Legal Bulletin No. 135

Issued 3 November 2023

Welcome to the one hundred and thirty fifth 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.

Supreme Court Decisions

Shaw v Insurance Australia Group Limited t/as NRMA Insurance [2023] NSWSC 1273

Administrative law; certiorari; medical assessment; gatekeeper; reasonably suspect material error; agreement between parties as to compression of disc; according with only evidence; methodology error not, without more, reasonable basis for error in assessment; delegate to President answered wrong question; Held – decision of the delegate of the President quashed; application for review remitted to the President.

Decision date: 27 October 2023 | Before: Rothman J

Ibrahim v Sellers Fabrics Pty Ltd [2023] NSWSC 1320

Judicial review; whole person impairment; Type 2 diabetes; pre-existing abnormality or condition; genetic predisposition or susceptibility; deduction; ground of review constituting an error of law; Held – decision of the Appeal Panel is set aside; referral to the President.

Decision date: 3 November 2023 | Before: Harrison AsJ

Presidential Member Decision

Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another [2023] NSWPICPD 65

Workers compensation; ‘disease’ provisions, application of section 15(1)(a) of the Workers Compensation Act 1987 to fix a date of injury; GIO Workers Compensation (NSW) Ltd v GIO General Ltd, P&O Berkeley Challenge Pty Ltd v Alfonzo, Stone v Stannard Brothers Launch Services Pty Ltd, Inghams Enterprises Pty Ltd v Thoroughgood; alleged determination of a matter outside the submissions; application of Seltsam Pty Ltd v Ghaleb; alleged error going to factual finding of ‘suitable employment’; application of Wollongong Nursing Home Pty Ltd v Dewar; whether weekly payments during a period of notice are payments of compensation; section 80 of the Workplace Injury Management and Workers Compensation Act 1998; Held – the Certificate of Determination dated 10 November 2022 is confirmed.

Decision date: 26 October 2023 | Before: Deputy President Michael Snell

Motor Accidents non-Presidential Member Decisions

Hamid v Insurance Australia Ltd t/as NRMA Insurance [2023] NSWPIC 157

Motor Accident Injuries Act 2017; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; the claimant attempted to make a U-turn at an intersection when his vehicle was struck by the insured motor vehicle; the insured driver was driving his vehicle in excess of the applicable speed limit; the claimant failed to look in his rear view mirror prior to attempting to execute the U-turn; Held – the motor accident was not caused wholly by the fault of the claimant; the contributory negligence of the claimant considered to be in excess of 61% and accordingly, the motor accident was caused mostly by the fault of the injured person.

Decision date: 6 April 2023 | Member: David Ford

AAI Ltd t/as GIO v Axiotis [2023] NSWPIC 223

Motor Accident Injuries Act 2017; 85-year-old female pedestrian struck by motor vehicle in the driveway of her home; sustained serious to left tibia and left ankle; complications after surgery which also caused gradual progression of pre-existing dementia; whole person impairment assessed at 37%; claimant is a pensioner entitled to damages for non-economic loss only; Held – the proposed settlement is just ,fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 12 May 2023 | Member: David Ford

Salmon v AAI Ltd t/as GIO [2023] NSWPIC 406

Motor Accidents Compensation Act 1999; assessment of damages under section 94; 55-year-old; soft tissue injuries; cervical spine and psychological injuries against background of pre-existing lower back injury and psychological problems; no non-economic loss; past and future economic loss, future commercial care, past and future treatment; Held – damages assessed according with sub-sections 94(3) and 94(4).

Decision date: 11 August 2023 | Member: Shana Radnan

CIC Allianz Insurance Ltd v Fulton [2023] NSWPIC 407

Motor Accident Injuries Act 2017; 51-year-old passenger injured in a motor vehicle accident; insurer wholly admitted liability; sustained avulsion fractures of the right foot; claimant is an office worker; no entitlement to non-economic loss; claim for past and future economic loss; no allegation of contributory negligence; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 14 August 2023 | Member: David Ford

Allianz Australia Insurance Ltd v Huang [2023] NSWPIC 456

Motor Accident Injuries Act 2017; 61-year-old female passenger injured in a motor vehicle accident; insurer wholly admitted liability; sustained injuries to lumbar spine, being a fracture of the L1 vertebra, fractured sternum and bruising to the upper body; claimant is a senior tax accountant; entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 23 August 2023 | Member: David Ford

Allianz Australia Insurance Ltd v Hobson [2023] NSWPIC 560

Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant is 32 years old; sustained soft injuries to his left shoulder and contusion injuries; entitled to past and future economic loss; claimant made a full recovery; claimant aware of his rights for reasonable future treatment for accident related injuries for the rest of his life; Held – proposed settlement of $26,655.72 less paid wages within the range of likely potential damages should the claim proceed to assessment; settlement just, fair and reasonable; settlement approved.

Decision date: 24 October 2023 | Member: Elyse White

Workers Compensation non-Presidential Member Decisions

Fletcher v GrainCorp Operations Ltd & Ors [2023] NSWPIC 551

Workers Compensation Act 1987; claim for weekly benefits, lump sum compensation and medical expenses; findings on primary liability were made in previous decision of the Commission in these proceedings; applicant has been medically assessed; current dispute concerns weekly benefits for a period which traverses the commencement of the 2012 amendments, and for payment of medical expenses; Held – respondents to pay section 66 compensation in accordance with the findings of the Medical Assessor; the applicant has suffered incapacity for employment as a result of his injuries; liability for that incapacity rests with the second respondent, given the applicant was able to work in heavy, repetitive and manual employment from his initial injury in 1996 until his second deemed date of injury in 2009; second respondent ordered to pay the applicant weekly payments from 10 October 2009 to 25 December 2017; the respondents are to pay the applicant’s section 60 expenses incurred as a result of his injuries, with the second respondent to pay the costs of and incidental to the shoulder surgery carried out by Dr Ashton.

Decision date: 19 October 2023 | Member: Cameron Burge

Andersen v Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery [2023] NSWPIC 552

Weekly compensation claim for injury to left knee and consequential lumbar spine condition; respondent disputed continuing condition, consequential condition, capacity, and challenged credit; Kooragang Cement Pty Ltd v Bates considered; Held – award for applicant for continuing condition, consequential condition, weekly payments.

Decision date: 19 October 2023 | Member: Michael Wright

Ogbonna v Shedvic Australia Pty Ltd [2023] NSWPIC 553

Workplace Injury Management and Workers Compensation Act 1998; whether 11% whole person impairment lump sum claim can be referred to Medical Assessor (MA); no dispute regarding injury or body parts; respondent disputed section 323 calculation of applicant’s doctor, said it was incorrect and result is true calculation of 10%; no medical dispute and no referral can be made; Woolworths Ltd v Stafford and Shankar v Ceba Logistics (Australia) Pty Ltd considered; Held – there was a medical dispute; matter referred to MA.

Decision date: 20 October 2023 | Member: Michael Wright

Robb v FreshFood Management Services Pty Ltd [2023] NSWPIC 554

Workers Compensation Act 1987; claim for weeklies and medical expenses in respect of a psychological injury; section 11A defence in respect of demotion and provision of employment benefits not made out; Held – award in favour of the applicant for weekly payments for partial incapacity and section 60 expenses.

Decision date: 20 October 2023 | Member: Caroline Rimmer

Ward v State of New South Wales (Central Coast Local Health District) [2023] NSWPIC 555

Workplace Injury Management and Workers Compensation Act 1998; the worker suffered separate work injuries in 2019 and 2021 and underwent fusion surgery to the low back; the referral only specified the 2021 injury; the Medical Assessor (MA), based on the referral, made a one-third deduction pursuant to section 323 which included the 2019 injury; applicant appealed the Medical Assessment Certificate; submissions on appeal raised the accuracy of the referral; discussion of principles in Skates v Hills Industries Ltd; inconsistencies in the various documents as to whether medical dispute included the 2019 injury; application pleaded the 2019 injury and 2021 injury as causative of impairment; doctor qualified by applicant found that 2019 injury contributed to impairment but included that in the section 323 deduction; respondent’s qualified doctor found that 2019 injury and 2021 injury contributed to impairment but otherwise made a one-half deduction for the previous condition; medical dispute related to both 2019 injury and 2021 injury based on particulars in the Application and a reading of both qualified doctors; demonstrable error by MA in including 2019 injury as part of section 323 deduction; Held – amended referral to be sent to MA for further assessment pursuant to section 329(1)(b) and as alternative to an appeal pursuant to section 327(6).

Decision date: 20 October 2023 | Principal Member: John Harris

Morton v Secretary, Department of Transport [2023] NSWPIC 556

Workers Compensation Act 1987; injury to the cervical spine and both shoulders; injury to the cervical spine disputed; injury to the shoulders accepted; claim for permanent impairment compensation; sections 4 and 66; Kooragang Cement Pty Ltd v Bates and Mason v Demasi applied; Held – award for the respondent in respect to the claimed injury to the cervical spine; matter remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of both upper extremities (shoulders) and scarring/TEMSKI for whole person impairment with a deemed date of injury of 9 October 2020.

Decision date: 20 October 2023 | Member: John Turner

Ratawake v Regional Workforce Management Pty Ltd [2023] NSWPIC 557

Workers Compensation Act 1987; section 11A; whether injury wholly or predominantly caused by reasonable action with respect to discipline; Canterbury Bankstown Council v Gazi and Department of Education, Training v Sinclair and Hamad v Q Catering Limited discussed; respondent did not discharge its onus; Held – award for the applicant; comments with respect to two awards of compensation but not appropriate to make determination.

Decision date: 20 October 2023 | Member: Catherine McDonald

Smith v Coffs Harbour City Council & Ors [2023] NSWPIC 558

Second respondent denied liability on the basis that the applicant was on an authorised absence and/or not on an ordinary recess; evidence weighed in the balance and on the balance of probabilities it was determined that the second respondent was liable; the liability was apportioned equally between the first and second respondents; Held – award for the applicant.

Decision date: 23 October 2023 | Member: Jane Peacock

Jones v Hillside Brae Pty Ltd [2023] NSWPIC 559

Claim for lump sum compensation for injury to cervical spine and right shoulder; right shoulder injury and causation disputed; consideration of Mason v Demasi, Davis v Council of the City of Wagga Wagga, and Kooragang Cement Pty Ltd v Bates; Held – right shoulder injury resulted from subject injury; matter referred to Medical Assessor.

Decision date: 23 October 2023 | Member: Michael Wright

Dimian v Millennium Security Specialist Services Pty Ltd [2023] NSWPIC 561

Workers Compensation Act 1987; claim for weekly benefits and medical expenses; applicant employed as a security guard; applicant suspended with pay after issue with CCTV recording; no wrongdoing by applicant established, but respondent’s client directed that he be removed from the site; accepted psychological injury; respondent relied on a defence to the claim pursuant to section 11A, relying on its action with respect to discipline; respondent sought leave to rely on its action with respect to transfer; applicant opposed leave being granted; respondent maintained that applicant had work capacity; consideration of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Irwin v Director-General of Education, Department of Education and Training v Sinclair, Northern NSW Local Health Network v Heggie, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Smith v Roads and Traffic Authority of NSW, Ivanisevic v Laudet Pty Ltd, Commissioner of Police v Minahan, Jeffery v Lintipal Pty Ltd, Viney v Burwood Council, and Kirkbride v State of New South Wales (Ambulance Service); Held – the respondent is refused leave to rely on its action with respect to transfer; the applicant’s injury was wholly caused by respondent’s action with respect to discipline, in suspending the applicant with pay; the respondent’s action with respect to discipline was not reasonable; the respondent does not have a defence to the claim pursuant to section 11A; the applicant has no work capacity; award for applicant of weekly benefits pursuant to sections 36 and 37; award for applicant of medical expenses pursuant to section 60.

Decision date: 24 October 2023 | Senior Member: Kerry Haddock

Tape v Nambucca River Jockey Club Pty Ltd [2023] NSWPIC 562

Workplace Injury Management and Workers Compensation Act 1998; this was a claim for industrial deafness opposed on the basis of late notice and late lodgement of the claim; pursuant to section 254 and section 261; the respondent also opposed any finding of loss; Held – applicant’s failure to give notice as required by section 254 was occasioned by his ignorance of the notice requirement; time for lodgement of the applicant’s claim will be extended to the date of actual lodgement.

Decision date: 24 October 2023 | Member: Lea Dake

Paratore v Mooravit Pty Ltd t/as Harvey Norman [2023] NSWPIC 564

Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to a proposed lumbar spine surgery; where pre-existing degenerative pathology; Paric v John Holland (Constructions) Pty Ltd applied; Held – the history provided by the applicant to his treating specialists and medicolegal expert significantly understated the extent and nature of his pre-injury symptoms; material put to the doctors did not represent a “fair climate” for the opinions they expressed; Commission not satisfied that the injury materially contributed to the need for surgery; the applicant failed to discharge his onus.

Decision date: 25 October 2023 | Member: Rachel Homan

Schouten v State of New South Wales (Northern NSW Local Health District) [2023] NSWPIC 565

Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66 for psychological injury caused by a disease process; claim for past medical and related expenses; no dispute that applicant had a primary psychological injury; no dispute in relation to claim for past medical and related expenses; whether the psychological injury was caused by a disease process due to the nature and conditions of work; Held – the applicant sustained a primary psychological injury pursuant to sections 4(b) and 11A(3), due to the nature and conditions of work, with a date of injury of 31 January 2019 (deemed); the matter is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment; respondent to pay the applicant’s past medical and related expenses.

Decision date: 25 October 2023 | Member: Karen Garner

Motor Accidents Medical Review Panel Decisions

Insurance Australia Ltd t/as NRMA Insurance v Cataldo [2023] NSWPICMP 196

Review of Certificate of Medical Assessor (MA) Dixon of 26 July 2022 finding 19% whole person impairment; the Panel concluded re-examination of claimant was required as MA Dixon had failed to take into account the claimant’s subsequent injury of 15 April 2019; the Panel accepted the claimant’s history given to MA Gorman in his re-examination that she suffered no injury in a very minor accident on 15 April 2019, as the claimant had not obtained any treatment or advice from any health professional consequent upon that accident; Panel accepted the conclusions and findings assessor MA Gorman’s re-examination, and found there was nothing unusual in significantly different findings of radiculopathy at different times by different clinicians; the Panel noted that radicular “symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities”; see David v Allianz Australia insurance Limited; Held – certificate of MA Dixon of 26 July 2022 is revoked.

Decision date: 8 May 2023 | Panel Members: Member Robert Foggo, Dr Shane Moloney, and Dr David Gorman | Injury module: Spine

Siladji v Insurance Australia Ltd t/as NRMA Insurance [2023] NSWPICMP 308

Review of certificate of Medical Assessor (MA) Paisley dated 9 August 2021 who found the claimant was suffering a major depressive disorder and a panic disorder with an assessment of whole person impairment (WPI) of 8%; claimant involved in a high speed rear end collision on 5 December 2015; claimant disputed the categories of psychiatric impairment rating scale (PIRS) classifications determined by the MA and submitted that a WPI with treatment effect and amounting in total to 16% was reasonable; insurer submitted that generally the claimant did not satisfy a higher rating as he was not severely and totally incapacitated; following examination of the claimant the panel concluded that the claimant was experiencing ongoing psychological symptoms; Held – the claimants had a DSM-5 diagnosis of persistent depressive disorder with anxious distress and had a WPI assessment of 8% together with an allowance for treatment effect of 1% giving a total WPI of 9%.

Decision date: 30 June 2023 | Panel Members: Member Alexander Bolton, Dr Matthew Jones and Dr Michael Hong | Injury module: Mental and Behavioural

QBE Insurance (Australia) Ltd v Lawrence [2023] NSWPICMP 358

Claimant was a pedestrian hit by a car in a shopping centre car park; injuries reported to both arms and left hip; two weeks after the accident claimant complained of lumbar spine symptoms and pain; request made for two level lumbar spinal fusion surgery; Medical Assessor approved surgery as reasonable and necessary and caused by the motor accident; Held – original medical certificate set aside; claimant’s proposed treatment and care for spinal surgery not reasonable and necessary and not caused by the motor accident; claimants reported symptoms, presentation and medical examination showed her symptoms were not that of chronic pain originating from the lumbosacral spine. X-Rays and MRI scans show chronic degenerative changes to the lumbar spine including annular tears to the disc but no nerve root compression.

Decision date: 26 July 2023 | Panel Members: Member Ray Plibersek, Dr Michael Couch and Dr Neil Berry | Injury module: Treatment Type: Surgery

Jarrar v AAI Limited t/as GIO [2023] NSWPICMP 519

Motor Accident Injuries Act 2017; dispute related to whether a physical injury was a threshold injury; claimant involved in a motor accident on 4 May 2021 in a rear end collision; claimant not re-examined as no utility due to right shoulder surgery; supraspinatus tear repaired at surgery; claimant established that right shoulder tear caused or aggravated by motor accident; medically plausible; contemporaneous clinical records showed right shoulder symptoms; continuous ongoing right shoulder symptoms resulting in surgery; reported improvement from surgery; decision consistent with treating surgeon opinion; observation that subsequent surgery did not result in injury being classified as non-threshold; Mandoukas v Allianz Australia Insurance Ltd applied; Held – medical assessment revoked; claimant assessed as suffered from non-threshold right shoulder injury.

Decision date: 13 October 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson, and Dr Ian Cameron | Injury module: Spine and Upper Limb

AAI Limited t/as AAMI v Cox [2023] NSWPICMP 520

Motor Accident Injuries Act 2017; claimant sustained injury in a motor vehicle accident on 20 June 2018; claimant sustained injury to cervical spine, thoracic and lumbar spine; dispute as to threshold injury; dispute as to whole person impairment (WPI); Medical Assessor (MA) Wallace assessed the claimant and issued a certificate dated 12 December 2020; he found radiculopathy and certified the lumbar spine was not a threshold injury; the insurer filed an application for further assessment of threshold injury which was referred to MA Cameron; MA Cameron also assessed WPI; MA Cameron did not find radiculopathy but noted MA Wallace had previously determined the lumbar spine was not a threshold injury noting radiculopathy can resolve; MA Cameron assessed 0% WPI for soft tissue injury to cervical and thoracic spine and 5% WPI for injury to lumbar spine; Panel asked to review certificate of MA Cameron; Held – cervical spine and thoracic spine threshold injury; whilst Panel did not find radiculopathy satisfied having regard to reasoning in David v Allianz Australia Ltd that claimant demonstrated two signs of radiculopathy when assessed by MA Wallace and certified lumbar spine as non-threshold injury; Panel assessed 0% WPI for cervical spine and thoracic spine and 5% WPI for lumbar spine; certificate of MA Cameron affirmed.

Decision date: 13 October 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem, and Dr Geoffrey Stubbs | Injury module: Brain Injury and Spine

Chandab v Allianz Australia Insurance Limited [2023] NSWPICMP 521

Motor Accidents Injuries Act 2017; medical assessment of threshold injury by Medical Assessor Cameron (MA) and claimant’s review under section 7.26; claimant passenger in her husband’s car when it swerved to avoid a collision with another car and rolled; claimant alleged injuries to her head, back and neck and developed shoulder and psychological injuries after the accident; parties agreed that the issues requiring determination where whether an L5/S1 annular tear was caused by the accident (no record of low back pain for six months after the accident) and whether the claimant has had cervical radiculopathy at any time since the accident (no treating specialists or GP diagnosis – reference to radiculopathy in MRI images); Held – on examination, claimant did not have any of the five signs of radiculopathy as required by clause 5.8 of the Motor Accident Guidelines; review of medical notes and records did not reveal any of the signs of radiculopathy at any time; reference in the radiology scan was to pathology which might explain radiculopathy but was not a finding that there was radiculopathy; while a back injury could have occurred due to mechanism of the accident, the claimant’s back injury was not caused by the accident due to unexplained six-month gap between date of accident and first complaint of symptoms; certificate of MA Cameron confirmed.

Decision date: 17 October 2023 | Panel Members: Member Belinda Cassidy, Dr Sophia Lahz, and Dr Peter Yu | Injury module: Upper Limb, Brain Injury and Spine

Workers Compensation Medical Appeal Panel Decisions

Blacktown City Council v Hanna [2023] NSWPICMP 523

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in failing to apply a deduction pursuant to section 323; although the MA’s path of reasoning was difficult to follow, there was no compelling evidence that a deduction was warranted; Held – Medical Assessment Certificate confirmed.

Decision date: 19 October 2023 | Panel Members: Member Deborah Moore, Dr John Brian Stephenson, and Dr Margaret Gibson | Body system: Left and Right Lower Extremity, and Scarring (TEMSKI)

Kay v Muller & Edwards trading as the Coolah Black Stump Inn [2023] NSWPICMP 524

The appellant submitted that the Medical Assessor erred in failing to apply the lumbar spine modifier, where there was ample evidence of radiculopathy such that the lumbar spine modifier of 3% should have been applied; re-examination arranged; on re-examination the Panel found clear evidence of radiculopathy; Held – Medical Assessment Certificate revoked.

Decision date: 19 October 2023 | Panel Members: Member Deborah Moore, Dr Neil Berry, and Dr Tommasino Mastroianni | Body system: Spine and Scarring

Bunnings Group Ltd v Davis [2023] NSWPICMP 525

Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of 17% whole person impairment regarding a psychological injury: whether Medical Assessor (MA) had made a factual error; whether MA ought to have considered matters of jurisdiction and novus actus interveniens; whether MA ought to have made a deduction pursuant to section 323; Held – the allegation of a factual error misconstrued the evidence; no submissions made in any event as to how the alleged error impugned the Medical Assessment Certificate (MAC); Chapter 12 of the Guides considered; submissions regarding jurisdiction and novus actus rejected, referral was by consent; Bayside Council v Ware, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, and Jaffarie v Quality Castings Pty Ltd considered and applied; although MA did not refer to the earlier history of antidepressant medication or counselling, presumption of regularity applies; Jones v Registrar Workers Compensation Commission and Bojko v ICM Property Service Pty Ltd considered and applied; MAC confirmed.

Decision date: 20 October 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychological/Psychiatric

Botha v Secretary, Department of Finance, Services [2023] NSWPICMP 526

Appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale (PIRS) namely, social and recreational activities; the rating in this class was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

Decision date: 20 October 2023 | Panel Members: Member Jane Peacock, Dr John Baker, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Baker v Myall Vale Pastoral Co Pty Ltd [2023] NSWPICMP 527

Workplace Injury Management and Workers Compensation Act 1998; appeal against one half deduction for consequential injury to right knee; whether Medical Assessor (MA) correct to consider section 323 at the time of the subject left knee surgery, some 11 years later; whether MA applied wrong test; Held – contemporaneous evidence demonstrated no pre-existing condition in the right knee at the time of the subject injury to the left knee in 2004; right knee condition accepted as a consequential condition, left knee total replacement occurred in February 2015 and X-Ray of right knee in July 2016 showed advanced degeneration; MA applied wrong test in assessing section 323 deduction as at February 2015; relevant date was that referred of September 2004; Medical Assessment Certificate revoked.

Decision date: 20 October 2023 | Panel Members: Member John Wynyard, Dr Drew Dizon and Dr Alan Home | Body system: Left and Right Lower Extremity, and Scarring (TEMSKI)

Murphy v Wayne O'Neil Plumbers Pty Ltd [2023] NSWPICMP 528

The appellant submitted that the Medical Assessor (MA) erred in failing to carry out testing in respect of all the specified criteria to establish the existence of radiculopathy; the MA conducted a thorough examination; no evidence of radiculopathy; Held – Medical Assessment Certificate confirmed.

Decision date: 23 October 2023 | Panel Members: Member Deborah Moore, Dr Roger Pillemer, and Dr Doron Sher | Body system: Spine and Left Upper Extremity

Mintjay Pty. Ltd (known as Hotel Coronation) v Berrier [2023] NSWPICMP 529

Primary psychiatric injury; alleged error in assessment of the travel category of the psychiatric impairment rating scale; Panel considered that the Medical Assessor failed to provide adequate reasons for rating the worker as class 3 for travel; Appeal Panel assessed worker as class 2 for travel; Held – Medical Assessment Certificate revoked.

Decision date: 23 October 2023 | Panel Members: Member Caroline Rimmer, Dr Douglas Andrews, and Dr Graham Blom | Body system: Psychological/Psychiatric

Aslan v Blue Visions Management Pty Ltd [2023] NSWPICMP 530

Appeal from assessment of whole person impairment (psychological); fresh or additional evidence on appeal; whether the assessor erred in assessing social and recreational activities or social functioning; Held – Medical Assessment Certificate confirmed.

Decision date: 24 October 2023 | Panel Members: Member Richard Perrignon, Dr Nicholas Glozier, and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Cruickshank v State of NSW (NSW Police Force) [2023] NSWPICMP 531

Appeal in psychological injury claim by police officer against the self-care and personal hygiene assessment made by the Medical Assessor (MA); whether assessment consistent with the evidence before him; whether assessment consistent with MA's own findings; whether assessment open on clinical grounds; whether the appeal was a mere disagreement; Held – assessment by a MA in this category was inconsistent with other histories taken, and his own findings within the body of his reasons; path of reasoning confused and inconsistent; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Ltd, Jenkins v Ambulance Service of New South Wales, Western Sydney Local Health District v Chan and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Medical Assessment Certificate revoked.

Decision date: 25 October 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier, and Dr Graham Blom | Body system: Psychological/Psychiatric

Kokontis v Gate Gourmet Riverside Pty Ltd [2023] NSWPICMP 532

Medical Assessor (MA) assessed appellant had 0% whole person impairment (WPI) from workplace injury; appellant submitted MA exceeded his jurisdiction by implicitly finding appellant had suffered injury a subsequent injury; appellant submitted that insofar as MA based his assessment on the appellant being able to carry out heavy duties in his employment subsequent to his work injury the MA denied him procedural fairness by not allowing him to provide evidence and make submissions regarding that matter; appellant submitted that insofar as MA based his assessment on there being no entry in his GP’s records of his making complaint of pain to injured body part MA denied him procedural fairness by not allowing him to provide evidence and make submissions regarding that matter; Appeal Panel held it is within MA’s province when assessing a worker’s WPI to consider matters that happened after work injury including whether worker suffered a subsequent work or non-work injury, but MA did not in this case make any such finding; Appeal Panel held a MA is required to afford procedural fairness to a worker; Appeal Panel held MA in this case did not deny appellant procedural fairness by having regard to fact that appellant carried out heavy duties after work injury because MA made direct enquiries with appellant about that; Appeal Panel noted that a key factor in the MA assessing appellant had 0% WPI from his injury was that there was no entry in GP’s record of appellant complaining of pain; MA did not enquire about that with the appellant and consequently denied appellant procedural fairness; Held – Medical Assessment Certificate revoked.

Decision date: 25 October 2023 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson, and Dr James Bodel | Body system: Spine

Motor Accidents Merit Review Decisions

Ozcan v QBE Insurance (Australia) Limited [2023] NSWPICMR 54

Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under division 3.3; dispute about pre-accident weekly earnings; when first began to earn continuously; schedule 1, clause 4(2)(a); meaning of earning continuously clause 4(4); whether earnings likely to be received on same or similar basis for at least 6 months; section 6.24; evidence in support of contention; validity of claim; Held – remitted to insurer for redetermination.

Decision date: 18 October 2023 | Merit Reviewer: Katherine Ruschen

Miller v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 55

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; section 3.1; whether injury resulted from motor accident; section 3.8; whether loss of earnings resulted from injury suffered as a result of motor accident; pre-existing condition; Held – the reviewable decision is affirmed.

Decision date: 20 October 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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