Legal Bulletin No. 128
This bulletin was issued on 15 September 2023
Issued 15 September 2023
Welcome to the one hundred and twenty eighth 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
Magliano v Workers Compensation Nominal Insurer [2023] NSWPICPD 51
Workers compensation; whether the monetary threshold pursuant to section 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied; Fletchers International Exports Pty Ltd v Regan and Sheridan v Coles Supermarkets Australia Pty Ltd applied; Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd distinguished; section 145 of the Workers Compensation Act 1987; whether the Commission has the power pursuant to section 145 to determine whether the injured worker suffered a different injury not previously claimed in matters involving reimbursement to the Workers Compensation Nominal Insurer; section 65, 105 and 260 of the 1998 Act and the Workers Compensation Guidelines 2021; applicable principles in disturbing a primary decision-maker’s exercise of discretion; Micallef v ICI Australia Operations Pty Ltd applied; adequacy of reasons; section 294(2) of the 1998 Act; rule 78 of the Personal Injury Commission Rules 2021; Wingfoot Australia Partners Pty Ltd v Kocak; Pollard v RRR Corporation Pty Ltd applied; corroboration of evidence; Devries v Australian National Railways Commission applied; Held – the Member’s Certificate of Determination dated 30 June 2022 is confirmed.
Decision date: 28 August 2023 | Before: Deputy President Wood
Workers compensation; remittal from the Court of Appeal; section 353 of the Workplace Injury Management and Workers Compensation Act 1998 constitutional law; federal jurisdiction; Held – the Orders of the Commission dated 18 January 2023 in Kanajenahalli No 2 are revoked; the hearing of the appeal from Kanajenahalli No 1 is remitted to Deputy President Wood to be heard and determined in accordance with the Court of Appeal decision in Kanajenahalli No 3.
Decision date: 31 August 2023 | Before: President Judge Phillips
Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53
Workers compensation; whether injuries with 0% permanent impairment can be included in a referral to a medical assessor; medical assessment for the purpose of section 39 of the Workers Compensation Act 1987; principles regarding a ‘claim’ and ‘medical dispute’ considered; section 319 of the Workplace Injury Management and Workers Compensation Act 1998; Shankar v Ceva Logistics (Australia) Pty Ltd discussed; Skates v Hills Industries Ltd applied; Held – the Certificate of Determination dated 25 October 2022 is confirmed.
Decision date: 31 August 2023 | Before: President Judge Phillips
Lee v Toll Transport Pty Ltd [2023] NSWPICPD 54
Workers compensation; whether events or conduct that did actually occur in the workplace were relevant to the assessment of whether the appellant sustained a compensable psychological injury; whether the appellant’s perceptions in relation to such events or conduct were relevant to and/or taken into account; whether errors found infected the ultimate conclusion or were operative errors as described in Workers Compensation Nominal Insurer v Al Othmani and Akora Holdings Pty Limited v Ljubicic; Held – the Certificate of Determination dated 2 May 2022 is revoked; the matter is remitted for re-determination afresh by a different member.
Decision date: 1 September 2023 | Before: Acting Deputy President Michael Perry
Blacktown City Council v Brassington [2023] NSWPICPD 55
Workers compensation; injury pursuant to section 4(b)(ii) of the Workers Compensation Act 1987; injury can have multiple causes; Murphy v Allity Management Services Pty Ltd applied; adequacy of reasons; reasons must be read as a whole; Beale v Government Insurance Office (NSW) applied; Held – The Member’s Certificate of Determination dated 19 September 2022 is confirmed.
Decision date: 6 September 2023| Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
Foroosh v QBE Insurance (Australia) Limited [2023] NSWPIC 435
Motor Accident Injuries Act 2017; claims assessment; damages; injury; passenger; never worked in Australia since 2012; trained in retail and security; had not demonstrated desire to work before accident; symptomatic lumbar spine injury before accident; low chance of employment before accident; nil past loss of earnings; accident caused future loss of earning capacity; accident linked spine lumbar, spine aggravation and psychological condition with neck and shoulder condition; now unemployable; residual earning capacity lost; most likely future circumstances evidence; legal costs agreed; Malec v JC Hutton, Husher v Husher, Wallace v Kam, and Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) considered; Held – conditions before accident meant employability already marginal; buffer appropriate to deal with loss of earning capacity at $85,000.
Decision date: 25 August 2023 | Member: Terence O'Riain
Insurance Australia Limited t/as NRMA Insurance v Schranz [2023] NSWPIC 437
Motor Accident Injuries Act 2017; 89 -year-old female, passenger in motor vehicle; accident in a car park when vehicle accidentally drove through the boom gate, through a glass wall into premises of a car wash; claimant sustained a non-displaced fracture through the C2 vertebra; subsequent pain and restriction of movement of cervical spine; claimant is retired; surgery not recommended; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).
Decision date: 1 September 2023 | Member: David Ford
Richardson v Allianz Australia Insurance Limited [2023] NSWPIC 454
Motor Accident Injuries Act 2017; whether the motor accident on the M7 at Horsley Park on 2 December 2020 was caused wholly or mostly by the fault of the claimant for the purposes of section 3.11 and section 3.28; factual dispute about how accident occurred; expert opinions; Mamo v Surace, Vairy v Wyong Shire Council, Manley v Alexander, Boateng v Dharamdas, Podrebersek v Australian Iron & Steel Pty Ltd, Insurance Australia Limited t/as NRMA v Richards, AAI Ltd v Moon, Ho v Professional Services Review Committee No 295, and San v Rumble (No 2) applied; Held – the accident was caused by the fault of both drivers; the contributory negligence of the claimant in relation to the motor accident was greater than 61%; for the purposes of section 3.11 and section 3.28 the accident was caused mostly by the fault of the claimant, cost orders made under section 8.10(4)(b) and section 8.3(4).
Decision date: 7 September 2023 | Senior Member: Brett Williams
Workers Compensation non-Presidential Member Decisions
Hawkins v Active Vac Pty Ltd ATF the Active Vac Trust [2023] NSWPIC 436
Workers Compensation Act 1987; claim for injuries to the right shoulder and neck, together with a consequential condition to the left shoulder alleged to result from the right shoulder injury; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant sustained a consequential injury to his left shoulder resulting from the accepted injury which he sustained on 15 July 2020; Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Drca v KAB Seating Systems Pty Ltd considered; Held – the applicant has sustained a consequential injury to his left shoulder as a result of the injury which he sustained on 15 July 2020; the determination of the applicant’s whole person impairment as a result of the injury will be remitted to the President for referral to a Medical Assessor (in relation to the body systems/parts: cervical spine, right upper extremity (shoulder), and left upper extremity (shoulder).
Decision date: 31 August 2023 | Member: Gaius Whiffin
Judge v Workforce International (Office Services) Pty Ltd [2023] NSWPIC 440
Workers Compensation Act 1987; claim for a primary psychological injury on 12 November 2018 and a secondary or consequential physical injury to the applicant’s forearms; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant is able to aggregate both his physical and psychological impairments, despite section 65A(4), in order for his entitlement pursuant to section 66 in relation to his 12 November 2018 injury to be determined; BIM v Judicial Commission of NSW, Tagicaki v Everwilling Cranes Pty Limited, Bouchmouni v Bakhos Matta t/as Western Red Services, Department of Juvenile Justice v Edmed, Warwar v Speedy Courier (Australia) Pty Limited, Certain Lloyd’s Underwriters subscribing to contract no IH00AAQS v Cross, Project Blue Sky Inc v Australian Broadcasting Authority, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Ozcan v Macarthur Disability Services Limited, NSW Police Service v Snape, Abu-Ali v Martin-Brower Australia Pty Limited, Bell v The Mining Pty Limited considered; Held – the applicant is unable to aggregate the impairment found in the Medical Assessment Certificate (MAC) of Dr Shen dated 28 April 2023 with the impairment found in the MAC of Dr Burns dated 28 April 2023, due to the operation of section 65A(4) of the Act, in order for his entitlement pursuant to section 66 of the Act in relation to his 12 November 2018 injury to be determined; award in favour of the applicant pursuant to section 66 in accordance with only the MAC of Dr Shen dated 28 April 2023.
Decision date: 1 September 2023 | Member: Gaius Whiffin
Roach v Teldraw Pty Ltd [2023] NSWPIC 445
Workers Compensation Act 1987; accepted psychological injury; claim for permanent impairment; applicant assessed by Medical Assessor as having 9% whole person impairment; application for reconsideration of Certificate of Determination; applicant claimed deterioration in psychological condition since the Medical Assessment Certificate; consideration of principles in Samuel v Sebel Furniture Limited; whether discretion in section 57(1) should be exercised; whether new evidence that could not with reasonable diligence have been obtained at the time of the determination; Held – application refused.
Decision date: 4 September 2023 | Member: Jill Toohey
Ali v Form Group NSW Pty Ltd [2023] NSWPIC 446
Claim for finding of consequential injury in the applicant’s upper and lower intestinal tract; Held – the applicant has sustained a consequential injury to his upper and lower intestinal tracts as a result of the medication he has been prescribed and has ingested for pain arising from the injury he sustained in the employment of the respondent on 21 June 2021.
Decision date: 4 September 2023 | Member: Lea Drake
Garthon v Specialized Environmental Services Pty Ltd t/as Trent Garthon Plumbing [2023] NSWPIC 447
Psychological injury; claim for weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) as well as medical expenses pursuant to section 60; applicant alleged that he sustained psychological injury due to nature and conditions of employment; whether the applicant is a “worker”; whether the applicant is prevented from bringing the claim and recovering compensation pursuant to sections 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); date of injury sections 15 and 16 of the 1987 Act; whether the applicant sustained an injury pursuant to section 4(b) of the 1987 Act; main contributing factor; incapacity; weekly benefits; sections 36 and 37 of the 1987 Act; Rules 6 and 68 Personal Injury Commission Rules 2021 (the Rules); sections 3 and 42 Personal Injury Commission Act 2020 (PIC Act); pre-injury average weekly earnings; clause 2 schedule 3 of the 1987 Act; whether past medical expenses reasonably necessary as a result of injury; section 60 of the 1987 Act; Lee v Lee’s Air Farming; Harris v Cudgegong Soaring Pty Limited; Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance; P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonson, GIO Workers Compensation Ltd v GIO General Ltd, Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd, Gow v Patrick Stevedores No 2 Pty Limited, AV v AW, Ariton Mitic v Rail Corporation of NSW, Cronje v Leighton Contractors Pty Ltd considered and applied; Held – that the applicant is a “worker” for the purposes of the workers compensation legislation; that the applicant is not prevented by sections 254 and/or 261 of the 1998 Act from bringing this claim or recovering compensation; that the applicant has sustained a psychological injury arising out of or in the course of his employment with the respondent; that the applicant’s employment was the main contributing factor to the psychological injury; that the applicant suffered from no incapacity for work between 1 July 2019 and 31 October 2020; that the applicant was partially incapacitated for work from 1 November 2020 to 30 June 2021.
Decision date: 5 September 2023 | Member: John Turner
Brooker v Taylor Construction Group Pty Ltd [2023] NSWPIC 448
Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of total right shoulder replacement surgery and other medical expenses for treatment of the right shoulder; consideration of the nature of the injury sustained by the worker and reference to Australian Conveyor Engineering Pty Ltd v Mecha Engineering P/L; whether the effects of an aggravation of an underlying arthritic condition caused by the injury have resolved; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – worker sustained an injury to the right shoulder as defined by section 4(a); the effects of that injury continue; the proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5) and order that the respondent pay the applicant’s reasonably necessary medical expenses for treatment of the right shoulder.
Decision date: 5 September 2023 | Member: John Isaksen
Yazbeck v Clarence House Corporation Pty Ltd [2023] NSWPIC 450
Claim for weekly compensation at a higher rate; unexplained failure of applicant to appear at conciliation conference and arbitration hearing; matter not ready to proceed; Held – proceedings dismissed for want of due despatch pursuant to rule 77(a) of the Personal Injury Commission Rules 2021 and section 54(c) of the Personal Injury Commission Act 2020.
Decision date: 5 September 2023 | Member: Rachel Homan
Woof v Yahweh Care Ptd Ltd [2023] NSWPIC 453
Workers Compensation Act 1987; claim for treatment expenses for left wrist condition; accepted knee injury; subsequent fall from a ladder at home in which wrist fractured; whether wrist condition requiring treatment “resulted from” the accepted knee injury; whether injury would have caused the knee to give way; Held – the condition at the applicant’s left wrist resulted from the injury; general order for the respondent to pay section 60 expenses in respect of the left wrist condition.
Decision date: 6 September 2023 | Member: Rachel Homan
Workers Compensation Medical Appeal Panel Decisions
CCA v Koskela Pty Ltd [2023] NSWPICMP 418
Workplace Injury Management and Workers Compensation Act 1998; appellant suffered injury to lumbar spine and consequential condition to urinary and reproductive system; approved Medical Specialist certified in Medical Assessment Certificate (MAC) that was issued on 25 February 2020 that appellant had 7% WPI relating to his lumbar spine and 0% WPI relating to his consequential condition; appellant subsequently had L3/4 anterior body fusion; parties agreed that grounds for appeal provided in section 327(3)(a) & (b) established; Held – MAC revoked.
Decision date: 28 August 2023 | Panel Members: Member Marshal Douglas, Dr Chris Oates, and Dr Neil Berry | Body system: Spine, Urinary system, Reproductive System and Scarring
Hussaini v Aust Superior Painting Pty Ltd [2023] NSWPICMP 424
Appellant referred for assessment for permanent impairment from injury to lumbar spine and consequential conditions of upper and lower digestive tracts; appellant contended Medical Assessor erred with respect to assessment of permanent impairment relating to upper and lower digestive tracts and applied incorrect correct criteria in making assessment; Appeal Panel disagreed; Held – Medical Assessment Certificate confirmed.
Decision date: 31 August 2023 | Panel Members: Member Marshal Douglas, Dr Mark Burns, and Dr Michael Long | Body system: Spine and Digestive System
Catterall v State of New South Wales (NSW Police Force) [2023] NSWPICMP 425
Workplace Injury Management and Workers Compensation Act 1998; appellant suffered injuries to her right upper extremity (elbow, wrist and thumb) and left upper extremity (wrist and thumb) due to a specific task appellant did in her employment over the course of years; appellant had bilateral trapeziectomies; the Medical Assessor (MA) assessed the appellant’s permanent impairment by reference to restricted range of movement only and made a deduction of 50% under section 323(1)for the proportion of permanent impairment due to a pre-existing degenerative condition; whether the MA ought to have included in his assessment a rating under Table 16-27 of American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) for the trapeziectomies; whether the MA erred by making a deduction of 50% under section 323(1); Appeal Panel held the MA erred by not including a rating under Table 16-27 as the impairment the appellant had from the trapeziectomies was different from her impairment due to restricted range of motion; Appeal Panel held that the relevant date at which to determine what the appellant’s pre-existing condition was the date she commenced the activity that resulted in her injury not the date of her injury; the Appeal Panel held that at that date the appellant’s pre-existing degenerative condition was minimal; Appeal Panel held it would be too difficult to determine the proportion to which the appellant’s permanent impairment was due to that pre-existing condition and the MA erred by not assuming, in accordance with section 323(2), that the deductible proportion for the purposes of section 323(1) is 10% as that assumption was not at odds with the evidence; Held – Medical Assessment Certificate revoked.
Decision date: 1 September 2023 | Panel Members: Member Marshal Douglas, Dr Gregory McGroder, and Dr John Brian Stephenson | Body system: Right Upper Extremity and Left Upper Extremity
Headon v Tasco Carriers Pty Ltd [2023] NSWPICMP 426
Workplace Injury Management and Workers Compensation Act 1998; appellant suffered an injury of a compressed fracture of the T5 vertebra; appellant had an undiagnosed pre-existing plasmacytoma of the T5 vertebra which was treated after injury and either eliminated or substantially reduced; Medical Assessor (MA) made a deduction of 50% under section 323(1) for the proportion of the appellant’s permanent impairment that he considered was due to the plasmacytoma; whether the MA erred by doing so; Appeal Panel held that the MA adopted the wrong approach by focusing on the role the plasmacytoma had in the occurrence of injury rather than the contribution it makes to the appellant’s current impairment; Held – Medical Assessment Certificate revoked.
Decision date: 4 September 2023 | Panel Members: Member Marshal Douglas, Dr Margaret Gibson, and Dr Drew Dixon | Body system: Spine
Johnson v Secretary, Department of Education [2023] NSWPICMP 427
Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment for self-care and personal hygiene; Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; reassessment under the Psychiatric Impairment Rating Scale (PIRS); section 323 deduction; worker argued that Medical Assessor should have made assessment under PIRS of impairment before injury; Marks v Secretary, Department of Communities and Justice (No 2) and Secretary, Department of Communities and Justice v Lewandowski discussed; one-tenth deduction was appropriate; Held – Medical Assessment Certificate revoked.
Decision date: 4 September 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychiatric/Psychological
Licina v Secretary, Department of Communities and Justice [2023] NSWPICMP 428
Workplace Injury Management and Workers Compensation Act 1998; appeal against finding of 8% for ankle and nerve injury; whether Medical Assessor (MA) had failed to consider evidence; whether MA should have considered complex regional pain syndrome (CRPS); whether MA had erred in assessment of scarring; whether section 324 power should have been exercised; whether reasons adequate; whether appellant entitled to lodge further submissions; Held – appeal dismissed; observations on policy regarding multiple submissions being lodged; Practice Direction 16(12) considered; regulation 128(1) Personal Injury Commission Rules considered; section 42 of the Personal Injury Commission Act 2020 considered; recommendation that President’s delegate reject such multiple submissions as inimical to proper administration of the work of Appeal Panels; MA presumed to have read and considered material before him/her; Jones v Registrar, Bojko v ICM Property Service Pty Ltd considered and applied; CRPS excluded from referral by agreement; scarring had not been referred to the MA: section 324 submission unexplained and incomprehensible; reasons detailed and adequate; Medical Assessment Certificate confirmed.
Decision date: 4 September 2023 | Panel Members: Member John Wynyard, Dr Drew Dixon, and Dr Tommasino Mastroianni | Body system: Left Lower Extremity
Curry v Trustees of the Roman Catholic Church for the Diocese of Bathurst [2023] NSWPICMP 429
Appeal by worker against Medical Assessment Certificate (MAC) in which there was a finding by the Medical Assessor (MA) that the appellant had sustained 8% whole person impairment (WPI) as a result of psychological injury; the appellant claimed errors on the part of the MA in respect of self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability; The Appeal Panel found error and the appellant was re-examined by a member of the Panel, whose report was accepted by the Panel; finding that the appellant had sustained 24% WPI as a result of the psychological injury from which he suffered; Held – MAC revoked and new MAC issued.
Decision date: 5 September 2023 | Panel Members: Member Brett Batchelor, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychiatric/Psychological
Motor Accidents Merit Review Decision
Cui v AAI Limited t/as AAMI [2023] NSWPICMR 45
Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under division 3.3; dispute about pre-accident weekly earnings (PAWE); when first began to earn continuously; schedule 1, clause 4(2)(a); division 6.6; veracity of evidence; credibility; duty of disclosure and to act honestly and not mislead; sections 6.3 and 6.24; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is dismissed.
Decision date: 4 September 2023 | Merit Reviewer: Katherine Ruschen
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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