Legal Bulletin No. 105

Issued 6 April 2023

Welcome to the hundred and fifth 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 Member Decisions

Lee v Fletcher International Exports Pty Ltd [2023] NSWPICPD 15

Workers compensation; Personal Injury Commission Act 2020; federal jurisdiction; workers compensation matter application remitted by District Court to usual decision maker; sections 26(5) and 26(6); Held – matter determined not to be federally impacted; orders made on remittal.

Decision date: 29 March 2023 | Before: President Judge Phillips

State of New South Wales (Fire & Rescue NSW) v Dixon [2023] NSWPICPD 14

Workers Compensation Act 1987; Clause 3 of Part 18C of Schedule 6; method of determination of amount by which compensation payable is to be reduced; State Super SAS Trustee Corporation v Cornes and SAS Trustee Corporation v Pearce discussed and applied; Held – Certificate of Determination dated 10 August 2022 is revoked; matter remitted for redetermination.

Decision date: 29 March 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Jakibanjar v Allianz Australia Insurance Limited [2023] NSWPIC 76

Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether for the purposes of section 3.1 the injury has resulted from a motor accident; claimant alleges injury following alighting from a vehicle and the vehicle collided with his lower limb; claimant initially reported to hospital that injury arose from a fall down stairs at work; version of events changed once claim made with insurer; audio files provided by claimant allegedly recording the accident and the lead up and aftermath; credibility issues of claimant; insurer did not address audio files and related transcripts; Held – the injury arose from a motor accident.

Decision date: 10 January 2023 | Member: Elizabeth Medland

QBE Insurance (Australia) Limited v Luxmoore [2023] NSWPIC 86

Motor Accident Injuries Act 2017; settlement approval; 47-year-old male; past and future economic loss only; $50,759.40; closed period past economic loss; two days and allowance of buffer for future economic loss; $50,000; Held – the proposed settlement is approved under section 6.23(2)(b).

Decision date: 17 February 2023 | Member: Shana Radnan

Khan v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 88

Motor Accident Injuries Act 2017; whether for the purposes of sections 3.11 and 3.28 the injured person was mostly at fault for the accident; claimant driver turning right into Casula Mall NSW;  oncoming insured driver travelling in opposite direction; collision occurred as claimant completing her turn; claimant alleged the insured was travelling at excessive speed; Held – claimant mostly at fault; no evidence to establish allegation of excessive speed; claimant failed to give way when insured driver had right of way.

Decision date: 6 March 2023 | Member: Elizabeth Medland

Insurance Australia Limited t/as NRMA Insurance v Young [2023] NSWPIC 89

Motor Accident Injuries Act 2017; approval of damages settlement under section 6.23; claimant self-represented; no non-economic loss entitlement; claim for past and future economic loss; initial settlement of $75,000 deemed not fair and reasonable based on information received from claimant at initial teleconference; parties given opportunity to negotiate further; Held – proposed settlement of $135,000 approved; claimant earning more post-accident; allowance for future economic loss of $125,000 took into account most likely future circumstances, but for the accident, the claimant would eventually transition to full time work, however, as a result of the accident-related injuries, no longer a reasonable possibility.

Decision date: 6 March 2023 | Member: Elizabeth Medland

Sopic v QBE Insurance (Australia) Limited [2023] NSWPIC 129

Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether for the injured person is entitled to ongoing payments of weekly statutory benefits beyond retirement age and maximum weekly payment period pursuant to sections 3.12 and 3.13; Held – claimant not entitled to ongoing payments of weekly statutory benefits beyond the one-year anniversary of retirement age, pursuant to section 3.13.

Decision date: 6 March 2023 | Member: Elizabeth Medland

QBE Insurance (Australia) Limited v Presz [2023] NSWPIC 120

Motor Accident Injuries Act 2017;settlement approval $160,000; 66-year-old male; periprosthetic fracture of the left femur; recovery from surgical fixation, flexion deformity of left knee, aggravation of pre-existing low back pain; non-economic loss only; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 24 March 2023 | Member: Shana Radnan

Li v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 127

Motor Accident Injuries Act 2017;claim for damages; the claimant was a pedestrian when the insured vehicle collided with him; insurer alleged contributory negligence of 30% on the basis the claimant had not kept a proper lookout; the claimant sustained closed head injury; fracture of the right clavicle; neck injury; multiple lacerations and abrasions; chronic major depressive disorder with anxious distress; pre-injury claimant self-employed as graphic designer; Held – claimant honest witness;the claimant should have been alert to the presence of vehicles turning into Mimosa Street, the claimant failed to keep a proper lookout; as per Podrebersek v Australian Iron and Steel, contributory negligence assessed at 15%; past economic loss agreed; non-economic loss; claimant 34 years of age with life expectancy of 49 years with limited expectation of improvement; psychological illness caused the claimant to live a restricted and diminished life; lack of motivation and energy, impaired concentration and focus; fatigued and tired most days; most likely future circumstances was continued self-employment as a graphic designer; future economic loss assessed on the basis of total incapacity for next five years and thereafter on basis could return to work 15 hours per week until age 67 years; likely earnings assessed having regard to accountants report; Held – total damages assessed in sum of $967,809.48 after reduction for contributory negligence; costs assessed in favour of the claimant.

Decision date: 29 March 2023 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

BER v Hyqcen Pty. Ltd. & Ors [2023] NSWPIC 118

Claim for payment of death benefit; liability originally disputed on basis that deceased worker was on a journey; applicant and second to fourth respondents allege the injury which caused the death of the worker was suffered on a work trip in the course of his employment; first respondent sought to amend dispute notice to the injury which caused the worker’s death was suffered in the course of the deceased’s employment; application opposed by applicant and second to fourth respondents; application to amend refused, whereupon first respondent indicated it could not resist the applicant’s claim; Held – apportionment of death benefit approved in accordance with in-principal agreement of applicant and second to fourth respondents; payment of interest and administration fees awarded in accordance with agreed terms forwarded by the parties after the hearing.

Decision date: 23 March 2023 | Member: Cameron Burge

Narse v ANZ Roofing Pty Ltd [2023] NSWPIC 119

Claim for lump sum payment for permanent impairment of the lumbar spine, cervical spine, right knee and right shoulder; worker sustains injury in a motor vehicle accident after leaving his place of employment; workers compensation benefits paid for about 15 months after accident; whether injury arose out of or in the course of the worker’s employment; reference to Comcare v PVWY; or in the alternative, whether the worker sustained injury on a journey with a real and substantial connection between the worker’s employment and the incident out of which the injury arose; reference to Bina v ISS Property Services P/L; Held – worker did not sustain an injury arising out of or in the course of his employment; no real and substantial connection between the worker’s employment and the incident out of which the injury arose; award for the respondent.

Decision date: 24 March 2023 | Member: John Isaksen

Favelle v NSW Rural Fire Service [2023] NSWPIC 122

Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 36 and 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6; consideration of Ware v NSW Rural Fire Service; Held – applicant’s normal duties were administrative in nature and not that of a firefighter; although the applicant did on occasion attend the scene of fires, no event at or during a fire was causative of the injury; the injury was not received by a ‘firefighter’; the 2012 amendments apply to the injury; award for compensation in favour of the applicant with credit for payments already made; no order as to costs.

Decision date: 27 March 2023 | Member: Rachel Homan

Markovska v State of New South Wales (NSW Health Pathology) [2023] NSWPIC 123

Accepted claim for lumbar spine, hypertension and scarring; consequential conditions to left shoulder (doing hydrotherapy) and gastrointestinal (medication) disputed; Held – award in favour of the applicant in respect of consequential left upper extremity condition and upper and lower intestinal conditions; matter remitted to President of the Personal Injury Commission for referral to Medical Assessors for whole person impairment assessments for these and other accepted injuries and conditions.

Decision date: 27 March 2023 | Member: Philip Young

Kaur v Westpac Group Limited [2023] NSWPIC 124

Workers Compensation Act 1987; claim for weekly benefits, medical expenses and permanent impairment compensation as a result of accepted psychological injury; respondent conceded that the applicant has no capacity for work; respondent relied on section 11A, specifically its actions with respect to performance appraisal and/or discipline; applicant had concurrent physical injuries; clinical records prior to disciplinary meeting contained no reference to the “bullying and harassment” relied on by the applicant; reference to “stress” was in the context of physical injuries and pain; applicant was responsible for a major breach of customer privacy, which was brought to the attention of the respondent by a third party; Consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi and Northern NSW Local Health Network v Heggie; Held – award for the respondent.

Decision date: 27 March 2023 | Senior Member: Kerry Haddock

Kumar v Electrical Home-Aids Pty Ltd [2023] NSWPIC 125

Workers Compensation Act 1987;claim for permanent impairment compensation, weekly benefits and medical expenses in respect of a psychological injury; respondent denies liability and relies on section 11A(1) with respect to transfer, performance appraisal and/ or discipline; Held – respondent has not placed into evidence the source material which it relied on to uphold disciplinary complaints against the applicant and to in dismiss his complaints against his manager; impossible to determine that conduct to have been reasonable; reasonableness must be determined objectively with regard to all of the evidence; Ritchie v Department of Community Services followed; insufficient evidence offered by the respondent to satisfy the onus of proving the substance of the matters; the respondent has not discharged the onus of proving those actions were reasonable, and the defence under section 11A therefore fails; permanent impairment claim remitted to the President of the Personal Injury Commission for referral to a Medical Assessor (MA) to determine the permanent impairment arising from the applicant’s injury; no exceptional circumstances having been established; the surveillance film served with the Reply will not be referred to the MA; Rule 109 of the Personal Injury Commission Rules 2021applied; Erskine v Cozwine Pty Limited followed; claims for weekly compensation and medical expenses are listed for further telephone conference after the issuing of a Medical Assessment Certificate per Jaffarie v Quality Castings Pty Ltd.

Decision date: 28 March 2023 | Member: Cameron Burge

Younan v Feris Group Pty Ltd [2023] NSWPIC 126

Claim for future surgery by way of total knee replacement; medical necessity of surgery not in issue; the applicant suffered an accepted lumbar spine injury in 2016; alleges that injury caused weakness, numbness and instability in his right leg which led to him falling from an elevated garden bed in April 2020, causing a consequential condition by way of right leg fracture which gives rise to the accepted need for a total knee replacement; respondent disputed the presence of the alleged consequential condition, alleging the fall causing the right leg fracture was not as a result of the accepted lumbar injury; Held – on a common-sense evaluation of the causal chain, the right leg fracture occurred as a result of the lumbar spine injury; Kooragang Cement Pty Ltd v Bates applied; applicant need only demonstrate the accepted injury was a material cause of the need for the proposed surgery, even if other factors were also present which may have contributed to that need; Taxis Combined Services (Victoria) Pty Ltd v Schokman followed; caution must be had in relying on histories recorded by treating medical practitioners; Mason v Demasi & Anor followed; the complaints can in no way be said to be recent inventions; on a common-sense evaluation of the causal chain, the preponderance of the evidence establishes the accepted injury was a material cause of the requirement for the surgery; no dispute the surgery is medically necessary; respondent is ordered to pay the costs of and incidental to the proposed right total knee replacement.

Decision date: 29 March 2023 | Member: Cameron Burge

Workers Compensation Presidential Delegate Decision

Baker v Aurizon Operations Ltd [2023] NSWPIC 128

Work capacity dispute; suitable employment; consideration of medical information going to incapacity; age, skills, experience and qualifications; provision of rehabilitation services; applicant had been a union delegate but did not have skills as an organiser; Held –no suitable employment options identified; award of weekly payments for the applicant.

Decision date: 29 March 2023 | Delegate: Parnel McAdam

Motor Accidents Medical Review Panel Decisions

Hanna v QBE Insurance (Australia) Limited [2023] NSWPICMP 101

Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about minor injuries; assessment by Medical Assessor Truskett that all injuries were minor injuries; claimant 71 years old; injured in T-bone type collision on 24 December 2019; injuries to be assessed were cervical and lumbar spine, chest, right and left shoulder and right hip; Held – Panel satisfied claimant injured his neck and back in the accident, but no radiculopathy present or at any time since the accident; claimant denied any previous condition in the shoulders and denied any pre-accident radiology to his shoulders; General Practitioner notes reveal complaints of shoulder pains in 2017 and 2019 before the accident resulting in investigations and radiology; 2021 radiology revealed small tears in the soft tissues of the right shoulder but Panel not satisfied these were caused by the accident; Panel satisfied there was an injury to the right hip but no evidence of anything other than soft tissue injury; radiology post-accident revealed “old” sternal fracture; claimant did not recall previous chest fracture but accepted he had memory problems; radiology report indicated fractured sternum was pre-existing and no signs of acute injury visible; Certificate of Assessor Truskett confirmed; all injuries minor injuries.

Decision date: 21 March 2023 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney and Dr Neil Berry| Injury module: Spine, Upper and Lower Limb

BCX v AAI Limited t/as AAMI [2023] NSWPICMP 102

Motor Accidents Compensation Act 1999; the claimant suffered injury on 10 March 2017 when a kangaroo jumped in front of and collided with her vehicle; the dispute related to the assessment of permanent impairment of the psychological condition; claimant re-examined; pre-existing psychological condition did not give rise to permanent impairment prior to motor accident; subsequent life difficulties did not cause further psychiatric injury; claimant’s psychological condition was in response to the direct effects of the motor accident and the  resultant physical injuries and pain; Held – claimant assessed at 7% permanent impairment; original assessment revoked.

Decision date: 22 March 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong and Dr Atsumi Fukui| Injury module: Mental and Behavioural

QBE Insurance (Australia) Limited v Ruiz-Diaz [2023] NSWPICMP 103

Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; Medical Assessor Enrico Parmegiani diagnosed a panic disorder which is not a minor injury; insurer submitted claimant had sought no treatment for any psychological injury, had not reported panic attacks to any treating practitioner since the accident and had sustained no psychiatric injury; report of claimant’s medico-legal psychiatrist (1) not available to original assessor, did not have history of panic attacks and diagnosed Somatic Symptoms Disorder (SSD); report of claimant’s medico-legal psychiatrist (2) accepted history of panic attacks and diagnosed panic disorder; insurer’s medico-legal psychiatrist diagnosed a Somatoform Symptom Disorder from Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM 4); Panel relied on summary of evidence from Ruiz-Diaz v QBE; Held – claimant satisfied criteria for SSD which is a psychiatric illness recognised by DSM 5 and not a minor injury; based on claimant’s history she would also satisfy criteria for a panic disorder but Panel of the view without corroborating evidence of panic attacks that diagnosis should not be made.

Decision date: 23 March 2023 | Panel Members: Member Belinda Cassidy, Dr Alexey Sidorov and Dr Michael Hong| Injury module: Mental and Behavioural

Johnson v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 104

Motor Accidents Compensation Act 1999; medical review under section 63 of whole person impairment (WPI) assessment; claimant involved in rear end collision injuring neck, left shoulder and right arm; Medical Assessor Gorman assessed WPI at 5%; claimant re-examined; Held – claimant’s neck injury satisfied criteria for diagnosis related estimate (DRE) II due to presence of dysmetria at 5%; claimant did not injure his left axial or ulnar nerve; claimant did not injure right arm as no evidence in contemporaneous records and claimant’s history was right arm symptoms came on a year after the accident; claimant did sustain soft tissue injury to his left shoulder but this is not cause of restriction of left shoulder motion; claimant may have radicular symptoms but at these developed a year after the accident and cannot be related to the accident; Assessor Gorman’s Medical Assessment Certificate confirmed; claimant’s WPI not greater than 10%.

Decision date: 23 March 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron and Dr Leslie Barnsley| Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Santangelo v State of New South Wales (NSW Police Force) [2023] NSWPICMP 105

Psychological injury; use of other medical reports; State of New South Wales v Kaur considered; assessment in Psychiatric Impairment Rating Scale (PIRS) categories; Jenkins v Ambulance Service of NSW, Ferguson v State of New South Wales and Ballas v Department of Education discussed; Held – Medical Assessment Certificate confirmed.

Decision date: 23 March 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Alrbieadi v Tucorp Formwork Pty Limited [2023] NSWPICMP 107

Injury to eye; meaning of maximum medical improvement (MMI); SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 March 2021 paragraphs 1.6, 1.15, 1.16, 1.34 and 1.35; possibility of future deterioration does not preclude finding of MMI; Held – Medical Assessment Certificate confirmed.

Decision date: 27 March 2023 | Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Michael Steiner | Body system: Visual

BFK v Secretary, Department of Education [2023] NSWPICMP 108

Psychological Injury; appellant alleged error in the assessment under three categories under the Psychiatric Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, social functioning and concentration, persistence and pace; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held –Medical Assessment Certificate confirmed.

Decision date: 27 March 2023 | Panel Members: Member Jane Peacock, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Freckelton v Secretary (Department of Communities and Justice) [2023] NSWPICMP 110

Whether Medical Assessor (MA) provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the compromise of the appellant’s activities of daily living (ADLs); whether the MA provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the thoracic spine; whether the MA erred, with respect to his assessment of the appellant’s permanent impairment relating to her lumbar spine, by concluding the appellant did not have radiculopathy; whether MA erred by not referring to the ultrasound of the appellant’s right shoulder when assessing the appellant’s permanent impairment of her right upper extremity; Held – Appeal Panel considered MA was correct to conclude the appellant did not have radiculopathy; Appeal Panel considered the ultrasound was irrelevant to the assessment of the appellant’s permanent  impairment; Appeal Panel determined the MA did not adequately explain his reasoning with respect to his assessment of the appellant’s permanent impairment relating to her ADLs and thoracic spine; Medical Assessment Certificate revoked.

Decision date: 28 March 2023 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson and Dr Tommasino Mastroianni | Body system: Lumbar and Thoracic Spine, Right Upper and Lower Extremity

Sleiman v AGR Tyres Pty Ltd [2023] NSWPICMP 111

Reconsideration of Medical Assessment Certificate (MAC) issued as a result of previous medical appeal; sought for the purpose of a threshold dispute; consideration by the Court of Appeal; Sleiman v Gadalla Pty Ltd discussed; reconsideration appropriate based on deterioration; Martinovic v Workers Compensation Commission of New South Wales and Riverina Wines Pty Ltd v Workers Compensation Commission considered; Held – MAC revoked.

Decision date: 29 March 2023 | Panel Members: Member Catherine McDonald, Dr Drew Dixon and Dr John Garvey | Body system: Lumbar Spine, Right and Left Upper Extremity

Motor Accidents Merit Review Decisions

Ajbawi v Allianz Australia Insurance Limited [2023] NSWPICMR 17

Motor Accident Injuries Act 2017; merit review; pre accident weekly earnings (PAWE); sub-clause 4(1) and (2) of Schedule 1; claimant worked as a glass fitter; claimant also was a Uber Eats driver; dispute about whether claimant was an “earner”; calculation of PAWE; dispute over calculation of income because claimant’s payslips, taxation records and bank deposit records were inconsistent; disagreement over the interpretation of the records; Held- claimant met the definition of earner; claimant’s PAWE determined on the basis of his tax returns; claimant’s PAWE should be calculated for 26 week period immediately before the accident as this was most reliable in this case; claimant’s payslips, taxation records and bank deposit records were inconsistent and unreliable; remitted to the Insurer for reconsiderationand recalculation of the claimant’sweeklyentitlements; legal costs not available because a dispute under Division 3.3 about weekly payments is not a regulated merit review matter under section 8.10 and Schedule 1 of the Motor Accident Injuries Regulation 2017; see AAR v Allianz Australia Ltd and Khadka v CIC-Allianz.

Decision date: 22 March 2023 | Merit Reviewer: Ray Plibersek

Gorrie v Allianz Australia Insurance Limited [2023] NSWPICMR 18

Motor Accident Injuries Act 2017;merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3; where the claimant received gross earnings as an employee of a registered proprietary company under the Corporations Act 2001; where the claimant was also the sole director, sole shareholder and sole employee of the  company; whether the company’s net profit or gross earnings should be included in the claimant’s gross earnings for the purpose of calculating the claimant’s pre-accident weekly earnings under Schedule 1 clause 4(1); Held – the reviewable decision is affirmed.

Decision date: 24 March 2023 | Merit Reviewer: Maurice Castagnet

This publication is for information only. The publication is not legal advice.  The information provided is not a substitute for reading the decisions. The Commission does not accept liability for the information in this publication or for way the information is used.

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