Legal Bulletin No. 109

Issued 5 May 2023

Welcome to the hundred and ninth 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.

Supreme Court Decision

Western NSW Local Health District v Roberts [2023] NSWSC 452

Administrative law; review of medical assessment by Appeal Panel; judicial review of Appeal Panel decision; consideration of nature of appeals from Medical Assessor to Appeal Panel; fresh evidence before Appeal Panel; whether worker had reached maximum medical improvement; Held – the amended summons dated 13 October 2022 is dismissed, with costs.

Decision date: 3 May 2023 | Before: Griffiths AJ

Presidential Member Decisions

Dunn v Westruss Manufacturing Pty Ltd [2023] NSWPICPD 20

Workplace Injury Management and Workers Compensation Act 1998; interlocutory appeal; failure to determine claim for whole person impairment; section 281; leave to appeal denied; section 352(3); Held – leave to appeal the decision of Member Young dated 13 July 2022 is refused; the matter is remitted to Member Young to make such directions as to the further conduct of this matter as is necessary for the just, quick and cost-effective settlement of the real issues in dispute.

Decision date: 20 April 2023 | Before: President Judge Phillips

Philpott v Australian Plays Transform [2023] NSWPICPD 21

Workers compensation; weekly compensation; work capacity; whether an assessment of a teacher’s ability to earn in suitable employment can include the value of alleged unpaid work performed by a teacher outside the school classroom; whether the law of restitution is relevant to an assessment of weekly compensation; Held – the Certificate of Determination dated 4 March 2022 is confirmed.

Decision date: 21 April 2023 | Before: Acting Deputy President Michael Perry

City of Ryde v Clarke [2023] NSWPICPD 22

Workplace Injury Management and Workers Compensation Act 1998; the duty to give reasons, application of Beale v Government Insurance Office of New South Wales and Pollard v RRR Corporation Pty Ltd; Held – leave to appeal against an interlocutory decision is granted pursuant to section 352(3A); the Certificate of Determination dated 1 June 2022 is revoked; the matter is remitted to a different non-Presidential member for re-determination.

Decision date: 26 April 2023 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Betteridge v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 171

Motor Accident Injuries Act 2017; section 7.36(1); claims assessment; damages claim; liability wholly admitted; serious frank injuries; motorcycle; combination of psychological and functional disability; non-economic loss; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity; loss of opportunity to grow established business; theoretical earning capacity where low reasonable prospect of obtaining work to utilise it; credit; request to make adverse inference because claimant did not provide evidence regarding recent unrelated psychological injuries to medico-legal psychiatrist; asked to make adverse findings on credit due to initial instructions to forensic accountant were shown to be wrong; Stevens v DP World Melbourne Ltd considered on credit and alternative reasons for claimant’s inconsistent statements; forensic accountant reports proposed alternative methods to calculate loss; replacement labour cost; Husher v Husher considered; add back business expenses to show claimant’s earning capacity; experts questioned together; replacement labour cost and buffer for loss of opportunity applied; hours at work disputed; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witness; interest; legal costs; Personal Injury Commission Rules 2021; Malec v JC Hutton and Wallace v Kam followed; Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis considered; assessment of damages for personal injury and death; Held – claimant a credible witness; suffered economic loss; damages assessed at $1,956,190.

Decision date: 18 April 2023 | Member: Terence O'Riain

QBE Insurance (Australia) Limited v Khullar [2023] NSWPIC 172

Motor Accident Injuries Act 2017; settlement approval; 41-year-old driver involved in a head-on collision; sustained multiple fractures of the left hand and bruising to chest and abdomen; eventually returned to full unrestricted duties; employed as a chef in a hotel restaurant; claimant is left-handed; some residual pain after continuous use of left hand; entitled to damages for past and future economic loss only; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 18 April 2023 | Member: David Ford

Ibrahim v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 173

Whether the claimant had complied with section 7.32(3) of the Motor Accident Injuries Act 2017 (2017 Act); if not, whether the proceedings should be dismissed under section 54 of the Personal Injury Commission Act 2020; where it was evident for some time that there was a dispute about the claimant’s degree of permanent impairment and her entitlement to non-economic loss; claimant referred permanent impairment dispute to the Personal Injury Commission (Commission) after she had referred her claim for damages to the Commission for assessment; Held – in order to fulfill her obligations under section 7.32(3) of the 2017 Act, the claimant should have referred the medical dispute to the Commission with due dispatch; the stood over list is not intended to be a parking lot for claims with respect to which mandatory provisions have not been complied with or basic preparatory steps undertaken; the claimant did not use her best endeavours to settle her claim before referring it for assessment; proceedings dismissed.

Decision date: 20 April 2023 | Senior Member: Brett Williams

QBE Insurance (Australia) Limited v Harper [2023] NSWPIC 182

Motor Accident Injuries Act 2017; settlement approval; 66-year-old male, pedestrian injured whilst struck by insured motor vehicle when attempting to cross a zebra crossing; laceration of left hand and injuries to the left knee, foot and lumbar spine; employed as a warehouse manage; entitled to damages for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 24 April 2023 | Member: David Ford

Ibrahim v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 184

Motor Accident Injuries Act 2017;section 6.14; application for assessment of damages made before claim for damages; dismissal of application to assess damages; dismissed under section 54 of the Personal Injury Commission Act 2020 andrule 77 of the Personal Injury Commission Rules; Held – application to assess damages is misconceived and dismissed.

Decision date: 27 April 2023 | Member: Terence O’Riain

Workers Compensation non-Presidential Member Decisions

Searle v Qantas Airways Limited [2023] NSWPIC 175

Workers Compensation Act 1987; section 60 claim for  hearing aids; no dispute regarding noisy employment and last noisy employer; dispute in respect to whether  hearing aids are reasonably necessary due to accepted injury; Rose v Health Commission (NSW), Diab v NRMA Ltd, Matthews v State Rail Authority of New South Wales, Murphy v Allity Management Services Pty Ltd and Kooragang Cement Pty Ltd v Bates discussed and applied; Held – work related injury materially contributed to the need for reasonably necessary hearing aids; award for the worker for medical expenses.

Decision date: 21 April 2023 | Member: John Turner

Barrett v D.M O'Brien & M.J O'Brien & T.M O'Brien t/as P J O'Brien & Co [2023] NSWPIC 176

Permanent impairment and weekly compensation claim; injuries to right shoulder, cervical spine, thoracic spine and lumbar spine accepted; applicant also claims for disputed injury to cortico-spinal tract; respondent argues no injury to cortico-spinal tract; contest between medicolegal experts on presence or otherwise of contested injury; Held – the applicant suffered injury to the cortico-spinal tract; the applicant’s Independent Medical Examiner (IME) provided detailed reasoning as to why the symptoms exhibited by the applicant on examination by a range of medical practitioners, including the respondent’s own IME, were consistent with the contested injury; on balance, the views of the applicant’s IME are preferred, and the accepted symptoms complained of by the applicant to both medicolegal experts and other practitioners form a reasonable basis for establishing on the balance of probabilities the presence of a cortico-spinal cord injury; permanent impairment claim remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the degree of impairment arising from all of the claimed injuries; claim for weekly benefits adjourned for further preliminary conference upon the issuing of any Medical Assessment Certificate.

Decision date: 21 April 2023 | Member: Cameron Burge

Khatawi v Australian Glazing Solutions Pty Ltd [2023] NSWPIC 177

Workers Compensation Act 1987; left knee injury; injury not reported and disputed by employer; lack of note of injury by general practitioner; Nominal Defendant v Clancy applied; need for logical and probative evidence; Onesteel Reinforcing Pty Ltd v Sutton applied; credit issues with respect to respondent’s evidence; Malco Engineering Pty Ltd v Ferriera and Brines v Westgate Logistics Pty Ltd applied;no medical evidence obtained by insurer; Held – award for the applicant for weekly compensation and section 60 expenses.

Decision date: 21 April 2023 | Member: Catherine McDonald

Newton v Goulburn Mulwaree Council [2023] NSWPIC 178

Claim for weekly compensation; worker suffered an admitted psychological injury while working as the Business Manager Finance and Customer Service for the respondent; the only issue for determination was whether the applicant suffered from an ongoing incapacity from the psychological injury that would give her an entitlement to weekly compensation and if so the extent of such an entitlement; consideration of the law as expressed in the decisions in Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd and Ludowici v Cutri; applied Wollongong Nursing Home Pty Ltd v Dewar in finding position with respondent was not a “real job”; Held – work capacity decision set aside and award of weekly payments entered.

Decision date: 21 April 2023 | Member: Michael Moore

McLean v State of New South Wales (Mid North Coast Local Health District) [2023] NSWPIC 179

Workers Compensation Act 1987; claim for weekly benefits compensation; applicant had accepted primary psychological injury pursuant to sections 4 and 9A; whether the accepted psychological injury was wholly or predominantly caused by the action of the respondent taken or proposed to be taken with respect to discipline or dismissal; whether the respondent established a defence pursuant to section 11A; whether the respondent established a defence pursuant to section 14(2); whether the applicant had no capacity to work between 8 April 2021 and 2 August 2021; Held – applicant sustained a compensable primary psychological injury pursuant to sections 4 and 9A; the psychological injury was not wholly or predominantly caused by the action of the respondent taken or proposed to be taken with respect to discipline or dismissal; the respondent did not establish a defence pursuant to section 11A; the respondent did not establish a defence pursuant to section 14(2); the applicant had partial incapacity for work between 8 April 2021 and 2 August 2021 as a result of the psychological injury; direction that the matter is listed for a conference in relation to the calculation of the applicant’s weekly benefits entitlement pursuant to sections 33, 36 and 37.

Decision date: 24 April 2023 | Member: Karen Garner

Kitabayashi v Qantas Airways Limited [2023] NSWPIC 180

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; whether applicant sustained injury, being bilateral hearing loss by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss; whether bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury; Held – the applicant sustained injury, being bilateral hearing loss by way of a gradual process in the course of her employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss; the respondent was the last employer to which the nature of the applicant’s hearing loss was due pursuant to section 17(c)(ii); bilateral hearing aids are reasonably necessary to address the applicant’s bilateral hearing loss as a result of a work injury; respondent to pay the costs of and incidental to bilateral hearing aids pursuant to section 60.

Decision date: 24 April 2023 | Member: Karen Garner

Moslemi v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 181

Claim for permanent impairment compensation in respect of injury to the cervical spine, right upper extremity and left upper extremity; accepted injury to right shoulder in employ of first respondent; disputed claim for injury to cervical spine and consequential condition of left shoulder; claim for disease injury to cervical spine, right upper extremity and left upper extremity; second and third respondents disputed that notice of injury and claim for compensation had been made in time; injury; substantial contributing factor; main contributing factor; last relevant employment; consideration of Taylor v J & D Stephens Pty Ltd, AV v AW; Westpac Banking Corporation v Hungerford, SAS Trustee Corporation v O’Keefe, Gow v Patrick Stevedores No 2 Pty Limited and Shoalhaven City Council v Schutz; Held – the matter is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment.

Decision date: 24 April 2023 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

AAI Limited t/as AAMI v Myers [2023] NSWPICMP 149

Motor Accidents Compensation Act 1999; medical review under section 63 of whole person impairment (WPI) assessment; rear-end collision and further assessment by Medical Assessor; WPI of 11%; injuries to spine, both shoulders and both hips alleged; issue of causation in relation to all; claimant admitted pre-accident symptoms in back an hips; Held– injuries to cervical, thoracic and lumbar spine caused by the accident attracting 0% WPI; no injury to shoulders in the accident, but referred pain to left shoulder caused restriction of movement; inconsistent on measurement and 2% WPI; left and right hip not injured in accident but referred pain from lumbar spine injury might have caused some restriction early on but any restriction now not due to accident.

Decision date: 18 April 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron and Dr Chris Oates | Injury module: Spine, Upper and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Woelms [2023] NSWPICMP 150

Motor Accidents Compensation Act 1999; insurer’s application for review in relation to assessment of the bladder; urinary incontinence; Held – the Appeal Panel revoked the certificate of the Medical Assessor and the Combined Certificate and issued a fresh Certificate finding the injuries caused by the motor accident give rise to a whole person impairment which is, in total, not greater than 10%.

Decision date: 18 April 2023 | Panel Members: Principal Member Josephine Bamber, Dr John Carter and Dr Michael Rochford | Injury module: Urinary and Reproductive

Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 151

Review of decision of Medical Assessor (MA) dated 2 July 2022; MA determined a whole person impairment (WPI) of 2% with respect to scarring of the claimant’s right knee, right forearm, right foot, right elbow, right ankle and right shoulder; the claimant was injured in an accident on 3 November 2018 when riding his motorcycle which collided with a car; the claimant had surgery on admission to hospital and thereafter fractional laser therapy treatment for approximately 12 months post-accident; scarring remains sensitive and required desensitisation therapy; the claimant submitted that the MA failed to apply TEMSKI descriptors but following examination by the Appeal Panel the TEMSKI descriptors were not deemed appropriate and  assessment was applied adopting the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th Edition, and limitation of performance of several activities of daily living (ADL); Held – Appeal Panel assessed the claimant at 10% WPI.

Decision date: 18 April 2023 | Panel Members: Member Alexander Bolton, Dr Michael McGlynn and Dr Chris Oates | Injury module: Skin

Bennett v QBE Insurance (Australia) Limited [2023] NSWPICMP 152

The claimant suffered injury in a motorbike accident; pre-existing back injury; Medical Assessor found the following injuries were minor injuries: cervical spine, whiplash associated disorder; left knee, soft tissue injury; left shoulder, subacromial bursitis, lumbar spine and right leg, soft tissue injury; Held –Medical Assessment Certificate revoked;accident caused soft tissue injury to cervical spine, soft tissue injury to left shoulder; soft tissue injury to left knee; accident contributed to worsening of pre-existing back condition; two or more signs of radiculopathy identified on examination; lumbar spine accident caused aggravation of degenerative changes, with development of right-sided radiculopathy which is not a threshold injury.

Decision date: 19 April 2023 | Panel Members: Member Susan McTegg, Dr Neil Berry and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decisions

La Trobe Financial Services Pty Ltd v Karboulahanos [2023] NSWPICMP 145

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under psychiatric impairment rating scale (PIRS); State of NSW v Kaur, Jenkins v Ambulance Service of NSW, Ferguson v State of NSW and Parker v Select Civil discussed; section 323 deduction; call for documents from former General Practitioner under section 324; re-examination unlikely to be of assistance; Held – Medical Assessment Certificate revoked.

Decision date: 17 April 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Akdeniz v Greenheart Solar Pty Ltd [2023] NSWPICMP 153

The appellant submitted that the Medical Assessor (MA) erred in his assessment of both the cervical spine and the lumbar spine, in particular that he failed to properly consider the evidence regarding radiculopathy; Appeal Panel found no evidence of radiculopathy consistent with the MA’s assessment; Held – Medical Assessment Certificate confirmed.

Decision date: 24 April 2023 | Panel Members: Deborah Moore, Dr Alan Home and Dr Neil Berry | Body system: Cervical and Lumbar Spine

Secretary, Department of Education v Read [2023] NSWPICMP 154

Appeal of assessment of injury to right upper extremity as a result of assault; cervical and lumbar spine assessments not controversial; employer argued that the Medical Assessor should not have combined an assessment of the range of motion of the worker’s wrist with the assessment arising from a peripheral nerve injury; worker in fact suffered a wrist injury and a separate peripheral nerve injury; impairment did not arise solely as a result of a peripheral nerve injury so that the SIRA NSWWorkers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed, reissued 1 March 2021 paragraph 2.9 did not preclude assessment of the range of motion; Held – Medical Assessment Certificate confirmed.

Decision date: 24 April 2023 | Panel Members: Catherine McDonald, Dr Mark Burns and Dr Drew Dixon | Body system: Cervical and Lumbar Spine, Right Upper Extremity and Scarring

Mullick v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM) [2023] NSWPICMP 155

Impairment resulting from primary psychological injury; worker appealed two of the psychiatric impairment rating scale (PIRS) categories; travel and concentration persistence and pace; Appeal Panel satisfied that there was no error or application of incorrect criteria in the two PIRS categories; Held – Medical Assessment Certificate confirmed.

Decision date: 26 April 2023 | Panel Members: Carolyn Rimmer, Dr John Baker and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Stuckey v Secretary, Department of Education [2023] NSWPICMP 156

Workplace Injury Management and Workers Compensation Act 1998; appeal from Medical Assessor (MA) finding that assessment of right knee replacement of 20% should be reduced by ¾ pursuant to section 323, and the assessment of the left knee of 30% should be so reduced by 100%; whether finding that left knee condition entirely due to constitutional features within MA’s remit; whether MA considered the whole of the evidence; Held – Medical Assessment Certificate revoked; MA made mistake of fact in identifying referred injury and considered an earlier event; Skates v Hills Industries considered and applied; MA failed to consider other relevant evidence; Elcheikh v Diamond Formwork considered and applied.

Decision date: 26 April 2023 | Panel Members: John Wynyard, Dr David Crocker and Dr Greg McGroder | Body system: Right and Left Lower Extremity and Scarring

Motor Accidents Merit Review Decision

Moltmann v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 25

Motor Accident Injuries Act 2017 (2017 Act); merit review of dispute about statutory benefits under Division 3.4 of the 2017 Act; reasonable cost of medical treatment under sections 3.24, 3.30 and 8.9 of the 2017 Act; clause 34 of the Motor Accident Injuries Regulation 2017 and the Australian Medical Association (AMA) list; Held – the reviewable decision is set aside.

Decision date: 24 April 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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