Legal Bulletin No. 127

Issued 8 September 2023

Welcome to the one hundred and twenty seventh edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.

Workers Compensation non-Presidential Member Decisions

Temmuz v Stock Specialist Pty Ltd [2023] NSWPIC 429

Claim for weekly compensation in respect of accepted psychological injury at a higher rate than has been paid; whether commissions to which the applicant says he was entitled to be included in pre-injury average weekly earnings (PIAWE); non-compliance by employer with Notices to Produce and requests by insurer for records relating to employment; Held – no dispute that commissions not in fact paid; documents identified as employment contracts by applicant unsigned, undated and vague with regard to the entitlement to commission; evidence insufficient to establish entitlement to commissions or quantum of entitlement; Commission declined to make orders sought by applicant.

Decision date: 24 August 2023 | Member: Rachel Homan

Bullock v Kincare Health Services Pty Ltd [2023] NSWPIC 430

Workers Compensation Act 1987; the respondent employer claimed that the applicant, who had been assessed as a worker with high needs and in receipt of weekly benefits decided under section 43(1)(a), was able to return to work in suitable employment for nine hours a week; review of extensive medical evidence, the applicant’s lay evidence, Functional Assessment Report and Vocational Assessment report relied upon by respondent; Held – finding that the applicant had no current work capacity; award for the applicant pursuant to section 38.

Decision date: 28 August 2023 | Member: Brett Batchelor

Yogarajah v Ventia Services Pty Ltd [2023] NSWPIC 431

Workers Compensation Act 1987; applicant claimed weekly compensation and section 60 medical expenses for an alleged injury to her back in a work fall; her statements claimed no or only minor back problems pre-fall; the medical evidence established a long history of very significant back problems over many years with the applicant suffering significant impairments pre-fall; the applicant’s first statement and the initial treating medical records made no mention of back or leg pain being experienced by the applicant at the time of the fall however a subsequent statement and histories to doctors claimed an immediate onset of back pain at the time of the fall with the intensity of the pain eventually being described as being so severe that she was unable to mobilise following the fall; applicant’s evidence and histories to doctors found to be unreliable; the medical evidence of the applicant found to be based on incorrect histories of little probative value or so illogical or ill-considered as to be of little probative value; Held – no actual persuasion that the applicant suffered any injury to her lumbar spine in the nature of a personal injury; Drca v Kab Sealing Systems Pty Ltd applied; no injury in the nature of a disease contracted in the course of employment to which the employment was the main contributing factor; no injury in the nature of an aggravation acceleration exacerbation or deterioration of a disease; awards for the respondent on the claims for weekly compensation and section 60 expenses.

Decision date: 28 August 2023 | Member: Michael Moore

Kinslow v Hippo Espresso (in liquidation) [2023] NSWPIC 432

Lumbar spine injury (undisputed) and allegation of thoracic spine injury (disputed) and consequential conditions in thoracic spine and cervical spine (disputed); evidence weighed in the balance and on the evidence; awards for the respondent on allegation of thoracic spine injury and consequential condition in cervical spine; Held – award for the applicant on allegation of consequential condition in thoracic spine; lump sum claim and accordingly matter remitted to the President for referral to a Medical Assessor.

Decision date: 30 August 2023 | Member: Jane Peacock

Harrigan v Traffic Logistics Pty Ltd [2023] NSWPIC 433

Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to cervical spine, thoracic spine, lumbar spine, fracture of a rib, and psychological injury in a motor accident in the course of employment; respondent concedes injury to cervical spine (but claims that the effects of that injury have resolved) and otherwise disputes injury to the other body parts; reference to North Coast Area Health Service v Felstead on the definition of a personal injury pursuant to section; Held – the worker sustained an injury to his thoracic spine and continues to suffer the effects of injury to the cervical spine and thoracic spine; the worker sustained an injury to the right rib but the effects of that injury have now resolved; the worker did not sustain an injury to the lumbar spine or a psychological injury; award of weekly payments of compensation for partial incapacity for work and the payment of medical expenses for treatment of the injury to the cervical spine and thoracic spine.

Decision date: 30 August 2023 | Member: John Isaksen

Motor Accidents Medical Review Panel Decisions

Pikos v AAI Limited t/as AAMI [2023] NSWPICMP 401

Medical Assessor (MA) diagnosed an Alcohol Use Disorder not caused by the accident; MA did not determine the question of threshold injury as found that the injury was not caused by the accident; Held – psychological injuries including PTSD, caused by the accident, and were non-threshold injuries.

Decision date: 18 August 2023 | Panel Members: Member Terence Stern OAM, Dr Gerald Chew, and Dr Glen Smith | Injury module: Mental and Behavioural

Gilbey v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 403

Motor Accidents Compensation Act 1999; medical assessment of threshold injury by Medical Assessor (MA) Cameron and claimant’s review under section 7.26; claimant involved in 100kmph collision with car parked in breakdown lane on freeway; claimant front seat passenger sustaining significant seat belt bruising and soft tissue injuries to her chest and spine; claimant had pre-accident shoulder bursitis; scans after accident showed tears of the left labrum and a SLAP lesion; insurer asserted tears were not caused in the accident; Held – medical examination not necessary; Sydney Trains vs Batshon distinguished; MA given access to the imaging studies and compared pre and post-accident ultrasounds which showed tears in the labrum of the right and left shoulders; Kinchela vs NRMA and Briggs v NRMA (no 2) considered regarding test of causation; Panel satisfied high speed collision could have caused tears to shoulders; Panel satisfied the claimant did injure her shoulders in the accident; Panel found that the claimant sustained a partial thickness tear of the supraspinatus tendon and tears of the labrum which were the partial rupture of tendons and cartilage and therefore not threshold injuries; certificate of MA revoked.

Decision date: 21 August 2023 | Panel Members: Member Belinda Cassidy, Dr Michael Couch, and Dr Chris Oates | Injury module: Spine, Brain Injury and Upper Limb

Lang v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 404

Motor Accident Injuries Act 2017; this dispute is about whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 8 March 2021; claimant applied for review of Medical Assessor (MA) Harrington’s certificate dated 24 August 2022; MA certified claimant did not display radiculopathy in cervical and lumbar spine and shoulder injuries were soft tissue; scans and Panel re-examination demonstrated evidence of acute change with accident causing progression of lumbar spine herniation to annular tear; Held – the Panel was satisfied that the accident caused the lumbar spine injury that does not fit threshold injury definition under section 1.6; MA certificate revoked and new certificate issued.

Decision date: 21 August 2023 | Panel Members: Member Terence O'Riain, Dr Alan Home, and Dr Michael Couch | Injury module: Spine and Upper Limb

QBE Insurance (Australia) Limited v Zilic [2023] NSWPICMP 405

Motor Accidents Compensation Act 1999; The claimant suffered injury in a motor accident 25 October 2016; medical dispute under Part 3.4 about whether the motor accident caused psychological permanent impairment greater than 10%; Medical Assessor (MA) Mason diagnosed adjustment disorder with mixed anxiety and depressed mood, which was chronic and severe; medical review application based on MA assessing 19% permanent impairment from pain related conditions in breach of clause 1.215 Motor Accident Permanent Impairment Guidelines (Guidelines) and failed to consider evidence of existing psychiatric disorders; re-examined audio visually; Panel found that accident caused persistent somatic symptom disorder with predominant pain, which is not assessable under Guidelines; claimant’s high level functioning displayed before the accident did not support a symptomatic permanent impairment existing at the time of the accident; Held – Review Panel diagnosed persistent somatic symptom disorder with predominant pain; unable to apply the Permanent Impairment Rating Scale (PIRS) in accordance with the Guidelines’ clause 1.215; Panel could not attribute any psychological permanent impairment to the accident; permanent impairment is 0%; Review Panel revoked MA certificate and issued a new permanent impairment certificate.

Decision date: 22 August 2023 | Panel Members: Member Terence O'Riain, Dr Thomas Newlyn, and Dr Gerald Chew | Injury module: Mental and Behavioural

AAI Limited t/as AAMI v Oram [2023] NSWPICMP 406

Motor Accidents Compensation Act 1999; medical assessment of treatment by Medical Assessor (MA) Machart and insurer’s review under section 83; claimant injured in rear end collision in May 2017; insurer referred dispute about domestic assistance, general practitioner consultations, medication, physiotherapy, neurosurgical consultations, lumbar spine decompression and fusion, exercise program and gym membership and argued that treatment not related to the injuries caused in the accident and not reasonable and necessary in the circumstances; MA had allowed all treatment; issues of reliability of the claimant’s evidence and significant issue of causation; claimant had been involved in a significant accident in September 2005 injuring his neck and back; claimant said he recovered within a year or two and had no further treatment; records obtained by the insurer suggested this was not correct and that the claimant continued to complain of chronic pain until October 2012; issue about force of the accident and competing biomechanical experts; Held – claimant’s evidence unreliable due to poor memory and biomechanical reports of concern due to absence of photographs of damage to claimant’s vehicle; Panel satisfied claimant injured his neck and lower back in the accident and that the injuries were exacerbations of pre-existing conditions and degenerative changes; Panel found no treatment related to the accident; certificate of MA revoked.

Decision date: 22 August 2023 | Panel Members: Member Belinda Cassidy, Dr Margaret Gibson, and Dr Geoffrey Stubbs | Injury module: Treatment type: Domestic Assistance, Physiotherapy treatment, Surgery, GP Consultations, Medical Specialist Consultations, Gym/Exercise Program, and Medication - Prescription

Chimata v AAI Limited t/as AAMI [2023] NSWPICMP 407

Motor Accidents Compensation Act 1999; medical assessment of treatment dispute by Medical Assessor Shahzad and claimant’s review under section 63; claimant pedestrian, knocked down in Sydney central business district; Insurer referred disputes about past and future domestic assistance, future medication, general practitioner and pain specialist consultations; claimant alleged injuries to his head, neck, lower back, bladder, left and right leg and ankle and both shoulders; issues of consistency raised by the insurer and causation; Held – claimant made no complaint of left ankle, left shoulder, right hip or knee pain; these had resolved and required no further treatment; no ongoing bladder issues and therefore no further treatment; claimant sustained cervical, lumbar spine and right shoulder injuries which were still causing symptoms and required treatment; domestic assistance allowed in part, medication by way of simple analgesics allowed, one GP consultation per year allowed and no pain specialist consultations allowed; general discussion of principles and approach to the resolution of treatment disputes; certificate of MA revoked.

Decision date: 22 August 2023 | Panel Members: Member Belinda Cassidy, Dr Alan Home, and Dr Michael Couch | Injury module: Treatment type: Domestic Assistance, GP Consultations, Pain Management Program, and Medication – Prescription

Ly v QBE Insurance (Australia) Limited [2023] NSWPICMP 408

Motor Accident Injuries Act 2017; the claimant suffered injuries to her cervical spine, thoracic spine, lumbar spine, head, left shoulder and right hip; the claimant sought a determination that these injuries were non-threshold injuries; the matter came before Medical Assessor (MA) Cameron who found that all of the injuries were caused by the accident and that all of the injuries were threshold injuries; the claimant successfully sought a review of this decision which came before the Panel and which now makes its determination; the claimant relied on an ultrasound undertaken on 12 December 2019 of her left shoulder amongst other things which she says showed a partial thickness tear and that this followed contemporaneous complaints of a left shoulder injury after the accident; during the course of consideration of the claim by the Panel it was ascertained that the claimant used two names and that there were two sets of medical documentation for the same person; examination by MA Wan showed no evidence of a significant head injury, no evidence of cervical radiculopathy, no evidence of any injury to the thoracic spine; whilst the Panel was satisfied that the claimant could have sustained a soft tissue injury to her left shoulder she had left shoulder symptoms before the accident and an ultrasound of the left shoulder on 14 January 2010 showed a partial thickness tear of the supraspinatus and subdeltoid bursitis; when comparing the ultrasound on 14 January 2010 and of 12 December 2019 there are no significant changes but there were only similar findings; whilst the right hip could have been injured in the accident, on examination the hips were normal; Held – the Panel concluded that the claimant had suffered threshold injuries only and affirmed the decision of MA Cameron.

Decision date: 23 August 2023 | Panel Members: Member Alexander Bolton, Dr Tai-Tak Wan, and Dr Clive Kenna | Injury module: Spine, Brain Injury, Lower and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Smolovic [2023] NSWPICMP 409

Motor Accident Injuries Act 2017; the claimant suffered injury on 18 February 2021; the dispute related to causation of injury and whether any of the injuries suffered are not threshold injuries, injury to neck, back, both shoulders and both knees; claimant’s vehicle was struck from behind in a multi-vehicle motor accident; direct impacts to head, right shoulder and both knees; whether changes shown by diagnostic scanning of right shoulder and/or right knee are merely degenerative or likely accident-related; principals of causation; application of clinical judgment; Briggs v IAG Limited applied; Held – original certificate confirmed.

Decision date: 24 August 2023 | Panel Members: Member Gary Victor Patterson, Dr Margaret Gibson, and Dr Wing Chan | Injury module: Spine, Lower and Upper Limb

Insurance Australia Limited t/as NRMA Insurance v Le [2023] NSWPICMP 410

Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); on 7 October 2018 the claimant suffered injury in a high speed motor vehicle accident where car collided with a tree; the claimant was under the influence of drugs at the time of the accident; following the accident the claimant struck his head repeatedly on the ground; dispute as to causation of head injury; Medical Assessor (MA) Cameron found the following injuries were threshold injuries; lumbar spine; soft tissue injury; cervical spine; soft tissue injury; right shoulder; soft tissue injury, abdomen; soft tissue injury; head; mild traumatic brain injury was a non-threshold injury; Held – applying test of causation as per Briggs v IAG Limited T/as NRMA Insurance; Panel considered the accident was a more than negligible cause of the head injury, although not the sole cause; a traumatic brain injury even if it is mild affects the brain and is not a threshold injury; injuries to lumbar spine, cervical spine, right shoulder and abdomen soft tissue injures and therefore threshold injuries; Panel affirms certificate of MA.

Decision date: 24 August 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson, and Dr Tai-Tak Wan | Injury module: Spine, Brain Injury, Digestive System, and Upper Limb

Wardah v QBE Insurance (Australia) Limited [2023] NSWPICMP 411

Motor Accident Injuries Act 2017; the claimant suffered injury on 30 August 2019; the dispute related to the payment of an MRI scan and electrophysiological study estimated at $1500; claimant not re-examined; reference to section 42(4) of the Personal Injury Commission Act 2020; proportionality between the cost to the parties and the Commission and the importance and complexity of the matter; examination otherwise of no utility; MRI scan caused by accident as motor accident caused an aggravation of degenerative changes in lumbar spine; treatment acceptable medical procedure which is an appropriate diagnostic tool despite absence of neurological symptoms; modest cost; right upper limb electrophysiological studies appeared to be directed to right shoulder symptoms; tests not required for right shoulder symptoms; otherwise not satisfied of causal relationship between motor accident and study; Held – orders made for payment of expenses of MRI scan but not electrophysiological study; original assessment revoked.

Decision date: 24 August 2023 | Panel Members: Principal Member John Harris, Dr Michael Couch, and Dr Shane Moloney | Injury module: Treatment type: Radiological Investigations and Other

Moji v QBE Insurance (Australia) Limited [2023] NSWPICMP 412

Motor Accident Injuries Act 2017; the claimant was a pedestrian who suffered injury on 24 September 2021; the dispute related to whether he sustained threshold injuries; prior history of chronic back pain and surgery; principle issue whether claimant had radiculopathy within meaning of clause 5.8 of the Motor Accident Guidelines; complaints of pain not radiculopathy; Panel required to re-examine to determine issue; claimant failed to attend two medical examinations; failed to explain his non-attendance and did not respond to direction from Panel; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held ­­– application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.

Decision date: 25 August 2023 | Panel Members: Principal Member John Harris | Injury module: Spine, Upper and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Fayed [2023] NSWPICMP 413

Motor Accident Injuries Act 2017; the claimant suffered injury on 14 November 2021 in a side swipe collision; the dispute related to proposed treatment and care including future surgery; Medical Assessor (MA) found signs of radiculopathy and found proposed treatment both reasonable and necessary and caused by motor accident; previous finding by insurer that claimant had minor (now threshold) injuries only; Panel advised that application was “lacking in substance” and should be dismissed pursuant to section 54 of the Personal Injury Commission Act 2020; matter referred to decision maker with power to determine that issue; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; meaning of lacking in substance; The Owners Corporation of Strata Pan 4521 v Zouk applied; original MA had arguably found two signs of radiculopathy in the C6 distribution; finding in favour of claimant for treatment dispute would mean that she would need to be successful in establishing “recovery” or a non-threshold injury in other proceedings; present proceedings not lacking in substance merely because the claimant would need to take further proceedings to establish the liability of insurer to pay for treatment; Held – application to summarily dismiss review application rejected.

Decision date: 25 August 2023 | Panel Members: Principal Member John Harris | Injury module: Treatment type: Physiotherapy and Surgery

Workers Compensation Medical Appeal Panel Decisions

Wollongong City Council v Needham [2023] NSWPICMP 414

Matter referred for assessment of left elbow injury for impairment of the upper extremity after arthroplasty of the elbow, and assessment of upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination; no claim made for ulnar nerve injury which was assessed by Medical Assessor (MA); Held – MA made a demonstrable error in assessing impairment that was not part of the dispute identified by the parties; Medical Assessment Certificate revoked.

Decision date: 25 August 2023 | Panel Members: Member Carolyn Rimmer, Dr David Crocker, and Dr Doron Sher| Body system: Right upper and lower extremity, and Scarring/TEMSKI

Fisher v KPD Pty Ltd [2023] NSWPICMP 416

Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged error by the Medical Assessor in the application of a one-tenth deduction under section 323; the Appeal Panel was not satisfied as to error; Held – Medical Assessment Certificate confirmed.

Decision date: 28 August 2023 | Panel Members: Member Jane Peacock, Dr Michael Hong, and Dr Nicholas Glozier| Body system: Psychiatric/Psychological

Luck v Australian Health Management Group Pty Ltd [2023] NSWPICMP 417

Appeal against assessment 7% whole person impairment (WPI) for psychiatric injury on basis of deterioration, availability of additional relevant information, incorrect criteria and error; fresh evidence not admitted as had insufficient probative value; allegation of deterioration not supported by any medical evidence of an increase in the level of permanent impairment; no error of application of incorrect criteria in assessment of social and recreational activities; error in assessment of concentration, persistence and pace as Medical Assessor did not provide adequate reasons for assessment of class 2; Panel assessed class 3 for concentration, persistence and pace and 8% WPI; Held – Medical Assessment Certificate revoked.

Decision date: 28 August 2023 | Panel Members: Member Carolyn Rimmer, Dr John Baker, and Dr Graham Blom | Body system: Psychiatric/Psychological

Klemencz v Australian Workplace Services Pty Ltd [2023] NSWPICMP 419

Psychological injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, social and recreational activities; Held – the ratings in this class was open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed.

Decision date: 28 August 2023 | Panel Members: Member Jane Peacock, Dr Graham Blom, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Waite v State of New South Wales (Albury Wodonga Health) [2023] NSWPICMP 420

The appellant submitted that the Medical Assessor (MA) had erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the category of social functioning when there should have been a finding of a class 3 or 4; Panel found no evidence to support a class 3 or 4 finding; no error by the MA; Held – Medical Assessment Certificate confirmed.

Decision date: 28 August 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Graham Blom | Body system: Psychiatric/Psychological

Woolworths Group Limited v Mikhael [2023] NSWPICMP 421

Appeal against assessments of reproductive system and urinary system: whether Medical Assessor (MA) had complied with the requirement in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed 1 March 2021 (Guidelines) regarding objective neurological findings in both systems; whether MA had given adequate reasons; Held – MA had erred in relying on a lumbar scan that did not show objective evidence of spinal cord, cauda equina or bilateral nerve root disorder; chapter 4.26 of the Guidelines required the same for the reproductive system, and chapter 4.23 required the same objective evidence to establish a neurogenic bladder disorder; MA reasons inadequate to explain his assessment pursuant to chapter 7.8; Medical Assessment Certificate revoked and lesser impairment certified for impairment of urinary system.

Decision date: 29 August 2023 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Peter Heathcote | Body system: Urinary system, Reproductive System and Spine

Woolf v Venue Cafe Bar - Orange Pty Ltd [2023] NSWPICMP 422

Assessment of psychiatric injury; worker appealed assessments in five of the six Psychiatric Impairment Rating Scale (PIRS) categories; Held – Panel found no error or application of incorrect criteria in assessment of self-care and personal hygiene, social and recreational activities and travel; Panel satisfied error in assessment of concentration, persistence and pace and employability; worker re-examined; Medical Assessment Certificate revoked.

Decision date: 30 August 2023 | Panel Members: Member Carolyn Rimmer, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

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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