Legal Bulletin No. 87

Issued 18 November 2022

Welcome to the eighty-seventh 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

Ferrell v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 605

Motor Accident Injuries Act 2017; claim for statutory benefits; denial of liability after 26 weeks on basis claimant wholly or mostly at fault; claimant rider of Harley Davidson motorcycle testing out new highway foot pegs who lost control on corner and was ejected and collided with tree; insurer said claimant wholly at fault for failing to keep a proper lookout and looking down at his foot pegs as he rounded a corner; Held – claimant travelling at 40 – 50 kms in a 60 km zone therefore speed not a factor; claimant looked down but only very briefly and this was reasonable; there was loose gravel on the road related to repairs and patches on the road; claimant lost control when his bike hit the loose gravel which he did not see in time; claimant not wholly at fault.

Decision date: 6 October 2022| Member: Belinda Cassidy

Le v Allianz Australia Insurance Limited [2022] NSWPIC 607

The claimant sustained injury in a motor vehicle accident on 13 February 2019; the application for common law damages was filed in the Personal Injury Commission on 11 July 2022; whether the claimant had provided a full and satisfactory explanation for the failure to refer the claim for assessment within 3 years of the date of accident; the insurer did not object to the claim being referred for assessment; Held –the claimant’s explanation was full; the explanation was satisfactory; the claimant has limited English skills; she received statutory payments from the insurer; she consulted a lawyer who failed to advise her of her entitlement to pursue a claim for common law damages or of the limitation period; the limitation period expired after that lawyer terminated the retainer and before she sought further advice; explanation satisfactory when considering the reasonableness of a person in the actual position of the claimant per Buller v Black; the proceedings can be referred for assessment.

Decision date: 21 October 2022| Member: Susan McTegg

Insurance Australia Limited t/as NRMA Insurance v Rumble [2022] NSWPIC 616

Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for non-economic loss; claimant now 86 years of age; injured as driver; fractured ribs; injury to cervical and thoracic spine; headache; post-concussion syndrome; dizziness; light headedness; feeling “spaced out”; impaired balance; post-traumatic stress disorder; major depression; pre-accident the claimant was independent and able to drive independently; post-accident capacity for domestic tasks limited; housebound; no longer able to drive or use public transport; unable to express self; Held – claimant sustained serious injury; accident has adversely impacted the claimant’s quality of life with no likelihood of improvement; settlement approved.

Decision date: 4 November 2022| Member: Susan McTegg

CIC Allianz Insurance Limited v Yoong [2022] NSWPIC 617

Settlement approval; 50-year-old female; injuries to left ankle and right elbow; left ankle requiring surgical fixation; economic losses only; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 7 November 2022| Member: Shana Radnan

Dykes v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 618

Assessment of damages; claimant injured in rear end collision; underwent two spinal fusions; extent of injuries and previous accidents in dispute; claimant was the owner operator of a carpet laying business; accepted incapacitated to continue to carry out these work activities; insurer paid statutory benefits based on erroneous calculation; claimant relied on this calculation to assess economic losses; further question whether claimant has a residual earning capacity; Held – regardless of the statutory benefits paid the pre-accident weekly earnings were based on evidence in the claimant’s tax returns and his statement; accepted the claimant had a future 50% residual earning capacity plus a buffer for loss of opportunity; non-economic loss assessed having regard to the claimant’s age and loss of amenities.

Decision date: 7 November 2022| Member: Elyse White

QBE Insurance (Australia) Limited v Magtoto [2022] NSWPIC 619

Settlement approval; prior Injuries; loss of vocational opportunities; Held – the amount of the claim for damages is approved in the total amount of $70,000.

Decision date: 7 November 2022| Member: Hugh Macken

Allianz Australia Insurance Limited v Iatrou-Kosterman [2022] NSWPIC 621

Damages claim; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; car vs pushbike; driver did not see pushbike and clipped the rear of the bike; fractured scaphoid; short time in hospital; full recovery; past economic loss only; Held - settlement of $4,114.73 approved as just, fair and reasonable, and within the range of likely outcomes.

Decision date: 8 November 2022| Member: Terence Stern

Workers Compensation non-Presidential Member Decisions

Bosevska v ISS Property Services Pty Ltd [2022] NSWPIC 606

Claim for permanent impairment compensation; whether applicant suffered injury to right knee in the course of her employment with the respondent; Held – the applicant suffered an injury in the course of her employment; although the precise date of injury is not known the respondent does not allege any prejudice arises from that uncertainty; that the evidence relied on by the applicant in support of her claim was known to the respondent and dealt with by its medical expert before the commencement of proceedings; Castro v State Transit Authority (NSW) referred to; although the applicant had pre-existing degenerative changes in her right knee the evidence discloses they were asymptomatic at the time of injury; that those changes were aggravated by the injurious events at issue; the applicant’s employment was the main contributing factor to the aggravation of that condition; Federal Broom Co Pty Ltd v Semlitch and Motor Body Repairers (NSW) Pty Ltd v Raymond referred to; Zickar v MGH Plastic Industries Pty Ltd applied; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment to the right lower extremity (knee).

Decision date: 19 October 2022| Member: Cameron Burge

BJA v NSW Health Service – Arrum Aged Care & Ors [2022] NSWPIC 601

Lump sum apportioned in accordance with agreement between dependants; interest awarded from date claim duly made at a rate 2% above Reserve Bank of Australia cash rate; consideration of Holdlen Pty Limited v Walsh, McCafferty’s Management Pty Ltd v Pimlott, So v So, Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd and Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Held – the first respondent is liable for payment of lump sum compensation of $827,400, pursuant to section 25 of the Workers Compensation Act 1987.

Decision date: 28 October 2022| Senior Member: Kerry Haddock

Mulcahy v Workforce Road Services Pty Limited [2022] NSWPIC 608

The applicant claims weekly benefits payable under the Workers Compensation Act 1987 (1987 Act) for injury sustained to his low back and right shoulder on 21 June 2019 in the course of his employment with the respondent; injury and incapacity placed in issue by the respondent; Held – the applicant sustained injury to his low back and right shoulder on 21 June 2019; in the course of his employment with the respondent; employment being the main contributing factor to injury; the applicant has had no current capacity for work since 15 September 2019 resulting from the injury and the applicant has entitlement to weekly compensation payable under sections 36 and 37 of the 1987 Act from 15 September 2019.

Decision date: 3 November 2022| Member: Jacqueline Snell

Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 609

Claim for injury to right lower extremity; claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act);claim disputed by respondent and medical assessment required pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); injury to right ankle conceded by respondent but no assessment of any permanent impairment made (where assessments of permanent impairment otherwise made regarding the right hip, thigh, knee, calf, and scarring); consideration of applicant’s statement, medical reports and other treatment records and claim correspondence; consideration of whether the injury to the applicant’s right ankle forms part of the medical dispute to be referred to a Medical Assessor pursuant to section 319 of the 1998 Act; Shankar v Ceva Logistics (Australia) Pty Limited, Guzman v Trade West Pty Limited, Skates v Hills Industries Limited, Woolworths Limited v Stafford, Abou-Haidar v Consolidated Wire Pty Limited, Apps v Secretary, Department of Communities and Justice, McPherson v Mitre 10 Australia Pty Limited, Sukkar v Adonis Electrics Pty Limited and Etherton v ISS Property Services Pty Limited considered; Held – the injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with section 319 of the 1998 Act as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to section 66 of the 1987 Act; the medical dispute in relation to the other body systems/parts which had permanent impairment assessments made is remitted to the President for referral to a Medical Assessor in accordance with section 319 of the 1998 Act.

Decision date: 3 November 2022| Member: Gaius Whiffin

Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610

Separate accepted physical and psychological injuries; whether applicant is entitled to claim weekly compensation for two partial incapacities; requirement to establish separate and distinct incapacities for employment; Cordina Chicken Farmers Pty Ltd v Thuoa Hong Le discussed and followed; Held – the evidence discloses the applicant suffers separate and distinct incapacities as a result of his physical and psychological injuries; whether the applicant would have been promoted to inspector as alleged by him; the evidence does not discharge the applicant’s onus of proving he would have been promoted from sergeant to inspector as alleged, however, the applicant would have progressed to sergeant level 9; the applicant’s post-injury earnings reflect his capacity for employment; Aitkin v Goodyear Tyre Company) followed; whether the discretion in the former section 40(1) of the Workers Compensation Act 1987 (1987 Act) should be exercised to reduce the amount of compensation payable; Mitchell v Central West Health Service applied; aside from short periods of total incapacity and another where the applicant was not working despite being certified partially fit, this is not a matter where the discretion pursuant to section 40 of the 1987 Act should be exercised; the quantum of the applicant’s actual loss is readily identifiable; there is also no suggestion the value of applicant’s combined partial incapacities exceed the amount which he would have earned but for injury; respondent ordered to pay the applicant weekly compensation pursuant to section 40 of the 1987 Act.

Decision date: 3 November 2022| Member: Cameron Burge

Dawking v Secretary (Department of Education) [2022] NSWPIC 611

Claim for weekly benefits and expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) as a result of psychological injury suffered because of refusal to be double vaccinated for Covid-19; subsequent termination of employment for failure to comply with Public Health Order of NSW Government in respect of vaccination and Covid Vaccination Guidelines issued by the respondent; the respondent put in issue on the date claimed by the applicant and relied on a defence of reasonable action in respect of discipline pursuant to section 11A of the 1987 Act; Held – the applicant suffered psychologic injury arising out of or in the course of her employment with the respondent, which was a substantial contributing factor to injury; injury was not caused by reasonable action taken by the respondent with respect to discipline; awards in favour of the applicant for weekly benefits compensation and section 60 expenses of the 1987 Act.

Decision date: 3 November 2022| Member: Brett Batchelor

Walmsley v Adventist Health Care Limited [2022] NSWPIC 612

Claim for weekly payments for two and a half weeks when worker was incapacitated due to COVID-19; worker is employed as a registered nurse and seeks the benefit of section 19B of the Workers Compensation Act 1987 (1987 Act); respondent provides expert evidence to reverse the presumption in favour of the worker which she is afforded by section 19B of the 1987 Act;  Held – respondent is not able on the available evidence to reverse the presumption in favour of the worker; award of weekly payments for the period claimed.

Decision date: 3 November 2022| Member: John Isaksen

Crisafi v St George Smallgoods Pty Ltd [2022] NSWPIC 613

Claim for permanent impairment compensation; injury to lumbar spine and scarring accepted; liability for thoracic spine is denied; Held – the applicant has the onus of proving he suffered a thoracic spine injury; section 4 of the Workers Compensation Act 1987; including an identifiable pathological change to that body part: Castro v State Transit Authority (NSW) followed; the issue of whether the pathological changes in the applicant’s thoracic spine discovered 11 months post-injury were caused by the event in issue is to be determined by a common sense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates applied; the preponderance of the medical and lay evidence, including but not limited to the radiological findings and the complaint of thoracic spine pain in the days immediately following the incident at issue supports a finding the applicant suffered a thoracic spine injury; matter remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the thoracic spine, lumbar spine and scarring.

Decision date: 4 November 2022| Member: Cameron Burge

Cameron v Specialised Geo Services Pty Ltd [2022] NSWPIC 614

Claim for weekly benefits and compensation pursuant to section 60 of the Workers Compensation Act 1987 for right shoulder surgery; liability for surgery conceded; quantification of the applicant’s entitlement to weekly compensation; where applicant had returned to work in full-time employment; where vocational assessment reports obtained by the insurer assessed the applicant as being suitable for higher paid roles; “current weekly earnings”; Held – the applicant’s “current weekly earnings” were his actual gross earnings; despite a strong academic ability and having relevant qualifications the applicant had not worked in his field of study during the 3 ½ years since graduating; the applicant had applied for higher paying roles but was unsuccessful; roles identified in the vocational assessment typically required experience and/or qualifications the applicant did not possess; award for weekly compensation at varying rates.

Decision date: 4 November 2022| Member: Rachel Homan

BCP v Secretary (Department of Communities and Justice) & Ors [2022] NSWPIC 615

Claim for interest on lump sum death benefit pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; claim opposed by first respondent; orders for apportionment of lump sum and direction for written submissions on issue of interest made at preliminary conference; consideration of Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor, Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Pheeney v Doolan (No 2) and Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Held – award of interest from the date the claim was “duly made” at a rate 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum; interest payable to the second and third respondents to be paid to the NSW Trustee and Guardian.

Decision date: 4 November 2022| Senior Member: Kerry Haddock

Stainer v Hawkesbury Community & RSL Homes Ltd [2022] NSWPIC 620

Claim for further lump sum compensation for permanent impairment of the back and loss of use of both legs for injury in 1996; respondent raises issues in regard to the referral to a Medical Assessor for assessment; reference to Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; Held – rejection of issues raised by respondent; referral for assessment for permanent impairment of the back and loss of use of both legs.

Decision date: 7 November 2022| Member: John Isaksen

Wall v Woolstar Pty Limited [2022] NSWPIC  622

Claim by worker for permanent impairment compensation; issues as to date of injury and whether injuries could be assessed together either because they resulted from the “same injury” or were caused by the “same incident”; section 322 of the Workplace Injury Management and Workers Compensation Act 1998; Ozcan v Macarthur Disability Services Ltd and Warwar v Speedy Couriers considered; Held – claim remitted for medical assessment.

Decision date: 8 November 2022| Member: Paul Sweeney

Walker v Dalaigur Preschool and Children’s Services Association Inc [2022] NSWPIC 623

The applicant claims weekly benefits, medical and related treatment expenses and permanent impairment payable under the Workers Compensation Act 1987 (1987 Act); resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) of 1987 Act with respect to performance appraisal/and or discipline; Held – the applicant’s injury was not wholly or predominately caused by reasonable action taken by the hospital with respect to performance appraisal and/or discipline; the applicant has no current capacity for work and is likely to continue to have no current work capacity resulting from injury and has entitlement to weekly compensation payable under sections 36, 37 and 38 of the 1987 Act;as the applicant requires medical and related treatment she has an entitlement to compensation payable under section 60 of the 1987 Act; the applicant’s claim for permanent impairment compensation resulting from primary psychological injury with a deemed date of injury of 17 August 2018 is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the injury.

Decision date: 8 November 2022| Member: Jacqueline Snell

Francis v Scott Corporation Limited [2022] NSWPIC 624

Accepted left shoulder injury but alleged consequential conditions right shoulder (overuse) and cervical spine disputed; consideration of the medical evidence; respondent’s Independent Medical Examiner employed incorrect consequential condition test re causation and recorded inaccurate history; insufficient history regarding complaints of neck symptoms and no neck diagnostic pathology; Held – applicant’s right shoulder condition results from left shoulder injury but award for respondent in respect of alleged cervical spine condition.

Decision date: 9 November 2022| Member: Phillip Young

Motor Accidents Medical Review Panel Decisions

BBR v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 439

Medical Review Panel constituted under section 63 of the Motor Accidents Compensation Act 1999; dispute about whether the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10%; medical assessment under review certified that the exacerbation of pre-existing bipolar affective disorder caused by the accident did not give rise to a permanent impairment greater than 10%; Held – the accident had caused an exacerbation of bipolar II disorder and an aggravation of substance use disorder; to the extent that the claimant’s experience with the property damage insurer (in relation to the repair of his motorcycle as a result of damage it sustained in the accident) contributed to the exacerbation/aggravation of the claimant’s psychiatric conditions, the aggravation and exacerbation were indirect but foreseeable consequences of the accident; the claimant’s accident caused permanent impairment was not greater than 10%.

Decision date: 31 October 2022| Panel Members: Member Brett Williams, Dr Atsumi Fukui and Dr Thomas Newlyn | Injury module: Mental and Behavioural

Khalil v AAI Limited t/as AAMI [2022] NSWPICMP 440

The claimant suffered injury in a motor vehicle accident on 24 March 2019: the dispute related to the assessment of permanent impairment under the Motor Accident Injuries Act 2017; injury to cervical spine; injury to lumbar spine; injury to left shoulder; Held –soft tissue injuries to cervical spine, lumbar spine and left shoulder caused by accident; cervical spine diagnosis related estimate (DRE) cervicothoracic category I assessed at 0% whole person impairment (WPI); 0% WPI for injury to left shoulder; lumbar spine assessed as DRE lumbosacral category II assessed at 5% WPI; total WPI not greater than 10%.

Decision date: 1 November 2022| Panel Members: Member Susan McTegg, Dr Clive Kenna and Dr Margaret Gibson | Injury module: Spine and Upper Limb

Haasjes v Coates Hire Operations Pty Ltd [2022] NSWPICMP 441

The claimant suffered injury in a motor accident on 25 January 2017 when his right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers; the Panel originally assessed impairment at 12% including an allowance for sensory loss; the insurer asserted that the Panel had made an obvious error by not halving the figure allowed for sensory loss in accordance with a paragraph that provided the sensory loss is to be 50% of that due to imputation; section 61(11) of the Motor Accidents Compensation Act 1999 (1999 Act) provides that a Medical Assessor (MA) and a Panel under section 63(6) of the 1999 Act can correct a certificate if it contains an obvious error; the claimant did not concede obvious error; the parties made no submissions on the meaning of the provision; reference made to Goodwin v Motor Accidents Authority of New South Wales which provided that the error can be obvious from the reasons; the operative words of section 61(11) of the 1999 Act is that the certificate “contains an obvious error”; the provision does not restrict what can be considered in determining whether there is an “obvious error”; medical disputes frequently concern the degree of permanent impairment; the scope of that dispute under the 1999 Act contained in the certificate requires the application of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) as amended by the Motor Accident Permanent Impairment Guidelines (Guidelines); provided the error is “obvious” the language of the provision does not restrain the decision maker from looking at AMA 4 and the Guidelines in determining whether the certificate contains an obvious error; the error is contained in the certificate because it repeats the error from the reasons; clause 17.4 of the Guidelines provided examples of obvious error including “an accidental slip or omission”: Newmont Yandel Operations Pty Ltd v The J Aron Corporation referred to; the finding on the assessment of sensory loss was also an accidental slip or omission which can be corrected as an example of an obvious error; Held –  sensory loss recalculated; claimant reassessed at 10% permanent impairment; replacement certificate issued.

Decision date: 7 November 2022| Panel Members: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Shane Moloney | Injury module: Spine and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v BKA [2022] NSWPICMP 450

Claimant involved in two motor accidents ten months apart; pre-existing psychiatric condition; depression; psychiatric injury; Motor Accidents Compensation Act 1999; Held – original medical certificate set aside; previous Medical Review Panel certificate set aside in Slade v Insurance Australia Ltd trading as NRMA; remitted to Commission for reconsideration; review of reconsideration; claimant involved in first accident and then a near miss on same country road ten months later; claimant’s psychiatric condition and psychological injury was caused by the first accident; chronic and severe post-traumatic stress disorder and major depressive disorder; degree of permanent impairment caused by first motor accident is 26%; previous history of depression but Panel found 0% pre-existing whole person impairment prior to the first accident; Panel followed and applied principles in State Government Insurance Commission v Oakley; Panel found that category one of Oakley applied; in this case the injury or impairment resulting from a subsequent incident (the near miss) was treated as caused by the first motor accident; Slade v Insurance Australia Ltd trading as NRMA and State Government Insurance Commission v Oakley followed and applied; treatment and care dispute; forty-eight disputes; Panel found all previous psychiatric, psychological, pharmacological and general practitioner treatments did relate to the first motor accident and were reasonable and necessary; varying hours of past and future personal and domestic assistance has been and continue to be reasonable and necessary as a consequence of her psychological injury.

Decision date: 11 November 2022| Panel Members: Member Ray Plibersek, Dr Atsumi Fukui and Dr Wayne Mason | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Marneni v Programmed Skilled Workforce Ltd [2022] NSWPICMP 405

The appellant appealed the 0% whole person impairment (WPI) assessment; Medical Assessor assessed via Zoom; Panel wished to re-examine but impossible because appellant was in India and couldn’t return because she didn’t have a visa; Panel determined only way to proceed was on all the evidence before us; Panel satisfied appellant had genuine complaints; Held – Medical Assessment Certificate revoked and 14% WPI assessed.

Decision date: 17 October 2022| Panel Members: Member Deborah Moore, Dr Mark Burns and Dr Roger Pillemer | Body system: Cervical Spine and Left Upper Extremity

Zed Group Australia Pty Ltd v Naumovski [2022] NSWPICMP 442

Employer appeals from Medical Assessment Certificate (MAC) alleging a clerical error in the calculation of whole person impairment (WPI) of left shoulder and a failure by the Medical Assessor (MA) to make a deduction for a pre-existing cervical condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – the MA erred in recording calculations; the MA erred in failing to address medical evidence relating to a previous injury; on reassessment, the Panel found that the lengthy period during which the worker was symptomatic following a prior injury and the radiological evidence established that a pre-existing condition contributed to his current cervical impairment; deduction of 1/10^th appropriate; MAC revoked and new MAC issued.

Decision date: 7 November 2022| Panel Members: Member Paul Sweeney, Dr Mark Burns and Dr Drew Dixon | Body system: Cervical Spine and Left Upper Extremity

State of New South Wales (Western Sydney Local Health District) v Wright [2022] NSWPICMP 443

Respondent worker referred for assessment of whole person impairment (WPI) from psychiatric injury deemed to have happened on 5 December 2018; in earlier proceedings consent award made in favour of appellant for “additional injury alleged”; particularised as being aggravation and exacerbation of a psychological condition from workplace interactions after 5 December 2018; appellant submitted Medical Assessor’s (MA) assessment of respondent’s WPI included impairment related to events that occurred after 5 December 2018; Panel did not accept appellant’s submissions; Panel discussed as a hypothetical that even if MA did assess impairment due to events after 5 December 2018 then based on common law principles of causation any such impairment would be attributable to 5 December 2018 injury; Held – Medical Assessment Certificate upheld.

Decision date: 7 November 2022| Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychiatric/Psychological

State of NSW (NSW Police Force) v Pirie [2022] NSWPICMP 444

Appeal by employer against 15%  whole person impairment (WPI) assessment for right knee replacement surgery; whether a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) ought to have been applied; whether Medical Assessor (MA) ought to have referred to a medico-legal report; worker employed in 1973 when 18 years old; Held – relevant date of onset of osteoarthritis post-dated the commencement of employment and was accordingly not a pre-existing condition; Craigie v Faircloth & Reynolds Pty Ltd and Ors and Cullen v Woodbrae Holdings Pty Ltd considered and applied; MA presumed to have read the material referred to him and no error by the MA not to mention medico-legal report; Jones v The Registrar WCC and Bojko v ICM Property Service Pty Ltd considered and applied; Medical Assessment Certificate confirmed.

Decision date: 8 November 2022| Panel Members: Member John Wynyard, Dr James Bodel and Dr Mark Burns | Body system: Right Lower Extremity

State of New South Wales (Central Coast Local Health District) v Cook [2022] NSWPICMP 445

Panel agreed that the MA erred in utilising an analogous condition of nerve damage where there was no evidence of such an injury; re-examination required because of conflicting medical evidence; re-examination confirmed the respondent had complex regional pain syndrome; Held – Medical Assessment Certificate revoked.

Decision date: 8 November 2022| Panel Members: Deborah Moore, Dr Tommasino Mastroianni and Dr Brian Stephenson | Body system: Left Upper Extremity

Leeton Shire Council v Richards [2022] NSWPICMP 446

Psychological injury impairment assessment; appeals by both the worker and the employer; the worker alleged error by the Medical Assessor (MA) in the assessment under the category under the Permanent Impairment Rating Scale (PIRS) of concentration, persistence and pace; this rating was confirmed; the employer alleged error under the PIRS categories of social and recreational activities which was confirmed and employability which was revoked; the employer also alleged error in the allowance of 2% whole person impairment for the effects of treatment which was confirmed as open to the MA; Held – Medical Assessment Certificate revoked.

Decision date: 8 November 2022| Panel Members: Member Jane Peacock, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Bradley v HammondCare [2022] NSWPICMP 447

Appeal by worker from 9% whole person impairment; finding for psychiatric/psychological injury;  whether Medical Assessor (MA) erred in not allowing a treatment uplift; whether MA erred in finding class 2 value for the category of concentration, persistence and pace; Held – worker’s submission that MA required to comment extensively on treatment misguided; chapter 11.8 and chapter 1.32 of the the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 considered; error established that MA referred to a class 3 value for concentration persistence and pace in his reasons within the Permanent Impairment Rating Scale chart, but in context clearly a typographical error and no demonstrable error established; observations made about submissions that had no evidentiary support and lack of care in preparation of appellant’s submissions.

Decision date: 9 November 2022| Panel Members: Member John Wynyard, Dr Doug Andrews and Dr Brian Parsonage | Body system: Psychiatric/Psychological

State of New South Wales (Royal Prince Alfred Hospital) v Smythe [2022] NSWPICMP 448

Matter referred to Medical Assessor (MA) for assessment of left upper extremity; MA assessed left wrist, left elbow, nerve dysfunction and scarring and also assessed left shoulder; left shoulder not part of the medical dispute referred for assessment or a body part within the scope of the “medical dispute” crystallised between the parties; Skates v Hills Industries Ltd considered and applied; Held – MA erred in assessing left shoulder; Medical Assessment Certificate revoked.

Decision date: 9 November 2022| Panel Members: Member Carolyn Rimmer, Dr Mark Burns and Dr Drew Dixon | Body system: Left Upper Extremity and Scarring

Eurobodalla Shire Council v Spears [2022] NSWPICMP 449

Appeal by employer on the grounds that the Medical Assessor (MA) failed to make a deduction form the degree of whole person impairment (WPI) assessed; resulting from an injury to the respondent worker’s left knee pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the appellant submitted that in accordance with Vitaz v Westform (NSW) Pty Ltd the fact that the respondent’s left knee was asymptomatic pre-injury did not mean that no deduction should be made; the appellant relied upon the finding on a magnetic resonance imaging scan of the knee taken six weeks post-accident and the opinions of two independent medical examiners who had both examined the respondent; the appellant did not dispute the degree of WPI assessed by the MA, or that the respondent’s left knee was asymptomatic pre-injury; Held – there should be a deduction from that degree of WPI pursuant to section 323(2) of the 1998 Act for the pre-existing but asymptomatic osteoarthritis in the respondent’s left knee; Medical Assessment Certificate (MAC) revoked and new MAC issued.

Decision date: 9 November 2022| Panel Members: Member Brett Batchelor, Dr Margaret Gibson and Dr Drew Dixon | Body system: Left Lower Extremity

Motor Accidents Merit Review Decisions

Cha v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 64

Motor Accident Injuries Act 2017 (2017 Act);claimant for statutory benefits and merit review of dispute about whether claimant can recover benefits for telehealth treatment provided by Australian health practitioners to claimant in Korea; claimant argued treatment was provided in Australia and not caught by section 3.33 of the 2017 Act; insurer argued treatment was provided to claimant outside Australia and was caught by section 3.33 of the 2017 Act; Held– treatment is provided when it is received therefore treatment provided to claimant in Korea outside Australia; claimant is not entitled to statutory benefits for that treatment; costs allowed on an exceptional basis due to novel issue but allowed at usual regulated amount.

Decision date: 28 October 2022| Merit Reviewer: Belinda Cassidy

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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