Legal Bulletin No. 129
This bulletin was issued on 22 September 2023
Issued 22 September 2023
Welcome to the one hundred and twenty ninth edition of the Personal Injury Commission’s Legal Bulletin. Please see here for details about the legal citations used for the Commission’s decisions. The decisions listed below are now available on AustLII and will be available shortly, on Jade and Lexis Nexis. Any legislative updates are provided at the base of the Bulletin.
Presidential Member Decision
Workers compensation; section 11A of the Workers Compensation Act 1987; whether error in determining the question of reasonableness; Irwin v Director-General of Education Compensation Court of NSW discussed; principles applicable to disturbing findings of fact on appeal; Raulston v Toll Pty Ltd discussed and applied; Held – the Member’s Certificate of Determination dated 10 January 2022 is confirmed.
Decision date: 7 September 2023 | Before: Deputy President Elizabeth Wood
Motor Accidents non-Presidential Member Decisions
QBE Insurance (Australia) Limited v Carne [2023] NSWPIC 458
Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; pedestrian struck by car; non-threshold injuries; liability admitted by insurer; no reduction for contributory negligence; offer of $175,000; claimant born 1928; Reece v Reece and Varga v Galea applied; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.
Decision date: 8 September 2023 | Member: Terence Stern OAM
QBE Insurance (Australia) Limited v MacFarlane [2023] NSWPIC 459
Motor Accident Injuries Act 2017; claim for damages for mental harm; claimant’s son fatally injured in a motor vehicle accident; claimant suffers from post-traumatic stress disorder and major depressive disorder; claimant is a 60-year-old pensioner entitled to damages for non-economic loss only; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved section 6.23 (2)(b).
Decision date: 11 September 2023 | Member: David Ford
AAI Limited t/as GIO v Downs [2023] NSWPIC 463
Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant sustained fracture of the T12 vertebral; retired insurance broker aged 76 years; claimant reported significant improvement; entitlement to non-economic loss only; claimant aware of rights to reasonable future treatment for the rest of his life; Held – proposed settlement within the range of likely potential damages if claim was to proceed to assessment; settlement just, fair and reasonable; settlement approved.
Decision date: 12 September 2023 | Member: Elyse White
Insurance Australia Limited t/as NRMA Insurance v Anthony [2023] NSWPIC 466
Motor Accident Injuries Act 2017; claim for damages for non-economic loss; section 6.23; claimant now 77 years of age; motorcycle rider struck by insured vehicle; multiple abrasions to hands, knees, elbows, right ankle and right foot, resolved; bruising to right leg and left ribs, resolved; mild concussion with dizziness, resolved; right shoulder injury requiring total shoulder replacement surgery; improvement to shoulder function and pain profile following surgery; claimant has resumed domestic activities and some activities on hobby farm; claimant’s quality of life continues to improve; Held – proposed settlement of $220,000 approved.
Decision date: 13 September 2023 | Member: Maurice Castagnet
Colig v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 470
Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); motor vehicle being driven by the claimant on the incorrect side of the road and as a consequence, collided head on with the motor vehicle being driven by the insured driver who was driving on the correct side of the road; no explanation as to why the claimant was driving on the incorrect side of the road and claimant has no memory of the accident; after the accident, the insured driver was found to have a blood alcohol reading of 0.168; determined insured driver owed a duty of care but contributory negligence on the part of the claimant assessed at 80%; claimant suffered serious fractures to his face, jaw, right wrist, sternum, ribs and toes; insurer conceded claimant’s whole person impairment exceeded the threshold; claimant is a security guard; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past economic loss.
Decision date: 14 September 2023 | Member: David Ford
Workers Compensation non-Presidential Member Decisions
Reynolds v Third Sector Australia Limited [2023] NSWPIC 462
Psychological injury; claim for weekly payments and medical expenses; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal; Held – finding that the applicant’s injury was predominantly caused by action with respect to performance appraisal; finding that action was reasonable; award for the respondent.
Decision date: 11 September 2023 | Member: Jill Toohey
Anderson v State of New South Wales (Central Coast Local Health District) [2023] NSWPIC 464
Claim for permanent impairment compensation as a result of accepted injury to left shoulder sustained during assault; consequential right shoulder and thoracic spine conditions, and scarring; and for primary psychiatric/psychological injury as result of assault or nature and conditions of employment; dispute as to consequential condition of right shoulder and psychiatric/psychological injury; applicant claimed that there was no dispute as to consequential condition of thoracic spine; consideration of Jones v Dunkel; Skates v Hills Industries Ltd; Kumar v Royal Comfort Bedding Pty Ltd; State Transit Authority of New South Wales v Fritzi Chemler; Held – award for respondent in respect of claim for consequential condition of right shoulder; applicant sustained primary psychiatric/psychological injury as result of assault; there is a dispute as to whether the applicant has sustained consequential condition of thoracic spine; matter remitted to President for referral to Medical Assessors for assessment of permanent impairment as a result of injury to the left upper extremity, thoracic spine, and scarring, and as a result of primary psychiatric/psychological injury.
Decision date: 12 September 2023 | Senior Member: Kerry Haddock
Perlidis v Brambles Security Services Ltd [2023] NSWPIC 467
Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 for injury sustained in the course of his employment with the respondent; the applicant claims permanent impairment compensation resulting from injury sustained on
3 August 1992 in the course of his employment with the respondent and the applicant also claims permanent impairment compensation resulting from injury sustained as a result of the nature and conditions of his employment with the respondent; Held – award for the respondent in respect of the applicant’s claim for permanent impairment resulting from injury sustained to his neck on
3 August 1992 in the course of his employment with the respondent; award for the respondent in respect of the applicant’s claim for permanent impairment resulting from injury sustained as a result of the nature and conditions of his employment with the respondent; the applicant’s claim for further permanent impairment resulting from injury sustained to his back, left leg at or above the knee and right leg at or above the knee with date of injury of 3 August 1992 is remitted to the President for referral to a Medical Assessment for assessment in accordance with the Table of Disabilities.
Decision date: 13 September 2023 | Member: Jacqueline Snell
Ali v Sydney Night Patrol & Inquiry Co Pty Ltd [2023] NSWPIC 468
Workers Compensation Act 1987; sections 4 and 11A(3); psychological injury disputed; section 11A(1) whether psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal; incapacity; Brines v Westgate Logistics Pty Ltd, AV v AW, Ariton Mitic v Rail Corporation of NSW, Attorney General’s Department v K, Stewart v NSW Police Service, Northern NSW Local Health Network v Heggie considered and applied; Held – the applicant has sustained a psychological injury arising out of or in the course of his employment on the deemed date of 30 July 2022; the applicant’s employment was the main contributing factor to the psychological injury; the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal; the applicant has had no current work capacity from 24 October 2022 to date and has no current work capacity.
Decision date: 13 September 2023 | Member: John Turner
Shi v Transpace Pty Ltd & Ors [2023] NSWPIC 469
Claim for lump sum death benefit and interest; liability accepted; apportionment of lump sum and claims for interest; consideration of TNT Group 4 Pty Ltd v Halioris, Wratten v Kirkpatrick, Vukicevic v Simpson, Chant v Ready Mixed Concrete Industries Ltd, Haidary v Wandella Pet Foods PtyLtd, Kaur v Thales Underwater Systems Pty Ltd, and McGrath v P.M Electric Pty Limited; Held – applicant and fourth respondent dependent on worker; second respondent partly dependent on worker; lump sum death benefit apportioned as to 65% to applicant; 8% to second respondent; 27% to fourth respondent; interest awarded from dates claims duly made at rate 2% above relevant Reserve Bank of Australia cash rate; award for funds management in respect of amount apportioned to fourth respondent.
Decision date: 13 September 2023 | Senior Member: Kerry Haddock
Motor Accidents Medical Review Panel Decisions
Taseski v AAI Limited t/as GIO [2023] NSWPICMP 432
Claimant was a pedestrian injured on 28 June 2018 when the insured driver lost control of her car which brushed past the claimant who narrowly avoided serious physical injury; subsequently the claimant was discharged from the police force with post-traumatic stress disorder and right shoulder impingement and some other physical injuries; the Medical Assessor (MA) diagnosed a bipolar affective disorder but found that the claimant’s symptoms are due to a mood disorder which was unrelated to the accident; the MA assessed 0% whole person impairment (WPI); claimant was examined by the Panel who confirmed the claimant had symptoms from time to time consistent with post-traumatic stress disorder; the Panel was satisfied that the claimant developed bipolar disorder with a chronic manic state as a direct result of the accident; Held – the Panel assessed the claimant as having a whole person impairment of 8%.
Decision date: 1 September 2023 | Panel Members: Member Alexander Bolton, Dr Paul Friend, and Dr Samuel Lim | Injury module: Mental and Behavioural
Notaras v Insurance Australia Limited t/as NRMA Insurance (No 1 and 2) [2023] NSWPICMP 433
Motor Accident Injuries Act 2017; the claimant suffered injury on 17 July 2018; the dispute related to the payment of fusion surgery surgical to the cervical spine and the assessment of permanent impairment; claimant not re-examined; motor accident aggravation of degenerative changes to neck with ongoing symptoms; reason for surgery included treatment of discogenic neck pain; common law test of causation; AAI Ltd v Phillips applied; claimant did not establish that surgery was “necessary”; clear lack of radiculopathy; chronic pain syndrome counter intuitive to undergoing extensive surgery; satisfied that surgery was “reasonable”; surgery designed to treat neck pain; insurer’s submission that claimant must establish that treatment “reasonable and necessary” to satisfy causation of impairment rejected; contrary to causation test in section 4.11 clause 6.5 to 6.7 of the Guidelines; insurer’s submission on “purpose” rejected; Dhupar v AAI Ltd referred to; Held – claimant assessed at greater than 10% permanent impairment; claimant did not establish that surgery was “necessary”.
Decision date: 1 September 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Sophia Lahz | Injury module: Spine, Nervous System (neurological), Facial Injury and Impairment, Brain Injury, Upper Limb and Skin; Treatment Type: Surgery
Insurance Australia Limited t/as NRMA Insurance v Wilson [2023] NSWPICMP 436
Motor Accident Injuries Act 2017; insured vehicle collided into house whilst claimant sleeping; claimant inhaled dust particles including asbestos; claimant developed various symptoms associated with dust inhalation held to be threshold injury; original Medical Assessor found possibility of developing an asbestos related disease was a non-threshold injury; short amount of asbestos exposure; claimant unlikely to develop an asbestos related disease; meaning of “injury” in section 1.4; Insurance Australia Ltd v Varghese applied; Military Rehabilitation & Compensation Commission v May applied; possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered minor injuries; original assessment revoked.
Decision date: 5 September 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Sylvester Fernandes | Injury module: Ear, Nose, Throat and Related Structures
Insurance Australia Limited t/as NRMA Insurance v Varghese [2023] NSWPICMP 437
Motor Accident Injuries Act 2017; insured vehicle collided into house whilst claimant sleeping; claimant inhaled dust particles including asbestos; claimant developed various symptoms associated with dust inhalation held to be threshold injury; original Medical Assessor found possibility of developing an asbestos related disease was a non-threshold injury; short amount of asbestos exposure; claimant unlikely to develop an asbestos related disease; plain meaning of injury in section 1.4 means a physiological change; Military Rehabilitation & Compensation Commission v May referred to; the possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered threshold injuries; original assessment revoked.
Decision date: 5 September 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Sylvester Fernandes | Injury module: Ear, Nose, Throat and Related Structures
Gilin v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 438
Motor Accident Injuries Act 2017; insured vehicle collided into house whilst claimant sleeping; claimant inhaled dust particles including asbestos; claimant developed various symptoms associated with dust inhalation held to be threshold injury; short amount of asbestos exposure; claimant unlikely to develop an asbestos related disease; meaning of “injury” in section 1.4; Insurance Australia Ltd v Varghese applied; Military Rehabilitation & Compensation Commission v May applied; possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered threshold injuries; original assessment confirmed.
Decision date: 5 September 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Sylvester Fernandes | Injury module: Ear, Nose, Throat and Related Structures
Kamara v Allianz Australia Insurance Limited [2023] NSWPICMP 439
Motor Accident Injuries Act 2017; the claimant suffered injury on 23 August 2020; claimant’s vehicle rear ended pushing her vehicle into the car in front; assessment of permanent impairment of psychological condition; claimant’s psychological conditions diagnosed under the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD) rather than Diagnostic & Statistical Manual of Mental Disorders (DSM) pursuant to clause 6.213 of the Guidelines; evidence of prior psychological symptoms; pre-existing condition assessed at 0%; unrelated ectopic procedure immediately following motor accident; psychological effects of that procedure not related to motor accident; Held – claimant assessed at 7% permanent impairment due to psychological injury; medical assessment confirmed.
Decision date: 6 September 2023 | Panel Members: Principal Member John Harris, Dr Michael Hong, and Dr John Baker | Injury module: Psychiatric/Psychological
Wells v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 440
Motor Accident Injuries Act 2017; the claimant suffered injury on 4 October 2019; claimant riding bike and collided with insured vehicle falling to the ground; the dispute concerned the assessment of permanent impairment; repeated Glasgow Coma Scale (GCS) scores of 14 following motor accident with brief loss of consciousness; neuropsychological testing by both Dr Falcon and Medical Assessor Wan showed less than optimal performance; claimant sustained closed head injury which recovered; other body parts examined; no assessable impairment; Held – claimant assessed at 0% permanent impairment; medical assessment confirmed.
Decision date: 6 September 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon, and Dr Tai-Tak Wan | Injury module: Upper and Lower Limb, Spine, and Brain Injury
Bchai v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 442
Motor Accident Injuries Act 2017; whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 4 January 2019; claimant applied for review of Medical Assessor (MA) McGrath’s certificate dated 5 July 2022; MA certified the evidence did not indicate that the 2019 accident caused an injury to nerves or a partial rupture of tendons or ligaments; lumbar spine surgery was for spinal stenosis which existed before the 2019 accident; 2019 accident caused a soft tissue lumbar spine injury; Panel did not re-examine; treating neurologist’s reports demonstrated although there was evidence of lumbar spine changes before the accident the 2019 accident caused permanent progression of lumbar spine stenosis causing radiculopathy and making surgery necessary; Held – the Panel was satisfied that the accident caused the lumbar spine injury that was not a threshold injury as defined by section 1.6; MA certificate revoked and new certificate issued.
Decision date: 7 September 2023 | Panel Members: Member Terence O'Riain, Dr Neil Berry, and Dr Shane Moloney | Injury module: Spine
Workers Compensation Medical Appeal Panel Decisions
Zucca v Frasers Property Australia [2023] NSWPICMP 441
Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment arising from a psychological injury; Psychiatric Impairment Rating Scale (PIRS); Jenkins v Ambulance Service of NSW, Ferguson v State of NSW referred to; characterisation of activities; Ballas v Department of Education applied; assessments open to Medical Assessor in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed.
Decision date: 6 September 2023 | Panel Members: Member Catherine McDonald, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychiatric/Psychological
Welsh v Hanlon Windows (Australia) Pty Ltd [2023] NSWPICMP 444
Worker alleged error in assessment of cervical spine by reason of Medical Assessor’s failure to explicitly address the presence of non-verifiable radiculopathy or guarding; Table 15-5 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); in the discrete circumstances of this case where there were complaints of shoulder pain error established; Held – after reassessment Medical Assessment Certificate (MAC) revoked and new MAC issued.
Decision date: 7 September 2023 | Panel Members: Member Paul Sweeney, Dr Drew Dixon, and Dr Christopher Oates | Body system: Right and Left Upper Extremity, and Spine
Kingston v Kingston Landformers Pty Ltd [2023] NSWPICMP 445
Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Panel agreed there was no evidence that the appellant had any problems with the left upper extremity since the original dislocation when he was a “youngster”; Held – Medical Assessment Certificate revoked.
Decision date: 12 September 2023 | Panel Members: Member Deborah Moore, Dr Drew Dixon, and Dr Alan Home | Body system: Right and Left Upper Extremity, and Scarring
Rahmani v Velocity Frequent Flyer Pty Ltd [2023] NSWPICMP 447
The appellant submitted that the Medical Assessor had erred in several of the Psychiatric Impairment Rating Scale (PIRS) categories; Panel found no error except in the category of social and recreational activities; Held – Medical Assessment Certificate revoked.
Decision date: 13 September 2023 | Panel Members: Member Deborah Moore, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological
Motor Accidents Merit Review Decisions
Patel v AAI Limited t/as AAMI [2023] NSWPICMR 46
Motor Accident Injuries Act 2017; pre accident weekly earnings (PAWE); dispute over calculation of the claimant’s PAWE; whether a pay rise can be included when calculating earnings; two decisions of the Fair Work Commission on 4 November 2022 and 21 February 2023 awarded the claimant a 15% pay rise; the pay rise commenced ten days after the date of the claimants motor vehicle accident; claimant’s action was sufficient to satisfy the definition in sub-clause 4(3) and resulted in the claimant being entitled to earn more on a weekly basis; Towers v GIO referred to; Held – remitted to the insurer for reconsideration and recalculation of the claimant’s PAWE to include the 15 % pay rise; claimant’s PAWE to be calculated in accordance with sub-clauses 4(2)(b) and 4(3) of Schedule 1.
Decision date: 8 September 2023 | Merit Reviewer: Ray Plibersek
Karklins v QBE Insurance (Australia) Limited [2023] NSWPICMR 47
Motor Accident Injuries Act 2017 (MAI Act); on the papers; correct and preferable; no fault accident; driver deemed at fault; insurer accepted liability for statutory benefits to continue after
26 weeks; catastrophic injuries; pending damages claim; under schedule 2(1)(b); statutory benefits; statutory weekly payments; section 3.12; maximum period for statutory benefits entitlement; section 5.4 no entitlement to recover damages where no fault accident; NSW Parliament intent; Minister’s speech; promote purpose of the Act. Held - NSW Parliament intention to set up statutory benefits scheme with time limits on benefits; limited to 104 weeks unless there is pending damages claim; MAI Act bars driver’s entitlement to damages in no fault accident; reviewable decision affirmed.
Decision date: 8 September 2023 | Merit Reviewer: 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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