Legal Bulletin No. 117
This bulletin was issued on 30 June 2023
Issued 30 June 2023
Welcome to the hundred and seventeenth 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
Prescott v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 33
Workers compensation; section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; requirement to show error in order revoke a Certificate of Determination; Held – the Member’s Certificate of Determination dated 6 July 2022 is revoked.
Decision date: 21 June 2023 | Before: Deputy President Elizabeth Wood
Vila v Essential Smash Repairs Pty Ltd (Deregistered) [2023] NSWPICPD 34
Workers compensation; statutory interpretation; consideration of the term “actual earnings paid or payable to the worker in respect of that week” in section 44E(1) (in force at date of injury but since repealed) of the Workers Compensation Act 1987; whether proper application of the principles of construction; Project Blue Sky Inc v Australian Broadcasting Authority, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) and 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No. 73943 applied; Held – the Member’s Certificate of Determination dated 20 April 2022 is revoked; the matter is remitted for re-determination by a different Member.
Decision date: 22 June 2023 | Before: Acting Deputy President Michael Perry
Motor Accidents non-Presidential Member Decision
Abid v AAI Limited t/as GIO [2023] NSWPIC 188
Motor Accidents Injuries Act 2017; section 6.14; claimant self-represented; did not attend teleconferences and did not engage with the Personal Injury Commission’s attempts to contact her; 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 Personal Injury Commission Rules; Held –application to assess damages is misconceived and dismissed.
Decision date: 28 April 2023 | Member: Terence O’Riain
Workers Compensation non-Presidential Member Decisions
BDX v Qantas Airways Ltd [2023] NSWPIC 217
Workers Compensation Act 1987; claim for psychological injury; claim for entitlement pursuant to section 66;consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of the reliability of evidence, including the weight to be given to unsigned statements and whether medical reports prepared in a fair climate; Belmon v Custom Carpets Pty Limited, Onesteel Reinforcing Limited v Sutton, Paric v John Holland (Constructions) Pty Limited (NSWLR), Paric v John Holland (Constructions) (HCA) and ACW v ACX considered; consideration of whether the applicant sustained a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with section, as a result of adverse interactions, bullying, intimidation, isolation, assaults, and threats received arising out of or in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of, that disease; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K and AV v AW considered; Held – the applicant, as a result of workplace incidents to which he was subjected, sustained a psychological injury (being the contraction of a disease) in accordance with section 4(b)(i), in relation to which his employment with the respondent was the main contributing factor; dispute remitted to the President of the Personal Injury Commission for Medical Assessment referral in relation to the degree of the applicant’s whole person impairment.
Decision date: 12 May 2023 | Member: Gaius Whiffin
Evans v State of New South Wales (Murrumbidgee Local Health District) [2023] NSWPIC 245
Workers Compensation Act 1987; claim for weekly compensation and incurred treatment expenses for alleged psychological injury due to bullying and intimidation by supervisors; whether real events; hierarchy of causative events; contribution of applicant’s failure of the final subject of a master’s program; section 11A(1); provision of employment benefits; Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence; orders for payment of weekly compensation and treatment expenses.
Decision date: 26 May 2023 | Member: Rachel Homan
Mackenzie v Combined District Radio Cabs Pty Ltd [2023] NSWPIC 283
Workers Compensation Act 1987; claim for total right knee replacement surgery; applicant had prior history of niggling right knee pain due to osteoarthritis then specific incident in the course of her employment; Held – applicant a reliable historian and preponderance of medical opinion supports relationship between current need for surgery and incident at work; section 60(5) declaration accordingly in favour of the applicant.
Decision date: 16 June 2023 | Member: Philip Young
Magin v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 284
Claim for weekly payment; parties agree the applicant was a deemed worker of first respondent, that he suffered a psychological injury and that since the deemed date of injury he has been permanently incapacitated for employment; only issue in dispute is the applicant’s pre-injury average weekly earnings (PIAWE); Held – the provisions of clause 8C and clause 8D of the Workers Compensation Regulation 2016 apply to the benefit of the applicant in reducing the relevant earnings period for the purposes of calculating his PIAWE to the period between 9 December 2021 when he was first paid and 25 February 2022, the date he was last paid and the first date of his incapacity for employment; accordingly, the applicant’s PIAWE was $727.27 per week; the second respondent ordered to pay the applicant weekly compensation as set out in the Certificate of Determination, based on the PIAWE referred to from 22 June 2022 to date and continuing, pursuant to sections 36 and 37 of the Workers Compensation Act 1987;the first respondent is to repay the second respondent for any compensation payments made to the applicant.
Decision date: 16 June 2023 | Member: Cameron Burge
Middleton v University of Sydney Business School [2023] NSWPIC 285
Workers Compensation Act 1987; claim for whole person impairment arising from alleged psychological injury due to adverse employment conditions encountered by the applicant in the course of her employment with the respondent; a multitude of causative factors including performance appraisal, intensive performance management, intensive supervision, negative feedback and criticism and a number of workplace incidents; whether real events; whether the employer’s actions were reasonable in all the circumstances surrounding the applicant’s employment; the breadth of the definition of discipline considered; section 11A(1); Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence; matter to be relisted for referral by the Member for referral to the President of the Personal Injury Commission for assessment by a Medical Assessor.
Decision date: 19 June 2023 | Member: Lea Drake
BJP v Employers Mutual Management Limited [2023] NSWPIC 286
Claim for weekly compensation, whole person impairment and treatment expenses for an alleged psychological injury due to bullying and intimidation of the applicant by a supervisor of the respondent; are there special circumstances sufficient to establish an exemption to the notice provisions of the legislation; was the alleged bullying and intimidation by a supervisor the main contributing factor to any aggravation of an agreed underlying psychiatric condition; Held –thecircumstances of the applicant’s employment with the respondent was not the main causative factor in the aggravation of the underlying psychiatric condition suffered by the applicant.
Decision date: 19 June 2023 | Member: Lea Drake
Haisell v Australian Unity Home Care Services Pty Ltd [2023] NSWPIC 287
Claim for lump sum compensation in respect of accepted shoulder injury; whether consequential cervical spine condition; use of a sling and postural changes due to pain at shoulder; age-related pathology at the cervical spine; limited references to cervical symptoms in treating evidence; credibility; Held – the applicant sustained a consequential condition at the cervical spine as a result of the shoulder injury; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess the degree of permanent impairment.
Decision date: 19 June 2023 | Member: Rachel Homan
Treuer v Toyota Material Handling Australia Pty Limited [2023] NSWPIC 288
Workers Compensation Act 1987; accepted primary psychological injury on 14 April 2021 (deemed); further incidents occurred on the applicant’s return to work with the same employer in January and February 2022; respondent argued that the was a further and separate primary psychological injury under section 4(b)(ii) in respect of the latter incidents; Ogden Industries Pty Ltd v Lucas considered and distinguished; Federal Broom Co Pty Ltd v Semlitch, DHL Excel Supply Chain (Australia) Pty Ltd v Hyde and Paric v John Holland (Constructions) Pty Ltd considered; Kooragang Cement Pty Ltd v Bates, The State Government Insurance Commission v Oakley and Secretary, New South Wales Department of Education v Johnson considered and applied; Held –the applicant suffered a primary psychological injury of gradual onset deemed to have occurred on 14 April 2021 within the meaning of section 4(b)(i); the applicant has had no current work capacity within the meaning of section 32A since 8 March 2022; the applicant’s incapacity results from the primary psychological injury deemed to have occurred on 14 April 2021; the respondent is to pay the applicant weekly compensation in respect of the primary psychological injury deemed to have occurred on 14 April 2021; the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 14 April 2021 under section 60.
Decision date: 19 June 2023 | Member: Anthony Scarcella
Workers Compensation Act 1987; application pursuant to section 145(3) to dismiss notice issued by respondent pursuant to section 145(1); applicant disputed jurisdictional precondition that employer be uninsured at relevant time; whether there was an employer (labour hire company) for the purposes of section 140; employment; injury; substantial contributing factor; weekly benefits; medical expenses; and whether the respondent was able to rely on first statement of principal, provided to factual investigator engaged on behalf of respondent; consideration of WorkCover Authority of NSW v Mackley, Kula Systems Pty Ltd v Workers Compensation Nominal Insurer, Sun Alliance & Royal Insurance Australia Ltd v WorkCover Authority (NSW), WorkCover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler, Personal Injury Commission Rules 2021 and Procedural Direction PIC 4; expert witness evidence; statement of principal of applicant provided to investigator admitted; Held – worker was employed by applicant; worker sustained injury arising out of or in the course of employment with applicant; employment was substantial contributing factor to injury; appropriate weekly benefits paid; medical and related treatment reasonably necessary; applicant to reimburse respondent the sum of $39,633.87 pursuant to section 145(4).
Decision date: 20 June 2023 | Senior Member: Kerry Haddock
Konakas v Luxottica Retail Australia Pty Ltd [2023] NSWPIC 290
Claim for permanent impairment compensation as a result of three incidents of injury which occurred in the course of the applicant’s employment with the respondent, the occurrence of which was not in issue, and a condition consequent upon injuries sustained in those three incidents; the claimed consequent condition occurred when the applicant fell while descending stairs at home suffering significant injuries; claim also for weekly benefits compensation as a result of injuries sustained in the second two of the three incidents not in issue; Held – finding that the condition which occurred when the applicant fell at home descending stairs was consequent upon the second two of the three incidents of injury not in issue; finding in respect of the injuries the subject of the consequent condition to be referred to a Medical Assessor (MA) for assessment; matter W1613/23 referred to MA for assessment of permanent impairment as a result of injury sustained in the second two of the incidents of injury not in issue, and the condition sustained in the fall at home while descending stairs; matter W1654/23 (ordered to be heard with matter number W1613/23) referred to MA for assessment of permanent impairment as a result of injury sustained in the first of the three incidents of injury the occurrence of which was not in issue; matter W1613/23 to be referred back to the Personal Injury Commission for the determination of outstanding issues after issue of the Medical Assessment Certificate(s) and expiration of the appeal period in respect of such certificate(s).
Decision date: 20 June 2023 | Member: Brett Batchelor
Cavanagh v Manning Valley Race Club Limited [2023] NSWPIC 291
Assessment of costs; Court of Appeal ordered the respondent to pay the applicant’s costs in respect of the substantive proceedings in the District Court and in the Court of Appeal in accordance with Schedule 7 of the Workers Compensation Regulation 2016; parties unable to reach agreement before and after a preliminary conference; applicant withdrew claim for some disbursements and sought the maximum costs in accordance with Schedule 7; disbursements agreed apart from the fees for an engineer’s report and an accountant who calculated interest; itemised bill quantified professional costs of $151,990.85 inclusive of GST; bill on assessment reduced to $118,533.25 inclusive of GST; Held – it was reasonable for the applicant to retain an expert engineer and an accountant; their fees were fair and reasonable and not unreasonably incurred; respondent ordered to pay $93,694.40 inclusive of GST being the maximum payable for professional costs in accordance with Schedule 7, plus disbursements as agreed or assessed, including the applicant’s cost assessor’s fees; respondent ordered to pay the Personal Injury Commission’s costs of the assessment.
Decision date: 20 June 2023 | Principal Member: Glenn Capel
Lyons v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 292
Claim for cost of right shoulder surgery; whether need for surgery arose from subject injury; applicant suffered right shoulder injury in fall, developed dislocations three months later; Held – subsequent dislocations causally connected to subject injury and would not have occurred but for subject injury; Secretary, New South Wales Department of Education v Johnson, The State Government Insurance Commission v Oakley and Carr v State of New South Wales (Mid North Coast Local Health District) considered and applied; award for the applicant.
Decision date: 20 June 2023 | Member: John Wynyard
Motor Accidents Presidential Delegate Decision
QBE Insurance (Australia) Limited v Lay [2023] NSWPIC 281
Delegate of President rejecting application for review of merit review decision of Merit Reviewer; interpretation of a “pending” claim for damages on foot; whether claimant entitled to weekly payments of statutory benefits beyond 104 weeks under section 3.12(1) and subsection 3.12(2)(a) of the Motor Accident Injuries Act 2017; Held – the review application is not accepted and will not be referred to a Merit Review Panel.
Decision date: 13 June 2023 | Delegate: Jeremy Lum
Motor Accidents Medical Review Panel Decisions
Gorgis v AAI Limited t/as GIO [2023] NSWPICMP 263
Motor Accident Injuries Act 2017; threshold injury from sideswipe collision; short delay in onset of symptoms in right shoulder; greater delay in onset of left shoulder symptoms; claimant did not describe direct trauma to either shoulder from motor accident; claimant was regularly lifting very heavy weights at gym and otherwise lesser but repetitive weights at work; minimal force directed to right shoulder and none to the left shoulder from the motor accident; no injury to left shoulder; no aggravation of right shoulder pathology caused by motor accident; other injuries threshold injuries; Held – claimant suffered threshold injuries; original assessment confirmed.
Decision date: 9 June 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Drew Dixon | Injury module: Spine and Upper Limb; Treatment Type: Medical Specialist Consultation
BQD v Allianz Australia Insurance Limited [2023] NSWPICMP 264
Motor Accident Injuries Act 2017; review of medical assessment in accordance with section 7.26; dispute about whether the claimant’s psychological injury resulting from the accident was a ‘minor injury’ (now ‘threshold injury’); where Medical Assessor (MA) certified that chronic adjustment disorder with anxiety was caused by the accident and is a minor injury; claimant sought a review of decision; Held – the claimant suffers adjustment disorder with mixed disturbance of emotions and conduct, persistent, and that this condition was caused by the accident; the diagnosed condition is a threshold injury; while the certificate issued by the MA uses the term ‘minor injury’ and the Panel found that the claimant’s psychological injury is a ‘threshold injury’, the Panel considered that this is a change of terminology only, that did not require it to issue a new certificate; Medical Assessment Certificate confirmed.
Decision date: 9 June 2023 | Panel Members: Senior Member Brett Williams, Dr Thomas Newlyn and Dr Michael Hong | Injury module: Mental and Behavioural
Insurance Australia Limited t/as NRMA Insurance v Knezevic [2023] NSWPICMP 265
Motor Accident Injuries Act 2017; assessment of whole person impairment (WPI); motor vehicle accident on 18 May 2017; Medical Assessor Rapaport assessed 13% WPI; injury to cervical spine; injury to both shoulders; Held – soft tissue injury to cervical spine assessed as diagnosis related estimate (DRE) Cervicothoracic Category I or 0% WPI; shoulder symptoms deemed resolved by physiotherapist as of July 2017; claimant returned to playing soccer; subsequent deterioration of shoulder symptoms in April 2019 not causally related to accident; soft tissue injury sustained to both shoulders caused by accident resolved with no assessable impairment.
Decision date: 14 June 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Thomas Rosenthal | Injury module: Spine and Upper Limb
BMF v Allianz Australia Insurance Limited [2023] NSWPICMP 266
Review of certificate of Medical Assessor (MA) Hong dated 25 August 2021; claimant injured in motor vehicle accident on 27 April 2015 when 12 years old; claimant suffered psychiatric disabilities; MA assessed 7% whole person impairment (WPI) for an adjustment disorder with depressed mood and anorexia nervosa; claimant challenged the classes of assessment adopted by MA; claimant had pre-existing eating disorder but submitted that the accident gave rise to this disorder; Panel not satisfied that the accident caused more than an aggravation of the eating disorder and that the claimant’s eating disorder was were caused or contributed to by the accident; Held – that the claimant had a 9% WPI with a diagnosis of chronic adjustment disorder and mixed anxiety but that the claimant’s eating disorder was not caused by the accident.
Decision date: 15 June 2023 | Panel Members: Member Alexander Bolton, Dr Matthew Jones and Dr Gerald Chew | Injury module: Mental and Behavioural
Venter v AAI Limited t/as GIO [2023] NSWPICMP 267
Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Home’s decision under section 7.26; claimant knocked off her bicycle injuring her neck, back and both shoulders; MA assessed neck and the right hip but did not assess the right hip; issue in assessment of neck, presence of radiculopathy; issue in assessment of right hip, causation of tear of the labrum and gluteus minimus; no issue identified in submissions concerning the back; Held – back not considered; claimant has not had at any time since the accident two of the five signs of cervical radiculopathy; right hip labral tear and tear of gluteus minimus caused by accident; claimant had substantial unresolved bruise leaving a mass under the skin which is an indicator of significant force; fall onto right hip could have and did cause injury; tears not visible on ultrasound eight months after the accident but visible on MRI nine months after that; MA was of the view that MRI is more sensitive and on the basis of no pre or post-accident relevant history the tears were caused by the accident and are a non-threshold injury; Medical Assessment Certificate revoked.
Decision date: 15 June 2023 | Panel Members: Member Belinda Cassidy, Dr Drew Dixon and Dr Paul Curtin | Injury module: Spine and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Aziz [2023] NSWPICMP 268
Review of Medical Assessment Certificate and reasons of Medical Assessor (MA) Chan dated 30 April 2021; claimant involved in a motor vehicle accident on 1 September 2018 suffering cervical and lumbar spine injuries and claiming deep vein thrombosis (DVT) of left leg and also incontinence; determination of the Review Panel about whether the claimant had suffered non-threshold injuries; MA determined that the claimant had suffered threshold injuries only; no evidence of radiculopathy on examination and no signs satisfied in clause 5.8 of the Motor Accident Guidelines (version 9.1, effective 1 April 2023); significance of annular tears and annular fissures discussed; claimant had long pre-accident history of spinal complaint; Panel not satisfied that there was an annular tear arising because of the accident and concluded that the claimant had a disc herniation which was a senile bulge; panel did not accept that claim of DVT and incontinence arose from the accident; Held – the claimant had suffered threshold injuries to her cervical spine and her lumbar spine.
Decision date: 15 June 2023 | Panel Members: Member Alexander Bolton, Dr Geoffrey Stubbs and Dr Margaret Gibson | Injury module: Spine and Lower Limb
Seghabi v AAI Limited t/as AAMI [2023] NSWPICMP 269
Motor Accident Injuries Act 2017; Medical Review panel; review of certificate of Medical Assessor (MA) Jones who certified any psychiatric condition had resolved; Held –Medical AssessmentCertificate of MA revoked; accident caused relapse of post-traumatic stress disorder now in remission; not assessable; accident caused exacerbation of pre-existing persistent depressive disorder; 1% whole person impairment (WPI) for persistent depressive disorder; pre-existing WPI 0%; total WPI of 1% for persistent depressive disorder.
Decision date: 15 June 2023 | Panel Members: Member Susan McTegg, Dr Melissa Barrett and Dr Christopher Rikard-Bell | Injury module: Mental and Behavioural
Russo v QBE Insurance (Australia) Limited [2023] NSWPICMP 270
Motor Accidents Compensation Act 1999; the claimant suffered injury on 4 April 2017 when the vehicle lost control avoiding oil on roadway; 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; discussion of non-verifiable radicular complaints; claimant’s arm symptoms not in a verified nerve root and did not accord with cervical spine pathology; loss of shoulder movement disproportionate to findings on MRI scan; inconsistency in movements on examination; restricted shoulder movement assessed by way of analogy; other body parts rated no assessable loss on examination findings; Held – claimant assessed at 2% permanent impairment; original assessment confirmed.
Decision date: 15 June 2023 | Panel Members: Principal Member John Harris, Dr Mohammed Assem and Dr Geoffrey Stubbs | Injury module: Spine, Upper and Lower Limb
Insurance Australia Limited t/as NRMA Insurance v Francisco (No 2) [2023] NSWPICMP 272
Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor Bodel’s decision under section 7.26; Held – claimant tore or further tore the soft tissues of his rotator cuff in the accident which was a non-threshold injury; surgery to repair torn rotator cuff included screwing anchors into bone which is also a non-threshold injury; Reed v Allianz Australia Insurance Limited applied and followed.
Decision date: 15 June 2023 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Tom Rosenthal | Injury module: Upper Limb
Insurance Australia Limited t/as NRMA Insurance v Francisco (No 1) [2023] NSWPICMP 271
Motor Accident Injuries Act 2017; medical assessment of treatment dispute about surgery and insurer’s review of Medical Assessor (MA) Bodel’s decision under section 7.26; claimant a motorbike rider; alleged injury after being hit from behind by a car as he was trying to stabilise the bike and stop it from falling; claimant alleged left shoulder injury including full thickness rotator cuff tear; treating surgeon recommended arthroscopic repair which was refused by the insurer; claimant had long history of right shoulder injury including full thickness tear and shoulder replacement surgery; issues of causation including pre-accident incident, no contemporaneous record of left shoulder complaint and overuse of left shoulder due to right shoulder problems; Held– claimant would have had some pre-accident pathology in his left shoulder before the accident; absence of contemporaneous note on day after accident not dispositive; Norrington v QBE Insurance (Australia) Ltd and AAI Ltd t/as GIO for the Nominal Defendant v McGiffen referred to; claimant’s version of accident accepted; claimant injured his left shoulder in the accident; surgery related to the injury; AAI Limited t/as AAMI v Phillips followed; surgery reasonable and necessary in the circumstances; Clampett v Workcover Authority of NSW and Diab v NRMA Limited followed; Medical Assessment Certificate confirmed.
Decision date: 15 June 2023 | Panel Members: Member Belinda Cassidy, Dr Geoffrey Stubbs and Dr Tom Rosenthal | Treatment Type: Surgery
Workers Compensation Medical Appeal Panel Decisions
Port Stephens Council v Pearsall [2023] NSWPICMP 207 [2023] NSWPICMP 207
Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged error in assessment under four categories of the Psychiatric Impairment Ratings Scale (PIRS); social and recreational activities; travel; social functioning; concentration, persistence and pace; Appeal Panel found error in the assessments for social and recreation activities and social functioning; appellant employer also alleged error in extent of deduction under section 323 for a condition he diagnosed as Autism Spectrum Disorder (ASD); the respondent worker challenged the finding of ASD; earlier in the Medical Assessment Certificate (MAC), the Medical Assessor (MA) had said that such a diagnosis of ASD required corroborative evidence; despite stating that this was required the MA went onto diagnose ASD and make a deduction on this basis; there is no other medical evidence to support such a diagnosis; a pre-existing eccentricity of personality or vulnerability does not equate to a pre-existing psychiatric or psychological condition or abnormality; no deduction should have been made for a condition of ASD in these circumstances; Held – MAC revoked.
Decision date: 15 May 2023 | Panel Members: Jane Peacock, Dr Douglas Andrews and Dr Graham Blom | Body system: Psychological/Psychiatric
Ryles v Winifred West Schools Limited [2023] NSWPICMP 208
Injury to bilateral upper extremities; worker appealed submitting that the Medical Assessor (MA) made a demonstrable error and made an assessment of the basis of incorrect criteria; the role of the MA is to make an independent assessment on the day of examination in accordance with the Guidelines; the MA appeared to base his assessment on a mid-range point between the opinion of the Independent medical expert (IME) qualified on behalf of the applicant and the IME qualified on behalf of the respondent; a re-examination was considered necessary in the circumstances; Held – Medical Assessment Certificate revoked.
Decision date: 16 May 2023 | Panel Members: Jane Peacock, Dr John Brian Stephenson and Dr Margaret Gibson | Body system: Right and Left Upper Extremity
BFV v Philip Leong Stores Pty Ltd [2023] NSWPICMP 275
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 and recreational activities and employability; the ratings in these classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.
Decision date: 16 June 2023 | Panel Members: Member Jane Peacock, Dr Graham Blom and Dr Douglas Andrews | Body system: Psychological/Psychiatric
Petreski v D Akmadziz & I Admadzic [2023] NSWPICMP 276
Workplace Injury Management and Workers Compensation Act 1998; appeal by worker on the grounds that the Medical Assessor (MA) failed to provide reasons for non-occupational noise quantum, failed to address the proportion to which his industrial deafness related to non-occupational deafness, failed to assess the degree of permanent impairment in accordance with section 323, failed to take into account the noise levels in respect of the lower frequencies, and failed to distinguish between the effects on industrial deafness and non-occupational deafness; the Appeal Panel found error in the inclusion by the MA of hearing loss sustained during a long period of self-employment into the deduction made pursuant to section 323, and in the manner in which the degree of noise exposure in self-employment should be dealt with; the appellant worker was re-examined by a member of the Panel; the Panel also found error in the frequencies over which the Medical Assessor assessed occupational hearing loss; Held – Medical Assessment Certificate revoked and new certificate issued.
Decision date: 16 June 2023 | Panel Members: Member Brett Batchelor, Dr Brian Williams and Dr Robert Payten | Body system: Hearing
Secretary, Department of Education v Egan [2023] NSWPICMP 277
Whether Medical Assessor (MA) disregarded the respondent’s impairment and symptoms from a secondary psychological injury when assessing the respondent’s permanent impairment from a primary psychiatric injury; Appeal Panel found the MA had not, but when the respondent’s impairment and symptoms from a secondary psychological injury are disregarded, there is no difference in the outcome; Held – Medical Assessment Certificate confirmed.
Decision date: 16 June 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Bayside Council v Whyte [2023] NSWPICMP 278
Appeal against 3% assessment for tinnitus; whether Medical Assessor (MA) gave adequate reasons; Held – applying Campbelltown City Council v Vegan, the MA was obliged to give an adequate explanation regarding competing conclusions; the MA’s explanation was adequate, and observations made as to detail required.
Decision date: 16 June 2023 | Panel Members: Member John Wynyard, Dr Joseph Scoppa and Dr Henley Harrison | Body system: Hearing
Kirk v Hanrahans Accounting Services Pty Limited [2023] NSWPICMP 279
Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing Social and recreational activities, social functioning, concentration persistence and pace or employability; Held – Medical Assessment Certificate revoked.
Decision date: 16 June 2023 | Panel Members: Member Richard Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier | Body system: Psychological/Psychiatric
Camacho v Convoluted Technologies Pty Ltd [2023] NSWPICMP 280
Psychological injury; consideration of statements in the file; requirements for a medical assessment certificate; section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; need to disclose reasoning process; assessment under the Psychiatric Impairment Rating Scale (PIRS); Jenkins v Ambulance Service of NSW and State of NSW v Kaur discussed; re-assessment required; Held – Medical Assessment Certificate revoked.
Decision date: 19 June 2023 | Panel Members: Member Catherine McDonald, Dr John Baker and Dr Michael Hong | Body system: Psychological/Psychiatric
Appeal against 22% lumbar spine assessment; Held –appeal incompetent; submissions made in form of letter from solicitor to client; Medical Assessment Certificate confirmed.
Decision date: 19 June 2023 | Panel Members: Member John Wynyard, Dr James Bodel and Dr Roger Pillemer | Body system: Spine, Right and Left Lower Extremity, ENT and Related Structures; Skin and Scarring (TEMSKI)
BGS v The School Photographer Pty Ltd [2023] NSWPICMP 282
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 and recreational activities and social functioning; the rating in the class of self-care and personal hygiene was open to the Medical Assessor (MA) but the ratings in the classes of social and recreational activities and social functioning were not was not open to the Medical Assessor; inadequate history and reasoning by the MA; re-examination considered necessary; Held – Medical Assessment Certificate revoked.
Decision date: 20 June 2023 | Panel Members: Member Jane Peacock, Professor Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric
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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