The claimant suffered injury in a motor accident on 6 January 2020 when another vehicle turned in front causing a T-boned impact at speed; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 (2017 Act); the Panel concluded that the claimant did not suffer a non-minor injury; the claimant confirmed on examination that the symptoms developed over a ten-day period following the motor accident; the delay in onset of symptoms, absence of direct trauma and the nature of the initial complaints is inconsistent with traumatic injury to the right shoulder; the shoulder tear can be present in the absence of symptoms and is otherwise consistent with the claimant’s age; Panel accept that claimant injured his cervical spine causing radicular type symptoms into the right shoulder; however there were no recorded sign, and none shown on examination of radiculopathy as defined in clause 5.8 of the Motor Accidents Guidelines Version 8.2 (Effective from 8 April 2022) (Guidelines); radicular pain is not an objective sign of radiculopathy as defined in the Guidelines; Held – original assessment confirmed; findings made that claimant sustained a minor injury to the cervical spine.

Decision date: 28 September 2022| Panel Members: Principal Member John Harris, Dr Neil Berry and Dr Ian Cameron | Injury module: Spine and Upper Limb

Sydney Trains v Brookes (No 1) [2022] NSWPICMP 382

On 22 January 2018 the claimant was on a train waiting at the door to alight when the train hit the buffer at the end of the line; the accident constitutes a ‘public transport accident’ for the purposes of the Transport Administration Act 1988; damages assessed under chapter 5 of the Motor Accidents Compensation Act 1999; the claimant suffered fractured ribs, fractured nasal bones, a laceration to the forehead and an abrasion to the left patella; on 14 May 2018 the claimant diagnosed with thrombosis in the left popliteal artery; on 8 January 2019 claimant diagnosed with a pulmonary embolism; injuries referred for assessment were pulmonary embolism, left knee - thrombosed left popliteal artery aneurysm secondary to trauma and rib – fractured 4^th, 6^th, 7^th and 8^th ribs; question of causation of the aneurysm of the right popliteal artery and resulting amputation; Held – injury to the patella remote from anatomical location of the popliteal artery; claimant predisposed to thrombosis; no evidence of vascular insufficiency until three months post-accident; calcification reported in the atherosclerotic plaques, the left posterior tibial artery, the right posterior tibial artery and the right common iliac artery on 14 May 2018; angiogram on 24 May 2021 reported extensive atherosclerotic plaques in both lower limbs; thrombosis in the popliteal artery not caused by the accident; pulmonary embolism on 8 January 2019, nearly one year after the accident was too remote in time to be causally connected to the accident; pulmonary embolism not caused by the accident; fractured right 4^th, 6^th, 7^th and 8^th rib fractures caused by accident; fractured ribs healed; clause 6.23 of Guidelines uncomplicated healed rib fractures do not result in permanent impairment; panel assessed 0% whole person impairment.

Decision date: 22 November 2022| Panel Members: Member Susan McTegg, Dr Wing Chan and Dr Drew Dixon | Injury module: Upper and Lower Limb and Cardiovascular

Sydney Trains v Brookes (No 2) [2022] NSWPICMP 383

On 22 January 2018 the claimant was on a train waiting at the door to alight when the train hit the buffer at the end of the line; the accident constitutes a ‘public transport accident’ for the purposes of the Transport Administration Act 1988; damages assessed under chapter 5 of the Motor Accidents Compensation Act 1999; the claimant suffered fractured ribs, fractured nasal bones, a laceration to the forehead and an abrasion to the left patella; on 14 May 2018 the claimant diagnosed with thrombosis in the left popliteal artery; injuries referred for assessment left knee soft tissue injury, amputation secondary to thrombosed left popliteal artery aneurysm; fractured nose with deformity; skin – left knee scarring; question of causation of the aneurysm of the right popliteal artery and resulting amputation; Held – injury to the patella remote from anatomical location of the popliteal artery; claimant predisposed to thrombosis; no evidence of vascular insufficiency until three months post-accident; thrombosis in the popliteal artery was not causally related to the accident; claimant sustained soft tissue injury to the knee; 5% whole person impairment (WPI) for nasal deformity; scarring caused by surgery for complication of arterial thrombosis not caused by the accident; WPI not greater than 10%.

Decision date: 22 November 2022| Panel Members: Member Susan McTegg, Dr Wing Chan and Dr Michael McGlynn | Injury module: Upper and Lower Limb and Minor Skin

Workers Compensation Medical Appeal Panel Decisions

Namoi Cotton Co-Operative Ltd v Todd Galagher [2022] NSWPICMP 380

Respondent submitted that the Medical Assessor (MA) erred in assessment of activities of daily living (ALDS) and in failing to address Mr Galagher’s history of pre-existing back and sciatic complaints and in failing to apply a deduction for pre-existing injury, condition or abnormality pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – Panel confirmed assessment of ALDS but concluded MA erred in not making a deduction pursuant to section 323 of the 1998 Act; Medical Assessment Certificate revoked.

Decision date: 4 October 2022| Panel Members: Member Carolyn Rimmer, Dr David Crocker and Dr Roger Pillemer | Body system: Lumbar Spine

Craig Edward McInerney v Glassons Body Works Pty Ltd [2022] NSWPICMP 381

Worker submitted that Medical Assessor (MA) incorrectly applied a deduction for previous injury; Panel found MA made an error in that he chose to calculate the impairment that was pre-existing and then deduct it from the current impairment; MA made an assumption that even though the treatment of the first injury on 16 January 2014 to Mr McInerny’s spine had succeeded, the very fact of the existence of that prior injury ‘irrespective of outcome’ resulted in an impairment which must have contributed to the impairment which arose after the second injury on 7 August 2019; Held – Medical Assessment Certificate revoked.

Decision date: 4 October 2022| Panel Members: Member Carolyn Rimmer, Dr Drew Dixon and Dr Roger Pillemer | Body system: Lumbar Spine, Left Lower Extremity and Skin/Scarring

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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