Legal Bulletin No. 111

Issued 19 May 2023

Welcome to the hundred and eleventh 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

Toll Holdings Ltd v Diomidhous [2023] NSWPICPD 26

Workers compensation; psychological injury; section 11A of the Workers Compensation Act 1987; approach to expert evidence; Hancock v East Coast Timber Products Pty Limited and Paric v John Holland Constructions Pty Ltd considered and applied; parties are bound by the way a case is conducted below; Brambles Industries Ltd v Bell applied; Held –the Member’s Certificate of Determination dated 27 July 2022 is confirmed.

Decision date: 9 May 2023 | Before: President Judge Phillips

Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27

Workers compensation; section 4(b)(ii) of the Workers Compensation Act 1987; whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s sinusitis condition caused by the requirement to wear a surgical mask at work; AV v AW discussed; alleged error by failing to take into account relevant matters and taking into account irrelevant considerations; Raulston v Toll Pty Ltd applied; Held – the Member’s Certificate of Determination dated 13 May 2022 is confirmed.

Decision date: 10 May 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Elbekkahi v QBE Insurance (Australia) Limited [2023] NSWPIC 202

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3)-(4); motor vehicle being driven by the insured driver travelling in the opposite direction, lost control, veered onto the incorrect side of the roadway and collided head on with the claimant’s motor vehicle; insured admitted liability and no allegation of contributory negligence; claimant suffered fractured right arm, muscular ligamentous strain of lumbar and cervical spine; claimant was not employed at the time of the accident; had not engaged in any form of employment since 2009 when she became a full-time carer for her mother; claimant submitted that she intended to enrol in a university course to become a primary school teacher shortly prior to the accident but post-accident did not enrol in the university course nor seek full time or part-time employment but remained a full-time carer for her mother; claim for past and future economic loss plus superannuation; Held – claimant is not entitled to any damages for either past or future economic loss; damage is assessed at $NIL.

Decision date: 2 May 2023 | Member: David Ford

Allianz Australia Insurance Limited v Villiers [2023] NSWPIC 204

Motor Accident Injuries Act 2017; settlement approval; 71-year-old rider of a motorcycle involved in a collision at an intersection with insured motor vehicle; sustained fracture of the left tibia underwent surgery involving insertion of a locked nail; good recovery; claimant is retired; entitled to damages for non-economic loss only; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under Section 6.23(2)(b).

Decision date: 5 May 2023 | Member: David Ford

AAI Limited t/as GIO v Mitchell [2023] NSWPIC 205

Motor Accident Injuries Act 2017; settlement approval; $27,000; 57 year-old female; right shoulder high grade supraspinatus tear, surgical decompression and rotator cuff repair; successful; whole person impairment 6%; past and future economic losses only; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 8 May 2023 | Member: Shana Radnan

Tomkins v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 209

Motor Accident Injuries Act 2017; whether for the purposes of section 6.13(2) the insurer is entitled to refuse payment of statutory benefits to the claimant in respect of any period before his claim was made; where the parties agree that the claim was not made within 28 days after the date of the accident; because accident occurred before 1 April 2023, clause 8A of the Motor Accident Injuries Regulation 2017 does not apply to the claim; Wright v AAI Limited t/as GIO and Lu v Allianz Australia Insurance Limited followed; Held – section 6.13(2) is in clear and unambiguous terms; if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made; there is no discretion available to the Personal Injury Commission to allow payment of statutory benefits if section 6.13(2) has not been complied with; the insurer is entitled to refuse payment of statutory benefits to the claimant in accordance with section 6.13(2).

Decision date: 9 May 2023 | Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Greco v Lencrow Pty Limited & Ors [2023] NSWPIC 193

Workers Compensation Act 1987; application to resolve a dispute; a claim is made for past treatment expenses and for the bilateral shoulder surgeries; issues of whether the proposed bilateral shoulder surgeries are reasonably necessary treatment as a result of injury pursuant to section 60; whether the operation of section 59A precludes an award of compensation being made for the proposed treatment; Held – section 59A precludes compensation being payable to the applicant for the proposed bilateral shoulder surgery in relation to injuries sustained in the employ of the first and second respondents.

Decision date: 1 May 2023 | Principal Member: Josephine Bamber

Motamednejad v GVK NSW Reo Pty Ltd [2023] NSWPIC 203

Workers Compensation Act 1987; claim for treatment expenses pursuant to section 60; respondent disputes treatment reasonably necessary for posterior interbody fusion at L4/5 and L5/S1 and respondent disputes injury to lumbar spine; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the left knee injury; Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited, Allianz Australia Workers Compensation (NSW) Pty Limited v Qummou, Australian Conveyor Engineering v Mecha Engineering Pty Limited, Briginshaw v Briginshaw, Kooragang Cement Pty Ltd v Bates, Zickar v MGH Plastic Industries Pty Ltd, North Coast Area Health Service v Felstead and Nguyen v Cosmopolitan Homes (NSW) Pty Limited considered; Held – the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a lumbar spine injury which arose out of or in the course of the applicant’s employment on 27 September 2017; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60.

Decision date: 4 May 2023 | Member: Anne Gracie

Willow v Secretary, Department of Education [2023] NSWPIC 206

Workers Compensation Act 1987; psychological injury; issue as to whether respondent established defence under section 11A; St George Leagues Club v Wretowska, Attorney General v K and Hamad v Q Catering Limited applied; Held – the respondent has not established a defence under section 11A;the respondent is to pay the applicant weekly benefits compensation; the respondent is to pay the applicant’s treatment expenses.

Decision date: 8 May 2023 | Principal Member: Josephine Bamber

Dare v State of New South Wales (NSW Police Force) [2023] NSWPIC 207

Workers Compensation Act 1987; psychological injury; claim for weekly benefits and lump sum compensation; respondent did not dispute that the applicant had sustained psychological injury; respondent claimed to have a defence pursuant to section 11A relying on actions with respect to promotion, performance appraisal and/or provision of employment benefits; parties agreed that if liability dispute determined in favour of applicant, claim for lump sum benefits to be referred to a Medical Assessor (MA) with deemed date of injury being date of claim for permanent impairment and claim for weekly benefits to be determined after issue of Medical Assessment Certificate; consideration of Department of Education and Training v Sinclair, Kooragang Cement Pty Ltd v Bates, Northern NSW Local Health Network v Heggie, Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd and Ritchie v Department of Community Services; Held – psychological injury wholly or predominantly caused by respondent’s action with respect to promotion and/or provision of employment benefits; respondent’s action not reasonable; matter remitted to President of the Personal Injury Commission for referral to MA for assessment of permanent impairment; matter to be listed for further preliminary conference after issue of Medical Assessment Certificate.

Decision date: 8 May 2023 | Senior Member: Kerry Haddock

BDU by next friend BKO & Ors v State of New South Wales (NSW Police Force) & Ors [2023] NSWPIC 208

Apportionment of lump sum death benefit for three children of the deceased worker; agreement reached between the three dependants; claim for interest on payment of the lump sum death benefit; Held – orders made in accordance with the agreement as to apportionment, along with the payment of interest at various dates based upon when the claim was duly made by each dependant.

Decision date: 8 May 2023 | Member: John Isaksen

Dobson v Total Momentum Pty Ltd [2023] NSWPIC 210

Claim in respect of lump sum death benefit; Held – there were no other dependent persons.

Decision date: 10 May 2023 | Senior Member: Elizabeth Beilby

Motor Accidents Medical Review Panel Decisions

Yavuz v QBE Insurance (Australia) Limited [2023] NSWPICMP 112

Motor Accident Injuries Act 2017;section 1.6; minor injury and treatment; the claimant complained of cervical, thoracic and lumbar spine pain and right shoulder pain following the motor accident; contemporaneous complaint about right shoulder; scans showed large full thickness tear of supraspinatus tendon; shoulder injury was classified as non-minor injury; treatment was already provided; examining scans showed that shoulder injury was acute; Held – the Panel was satisfied that the accident caused full thickness tear of supraspinatus tendon; other injuries were soft tissue; the Panel were satisfied that the treatment was reasonable and necessary and improving her condition; minor injury certificate revoked; treatment certificate affirmed.

Decision date: 27 March 2023 | Panel Members: Member Terence O’Riain, Dr Thomas Rosenthal and Dr Drew Dixon | Injury module: Spine and Upper Limb

Ahmad v AAI Limited t/as GIO [2023] NSWPICMP 172

Review of decision of Medical Assessor (MA) Cameron dated 16 April 2022; the MA determined a 9% whole person impairment (WPI) with respect to scarring of the lower body, left lower extremity, right lower extremity and fractures to right femur, tibia, fibula, right ankle and lumbar spine; claimant injured while riding motorcycle on 28 October 2019; claimant underwent surgery for internal fixation; claimant has ongoing low back pain and right knee stiffness; claimant required to wear an orthotic; Held – claimant demonstrated dysmetria of lumbar spine but no radiculopathy and giving a diagnosis related estimates (DRE) II assessment; claimant also found to have moderate laxity of anterior cruciate ligament which had not previously been addressed by the parties; WPI assessed at total of 20%.

Decision date: 17 April 2023 | Panel Members: Member Alexander Bolton, Dr Shane Moloney and Dr Geoffrey Stubbs | Injury module: Spine, Lower Limb and Minor Skin

Allianz Australia Insurance Limited v Shareen [2023] NSWPICMP 173

Motor Accidents Compensation Act 1999; the claimant suffered injury on 24 May 2017 when her vehicle landed upside down in a ditch; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Panel satisfied that serious motor accident aggravated underlying cervical spine pathology and caused right shoulder injury; subsequent left shoulder symptoms explained by initial disc injury which, once injured, can gradually deteriorate and cause symptomatology in the upper limb; Nguyen v Motor Accidents Authority of NSW referred to; Held – claimant assessed at 16% permanent impairment; original assessment revoked.

Decision date: 1 May 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Drew Dixon | Injury module: Spine and Upper Limb

Stojkovski v QBE Insurance (Australia) Limited [2023] NSWPICMP 174

Review of decision of Medical Assessor (MA) Young; consideration of request for eight sessions of physiotherapy treatment; whether or not requested physiotherapy treatment is reasonable and necessary; claimant injured in a motor vehicle accident on 29 January 2018 as a pedestrian who was collided into by a car; claimant in hospital for 2 to 3 weeks following accident; claimant received physiotherapy treatment following the accident for lower back pain, knee pain and bilateral ankle pain; the MA determined that it was not reasonable to continue with physiotherapy treatment as it was not providing a benefit; MA concluded that the requested for treatment was not appropriate in the circumstances of long-term chronic pain; the Panel considered that if treatment is being provided but not resulting in any benefit then it cannot be said to be reasonable and necessary; the request for physiotherapy treatment was two years post-accident; Held – the Panel determined that the request for eight sessions of physiotherapy treatment in an allied health recovery request of 16 October 2020 was not reasonable and necessary in the circumstances.

Decision date: 1 May 2023 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson and Dr Drew Dixon | Injury module: Treatment Type: Physiotherapy

Houchar v AAI Limited t/as GIO [2023] NSWPICMP 176

Motor Accidents Compensation Act 1999; multiple treatment and care disputes restricted to physical injuries; Panel satisfied ongoing symptoms due to psychiatric injury caused by motor accident; not satisfied that ongoing symptoms relate to physical injuries; claimant has not satisfied that physical injuries caused any future need for care or treatment; past need for care by reason of physical injuries found; Held – original assessment confirmed.

Decision date: 2 May 2023 | Panel Members: Principal Member John Harris, Dr Neil Berry and Dr David Gorman | Injury module: Treatment Type: Domestic Assistance, Surgery, Radiological Investigations, Medical Specialist Consultation, GP Consultations, Medical - Over the Counter, Equipment, Gym/Exercise Program, Hydrotherapy, Facet/Z Joint Injections and Other

Clarke v Allianz Australia Insurance Limited [2023] NSWPICMP 177

Motor Accident Injuries Act 2017; claimant was a driver in a rear end collision; injuries reported to: neck, left shoulder, cervical and lumbar spine, and right knee; claimant stopped at red traffic light; claimant gave evidence that other vehicle travelling between 40 up to 60 km/h; Held – original Medical Assessment Certificate (MAC) certifying all minor injuries was set aside; Panel issued a new MAC; claimant’s injuries caused by the motor accident and are threshold injuries(formerly minor injuries); soft tissue injury to the left shoulder, whiplash injury to cervical and lumbar spine and soft tissue injury right knee; evidence from other driver was that the impact was a low-speed bump; expert evidence mechanical engineer that vehicle impact was a low-speed impact; Panel did not accept the claimant’s account of the speed of impact; Panel found all injuries suffered by the claimant were soft tissue injuries; Panel also found that a left shoulder labral tear and fracture in the right leg occurred subsequent to the subject motor accident and were not caused by it; Panel cited with approval decision in QBE Insurance (Australia) Ltd v Shah at [16] and [17]; biomechanical causation of injury in a motor vehicle accident.

Decision date: 2 May 2023 | Panel Members: Member Ray Plibersek, Dr Drew Dixon and Dr Michael Couch | Injury module: Spine, Upper and Lower Limb

AAI Limited t/as GIO v Mohammed [2023] NSWPICMP 178

Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and insurer’s review under section 63; claimant injured in March 2017 when knocked over by car which ran over him fracturing his left ankle; in July 2017 claimant fell down stairs fracturing his right ankle; the issue in dispute between the parties was the cause of the fall and whether the right ankle fracture was an injury consequential to the original injury; the insurer alleged fall was caused by the claimant’s intoxication noting that an ambulance record said the claimant was under the influence of alcohol; Medical Assessor (MA) Dixon had found the right ankle injury was caused by instability or giving way of the left ankle injury which was caused by accident; WPI was assessed at 12% (8% for the left and 4% for the right ankle); Held– the Panel found that the claimant’s consumption of alcohol may have been a cause but was not the only cause of the claimant’s fall; the claimant was prescribed high levels of antibiotics, was taking other medication and was substantially deconditioned and weak as he had been non-weight bearing for a period of time after the first accident; the Panel found the motor accident was a more than a negligible contribution to the injury to the right ankle; WPI assessed at 13%; Medical Assessment Certificate of MA confirmed.

Decision date: 3 May 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson and Dr Paul Curtin | Injury module: Spine, Upper and Lower Limb and Skin

Salah v QBE Insurance (Australia) Limited [2023] NSWPICMP 179

Review of decision of Medical Assessor (MA) Woo dated 29 March 2022; issue of causation; whether right shoulder arthroscopic rotator cuff tear was causally related to the accident and if so whether it was reasonable and necessary in the circumstances; the MA found that the injury and the surgery were not causally related to the accident; claimant was injured on 13 October 2017; no pre-accident complaints of right shoulder disability; claimant lodged application for assessment nearly two years post-accident with no reference to right shoulder injury for assessment; claimant obtained a report from her treating surgeon of 18 September 2020 who recorded a full thickness right shoulder supraspinatus rotator cuff tear and attributed this to the accident; claimant also sought treatment of an intersegmental L3/4 laminectomy; Held – Panel concluded that laminectomy surgery would accelerate adjacent segment degeneration but Panel also not satisfied with any evidence that any disability of the L3/4 level should be a major cause of the claimants back pain; Panel concluded that the injury to the claimant’s lumbar spine was a soft tissue injury that had resolved; Panel also concluded that there is no causal connection between the subsequent rotator cuff tear found on radiological investigations and that an acute rotator cuff tear would have been symptomatic if it had occurred at the time of the accident; Panel not satisfied that the surgery recommended by the claimant’s treating surgeons is causally related to the accident.

Decision date: 4 May 2023 | Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs and Dr Thomas Rosenthal | Treatment Type: Surgery

Tomic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 180

Motor Accidents Compensation Act 1999; the claimant suffered injury on 18 May 2017 from a rear-end collision; claimant re-examined; treatment disputes; spinal injections (past) and proposed fusion surgery; re-examination by Medical Assessor showed radicular symptoms from the L5/S1 disc and claimant genuine; discussion on separate issues of causation and reasonable and necessary; underlying asymptomatic back condition susceptible to further disc injury; consistent complaints; past injections recommended, appropriate and partially effective; discussion of appropriateness of proposed surgery; relevance of radicular complaints; surgery will likely alleviate radicular symptoms whilst it may not alleviate back pain in the longer term; Held – both treatment dispute reasonable and necessary and caused by the motor accident; original assessment revoked.

Decision date: 4 May 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Treatment Type: Surgery

Insurance Australia Limited t/as NRMA Insurance v Seadon [2023] NSWPICMP 181

Review on the application of the insurer of certificate of Medical Assessor McGlynn who assessed whole person impairment (WPI) at 16%; claimant injured in pushbike versus car accident on 2 January 2016; insured car turned right across the path of the claimant with the claimant and her bike going across the bonnet of the car and landing on the road; ambulance and police did not attend accident; claimant attended General Practitioner the day after the accident; claimant had previous injury to her jaw in 2006 but had not sought treatment for that injury since 2009; prior to the accident the claimant had no issues with mastication; claimant suffered anterior subluxation of her temporomandibular joint meniscus on the right side and hypermobility of the condyle of the right side; claimant developed ongoing jaw pain and ultimately had an arthrocentesis of the right temporomandibular joint and then removal of the meniscus and replacement with a fat graft and subsequently a total joint replacement with a metal implant; claimant still has ongoing jaw pain; restricted diet due to inability to masticate fully and need for soft foods; insurer submitted that the claimant’s disabilities were attributable to the earlier accident in 2006 and denied causation; Held –  Panel was satisfied that the claimant’s injuries were attributable to the accident occurring on 2 January 2016 and WPI assessed at 22% following medical examination.

Decision date: 4 May 2023 | Panel Members: Member Alexander Bolton, Dr Paul Curtin and Dr Tai-Tak Wan | Injury module: Facial Injury

Seadon v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 182

Review of decision of Medical Assessor Ho dated 8 June 2021; claimant was injured in a pushbike versus car accident on 2 January 2016; claimant has suffered psychiatric and physical injuries; the claimant has been separately assessed for whole person impairment (WPI) of her jaw injury which attracted a WPI assessment of 22%; this assessment relates to her other orthopaedic injuries; claimant did not attend hospital immediately following the accident but attended her General Practitioner the following day; with respect to this assessment the claimant suffered injuries to her cervical spine, right shoulder, and right knee; claimant is a keen sportswoman and has a history of ACL reconstruction, other incidents with cars was riding a pushbike and jaw injury; Held – Panel satisfied that the injury suffered by the claimant were causally related to the accident as a result of a sudden impact of a pushbike colliding with a car; WPI assessment for cervical spine of 5% and right shoulder of 4% giving a total WPI assessment of 9%.

Decision date: 4 May 2023 | Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs and Dr Chris Oates | Injury module: Spine, Upper and Lower Limb

Zealand v CIC Allianz Insurance Limited [2023] NSWPICMP 183

Motor Accident Injuries Act 2017; claimant was a passenger in a bus; she was injured when she fell to the floor as the bus started to move; injuries to cervical spine; left arm and shoulder; Held – original Medical Assessment Certificate (MAC) set aside; original MAC assessed the claimant with a 10% permanent impairment caused by the motor accident; original MAC compared the “uninjured” right shoulder to the injured left shoulder when making the assessment; on review the Panel noted that the right shoulder had been previously injured in 2014 and could not be used as a baseline or comparison to assess the injured left shoulder injury; subsequent to subject motor vehicle accident, claimant had sustained a further injury to the left shoulder as a result of a fall at home; Panel found that bus accident caused a soft tissue injury to the cervical spine and a fracture to the left proximal humerus in the left arm; 8% WPI of the left shoulder and 0% WPI for the cervical spine due to the bus accident.

Decision date: 4 May 2023 | Panel Members: Member Ray Plibersek, Dr Clive Kenna and Dr Chris Oates | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Vision Pools Pty Limited v Riley [2023] NSWPICMP 184

Workplace Injury Management and Workers Compensation Act 1998; injury to cervical and thoracic spines and right shoulder; section 323 deduction not made by Medical Assessor (MA) but was appropriate in both cervical and thoracic spines in light of pre-existing radiological findings; MA assessed right upper extremity impairment higher than other examiners; other medical evidence showed greater range of movement; inconsistency observed on re-examination; assessment of range of movement inappropriate; Held – Medical Assessment Certificate revoked.

Decision date: 4 May 2023 | Panel Members: Member Catherine McDonald, Dr Mark Burns and Dr Drew Dixon | Body system: Cervical and Thoracic Spine and Right Upper Extremity

Walter Carter Funerals Pty Ltd v Cameron [2023] NSWPICMP 185

Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; worker who had suffered a slow improvement since a previous examination had reached maximum medical improvement; section 323 deduction; Medical Assessor was not required to calculate degree of permanent impairment before the injury; Marks v Secretary of Communities and Justice (No 2), Secretary and Department of Communities and Justice v Lewandowski discussed; one-tenth deduction was appropriate; psychiatric impairment rating scale (PIRS) table for employability; Jenkins v Ambulance Service of NSW and Ferguson v State of NSW discussed; Held – MA not required to agree with certificates of capacity; Medical Assessment Certificate confirmed.

Decision date: 5 May 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric

Crowl v Chad Anthony Constructions Pty Limited [2023] NSWPICMP 186

Appeal from assessment of whole person impairment (binaural hearing impairment); whether Medical Assessor made a deduction for pre-existing condition or abnormality; whether he erred in excluding losses at 1500Hz and below; Held – Medical Assessment Certificate revoked and replaced with new Certificate.

Decision date: 5 May 2023 | Panel Members: Member Richard Perrignon, Dr Henley Harrison and Dr Robert Payten | Body system: Hearing

BEZ v Legal Aid Commission of NSW [2023] NSWPICMP 187

Psychological injury; assessment under psychiatric impairment rating scale (PIRS); past psychological conditions; need for detailed and careful history and identification of relevant vulnerability; Held – Medical Assessment Certificate revoked.

Decision date: 8 May 2023 | Panel Members: Member Catherine McDonald, Dr Graham Blom and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Priestley v Luxury Travel Pty Ltd [2023] NSWPICMP 188

Appeal from assessment of whole person impairment (psychological); whether Medical Assessor (MA) erred in failing to consider a date of injury not specified in the referral; whether MA erred in failing to diagnose post-traumatic stress disorder; whether MA erred in finding that the appellant’s functioning had improved since injury; whether MA took into account irrelevant considerations; Held – Medical Assessment Certificate confirmed.

Decision date: 8 May 2023 | Panel Members: Member Richard Perrignon, Dr John Baker and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Buxton v Stewart House [2023] NSWPICMP 189

Appeal by worker against findings in Medical Assessment Certificate (MAC) in respect of the psychiatric impairment rating scale (PIRS) category of travel; finding of error on the part of the Medical Assessor in failing to provide adequate reasons for placing the appellant worker in Class 1 of the PIRS for travel and making such a finding on inadequate evidence; appellant worker re-examined by a member of the Appeal Panel; Held – finding that the appellant should be placed in Class 2 for travel; MAC revoked and new MAC issued.

Decision date: 8 May 2023 | Panel Members: Member Brett Batchelor, Dr Nicholas Glozier and Dr Graham Blom | Body system: Psychological/Psychiatric

Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW) [2023] NSWPICMP 190

Workplace Injury Management and Workers Compensation Act 1998; whether any error with Medical Assessor’s (MA) ratings of appellant’s impairment in psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene and concentration, persistence and pace; whether any error in MA making one third deduction under section 323(1); Held –MA based assessment on correct criteria and Medical Assessment Certificate (MAC) did not contain a demonstrable error; MAC confirmed.

Decision date: 8 May 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Graham Blom | Body system: Psychological/Psychiatric

Alder v Buckland Convalescent Hospital [2023] NSWPICMP 191

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to his rating of appellant’s impairment in psychiatric impairment rating scale (PIRS) category of employability; whether MA erred by not making section 323 deduction; Held – Appeal Panel found that MA erred with respect to both matters but when errors corrected same outcome; Medical Assessment Certificate confirmed.

Decision date: 8 May 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Burwood Council v Viney [2023] NSWPICMP 192

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; application to admit statement after medical examination declined; Lukacevic v Coates Hire Operations and Pitsonas v Registrar of the Workers Compensation Commission discussed; failure to refer to employer’s medical reports; section 352(2), State of NSW v Kaur; assessment under psychiatric impairment rating scale (PIRS); Ferguson v State of NSW, Parker v Select Civil and Ballas v Department of Education discussed; Held – Medical Assessment Certificate confirmed.

Decision date: 8 May 2023 | Panel Members: Member Catherine McDonald, Dr Graham Blom and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Secretary, Department of Customer Service v Kouros [2023] NSWPICMP 193

Appeal from finding that claimant suffered de Quervain’s syndrome; whether de Quervain’s syndrome can be cured; Held – appeal misconceived as de Quervain’s syndrome is recurrent and employer’s reliance on previous surgical release on both wrists did not signify that the claimant had totally recovered; Medical Assessment Certificate confirmed.

Decision date: 8 May 2023 | Panel Members: Member John Wynyard, Dr John Brian Stephenson and Dr David Crocker | Body system: Right and Left Upper Extremity

Motor Accidents Merit Review Panel Decision

Lim v AAI Limited t/as GIO [2023] NSWPICMRP 1

Motor Accident Injuries Act 2017; dispute about payment of statutory benefits under section 3.24 and/or 3.28; dispute about payment of expenses under section 8.10; interpreter fees; meaning of treatment and care; jurisdiction; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; compliance with directions; power to dismiss proceedings; Held – the application for a merit review is dismissed.

Decision date: 2 May 2023 | Merit Reviewers: Katherine Ruschen, Shana Radnan and Terence O’Riain

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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