Legal Bulletin No. 142

Issued 22 December 2023

Welcome to the one hundred and forty second 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

Sawaneh v Flintwood Disability Services Ltd [2023] NSWSC 1589

Civil; judicial review; medical appeal panel; dispute brought before Personal Injury Commission; referral to a specialist for Medical Assessment; Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW); amended summons; no jurisdictional error found; no constructive failure to exercise jurisdiction; denial of procedural fairness not found; no jurisdictional error as to the opinion as to whole person impairment and correcting error found; Held – Amended Summons dismissed.

Decision date: 15 December 2023 | Before: Walton J

Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1593

Administrative law; Judicial review; decision of Review Panel about assessment of a compensation claim; Motor Accidents Compensation Act 1999 (NSW); whether the Panel fell into jurisdictional error, failed to exercise its statutory powers and failed to give adequate reasons, failed to determine causation; constructive failure to exercise jurisdiction; the Panel’s reasons were inadequate; relevant legal errors established; Held – Appeal Panel’s decision is quashed; matter is remitted to the President to be dealt with according to law.

Decision date: 18 December 2023 | Before: Schmidt AJ

Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604

Administrative law; Motor Accidents Injuries Act 2017 (NSW); obligation to articulate error of law in the summons; whether reasons required for a decision of the President’s delegate to arrange for a medical assessment to be referred to a review panel; whether r 78 of the Personal Injury Commission Rules 2021 (NSW) impose an obligation to provide reasons; the role of the President; “gateway function”; error based on the reasons that were given; failure of the President’s delegate to answer the question asked of her; jurisdictional error established; no denial of procedural fairness; discretion to dismiss summons discussed; Held – decision quashed; matter remitted.

Decision date: 18 December 2023 | Before: Dhanji J

Presidential Member Decisions

Randstad Pty Ltd v Vardareff [2023] NSWPICPD 78

Workers compensation; weekly compensation; Pre-injury average weekly earnings; short term workers; clauses 2 and 4 of Schedule 3 to the Workers Compensation Act 1987; clauses 8AB and 8F of the Workers Compensation Regulation 2016; Held – Member’s determination is revoked in part.

Decision date: 8 December 2023 | Before: Acting Deputy President Geoffrey Parker SC

Chubb Fire & Security Pty Ltd v Trad [2023] NSWPICPD 79

Workers compensation; approach to evidence and pleadings; guiding principles and practice and procedure; sections 42 and 43 of the Personal Injury Commission Act 2020; rule 73 of the Personal Injury Commission Rules 2021; Commission is not bound by strict pleadings; Tray Fit Pty Ltd v Cairney; The King v War PensionsEntitlement Appeal Tribunal; ex parte Bott applied; Held – The Certificate of Determination dated 24 January 2023 is confirmed.

Decision date: 13 December 2023 | Before: President Judge Phillips

Barden v Walgett Shire Council [2023] NSWPICPD 80

Workers compensation; acceptance and rejection of evidence; inconsistent reasoning constituting error; denial of procedural fairness by failing to afford a party the opportunity to make submissions before evidence rejected; Held – the Member’s Certificate of Determination dated 8 December 2022 is amended to revoke determination [4] and to revoke the orders [7], [8] and [9] and is otherwise confirmed; matter is remitted to a different non-presidential member for re-determination of the appellant’s claim for weekly payments of compensation.

Decision date: 14 December 2023 | Before: Deputy President Elizabeth Wood

Walgett Shire Council v Barden [2023] NSWPICPD 81

Workers compensation; Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; fresh or additional evidence; Northern New South Wales Local Health Network v Heggie; CHEP Australia Ltd v Strickland applied; section 11A of the Workers Compensation Act 1987; where there is insufficient acceptable medical evidence to establish that the injury was wholly or predominantly caused by reasonable action by the employer in respect to discipline or termination of employment; onus rests upon the employer; Commissioner of Police v Minahan; Held – The Member’s Certificate of Determination dated 8 December 2022, as amended by Barden v Walgett Shire Council [2023] NSWPICPD 80 is confirmed.

Decision date: 14 December 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Cooper [2023] NSWPIC 654

Motor Accident Injuries Act 2017; settlement approval; claimant injured on 1 September 2022; liability admitted by the insurer; claimant was an 86-year-old passenger in a car involved in a severe impact collision; claimant was taken to hospital by ambulance suffering multiple injuries and was admitted on 1 September 2022 and was discharged on 7 October 2022; claimant’s main injury was to her cervical spine, foot and ankle and her left wrist; claimant has had ongoing rehabilitation; medical evidence is to the effect that she has now achieved maximum recovery; claimant accepted offer of settlement of $220,000 inclusive of deductions but no deductions to be made; Held – the settlement is approved.

Decision date: 1 December 2023 | Member: Alexander Bolton

Garnsey v QBE Insurance (Australia) Limited [2023] NSWPIC 660

Motor Accident Injuries Act 2017; settlement approval $265,410; 64-year-old male pedestrian; past and future economic only; lisfranc fracture left foot, surgery and DVT; whole person impairment 7%; off work for 64 weeks; future loss buffer; most injuries now healed; ongoing pain to left calf, knee and hamstrings; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 11 December 2023 | Member: Shana Radnan

Insurance Australia Limited t/as NRMA Insurance v Rowe [2023] NSWPIC 661

Motor Accident Injuries Act 2017; settlement approval $70,008.13; 71-year-old female; past and future economic only; future loss of one day per week for 12 months; whole person impairment (WPI) 6% for psychological injuries; physical injuries WPI 0%; left shoulder & left hip initial injuries of bruising healed; olfactory impairment 3% WP; most injuries healed; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.

Decision date: 11 December 2023 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Slade v Woolworths Group Limited [2023] NSWPIC 656

Permanent impairment claim; bilateral carpal tunnel injuries admitted; bilateral elbow injuries disputed; Held – the applicant has discharged the onus of proving on balance that she suffered elbow injuries; a common sense evaluation of the evidence establishes a causal link between the applicant’s employment and her ongoing elbow issues; the respondent’s IME opinion as to the absence of pathology in the applicant’s elbows stands in contrast to the views of the applicant’s IME and two treating specialists; there is no suggestion any of the doctors who have provided reports in this matter obtained incorrect histories or that their reasoning is seriously flawed; the preponderance of the medical evidence establishes the presence of bilateral elbow pathology by way of workplace injury as a result of the nature and conditions of the applicant’s employment; matter remitted to President for referral to Medical Assessor.

Decision date: 7 December 2023 | Member: Cameron Burge

Taylor v Coles Group Ltd [2023] NSWPIC 657

Workers Compensation Act 1987; the applicant suffered left knee injuries on 13 June 2012, 25 September 2012 and 1 August 2017; in 2019 the parties accepted that each of the three injuries materially contributed to the need for a total knee replacement paid by the respondent; the applicant commenced proceedings for section 66 compensation based on the three work injuries; assessed by Medical Assessor at 21% impairment; the only issue was the quantum of section 66; respondent submitted that first injury determined the quantum entitlement; applicant relied on the last injury; Held – respondent’s submissions inconsistent with previous findings and agreements that three work injuries each materially contributed to the need for surgery and that 21% impairment based on the three work injuries; the principle in Ozcan v Macarthur Disability Services Ltd applied where the worker based the entitlement only on the first injury; observations of Neilson CCJ in Sidiropoulos v Able Placements Pty Ltd applied; applicant entitled to section 66 compensation based on the last injury.

Decision date: 8 December 2023 | Principal Member: John Harris

Jones v Interline Bus Services No 23 Pty Ltd [2023] NSWPIC 658

Workers Compensation Act 1987; claim for weekly benefits and medical expenses, including costs of right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis; and L5/S1 diagnostic blocks; applicant claimed to have sustained consequential conditions of his right shoulder, lumbar spine, right foot, and right ankle, as a result of accepted injury to his left knee; respondent disputed that the applicant had sustained any consequential conditions; that the proposed or any medical treatment was reasonably necessary; and maintained that the applicant had recovered from the injury to his left knee, such that he had no incapacity for work; consideration of Kumar v Royal Comfort Bedding Pty Ltd, Diab v NRMA Ltd,and Kooragang Cement Pty Ltd v Bates; Held – applicant sustained consequential conditions of his right shoulder, lumbar spine, right foot, and right ankle as a result of injury to his left knee; the proposed medical treatment is reasonably necessary as a result of injury; the applicant has no capacity for work; award for the applicant for ongoing weekly benefits pursuant to section 37; award for the applicant for medical expenses pursuant to section 60 including the right arthroscopic subacromial decompression and supraspinatus tendon repair and scapularis repair, subacromial decompression and tenodesis, and L5/S1 diagnostic blocks.

Decision date: 8 December 2023 | Senior Member: Kerry Haddock

Florance v Star Entertainment Group [2023] NSWPIC 662

Workers Compensation Act 1987; lump sum claim; primary psychological injury conceded; disputed claim for consequential gastrointestinal condition; issue as to application of section 65A as to whether lump sum compensation can be payable for both a primary psychological injury and consequential physical condition; Bell v The Mining Pty Ltd, Judge v Workforce International (Office Services) Pty Ltd and Tagicaki v Everwilling Cranes Pty Ltd followed; Held – award for the respondent in relation to the alleged gastrointestinal condition; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment for psychological injury with the deemed date of injury of 11 July 2016.

Decision date: 11 December 2023 | Principal Member: Josephine Bamber

Quinton v Mid Western Regional Council [2023] NSWPIC 663

Claim for lump sum compensation; accepted right shoulder injury; whether consequential conditions at left shoulder and cervical spine; evidence of degenerative or pre-existing arthritis at both disputed body parts; Held – applicant discharged onus in respect of the consequential left shoulder condition; respondent’s expert erroneously focused on cause of pathology rather than symptoms and restrictions; applicant failed to discharge onus in respect of the cervical spine; evidence of symptoms at cervical spine prior to injury; inadequate explanation of causal mechanism in applicant’s statement, treating evidence or applicant’s expert reports; matter remitted to President for referral to a Medical Assessor for assessment of bilateral shoulders.

Decision date: 11 December 2023 | Member: Rachel Homan

Mansfield v Secretary, Department of Education [2023] NSWPIC 664

Workers Compensation Act 1987; whether worker who was certified by an Medical Assessor (MA) to have permanent impairment as a result of his employment as a teacher suffered further psychological injury as a result of dismissal by respondent; whether the further injury was nullified by section 11A(1); whether the worker was entitled to further assessment in respect of such an injury; Held – finding that the worker suffered psychological injury as a result of his dismissal which attracted section 16; referred for assessment; deduction for prior determination of permanent impairment a matter for MA.

Decision date: 11 December 2023 | Member: Paul Sweeney

Allchorne v Serco Australia Pty Ltd [2023] NSWPIC 665

Workers Compensation Act 1987; sections 65A and 66 psychological injury due to being assaulted in the course of employment; not disputed that applicant has suffered a psychological injury; dispute as to whether primary or secondary psychological injury; Held – that the applicant sustained a primary psychological injury due to being physically assaulted in the course of his employment with the respondent on 19 September 2019.

Decision date: 11 December 2023 | Member: John Turner

Wennerbom v Dimmeys Stores Pty Ltd atf Dimmeys Unit Trust [2023] NSWPIC 667

Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to lumbar spine on 19 May 2010; whether the applicant sustained a consequential condition of infection in the lumbar spine and brain, which resulted in neurological impairments to station, gait, bowel and bladder, as a result the accepted injury to her lumbar spine sustained on 19 May 2010; Held – the applicant sustained a consequential condition of infection in the lumbar spine and brain, which resulted in neurological impairments to station, gait, bowel and bladder, as a result the accepted injury to her lumbar spine sustained on 19 May 2010.

Decision date: 12 December 2023 | Member: Karen Garner

Nacol v Kmart Australia Limited [2023] NSWPIC 668

Claim for permanent impairment compensation as result of accepted injury to right elbow, claimed to have resulted in complex regional pain syndrome, and injury to cervical spine, which is in dispute; applicant placed under surveillance; independent medical examiners qualified by respondent altered their opinion that applicant suffered from complex regional pain syndrome after being provided with the surveillance evidence; respondent served on applicant Notice for Production seeking production of bank records; applicant objected to producing records and sought to have the Notice for Production set aside; consideration of Millgate v Nationwide News Pty Ltd, R v Saleam,and Spencer Motors Pty Ltd v LNC Industries Ltd; Held – Notice for Production set aside wholly, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(a).

Decision date: 12 December 2023 | Senior Member: Kerry Haddock

Micallef v Mathew & Son Pty Ltd [2023] NSWPIC 669

Claim for lump sum compensation; accepted injury to lumbar spine; disputed claim for injury to right shoulder; applicant accepted that unless the claim in respect of the right shoulder succeeds the whole claim for lump sum compensation must fail; absence of contemporary complaints of the right shoulder for approximately nine months following the injury despite repeated attendances on his general practitioners and specialists; no explanation by the applicant; finding that the applicant had not discharged his onus of establishing that he suffered injury to his right shoulder; applicant also claimed cost of physiotherapy or exercise physiology in relation to his lumbar spine; no dispute that he continued to suffer pain in his lumbar spine; applicant had undertaken most forms of conservative treatment; Held – weight of the evidence supported the conclusion that the treatment is reasonably necessary as a result of his accepted injury.

Decision date: 12 December 2023 | Member: Jill Toohey

Black v State of New South Wales (NSW Police Force) [2023] NSWPIC 670

Claim by Police officer for weekly compensation after his being suspended from duty without pay and criminally charged; whether accepted PTSD from six years of exposure to horrific trauma has resulted in incapacity; whether alleged criminal conduct caused incapacity by claimant’s being suspended without pay; Held – alleged criminal conduct is a manifestation of claimant’s PTSD; award in claimant’s favour as being totally incapacitated; Hamad v Q Catering and Secretary, New South Wales Department of Education v Johnson considered.

Decision date: 13 December 2023 | Member: John Wynard

Motor Accidents Medical Review Panel Decisions

BNO v AAI Limited t/as AAMI [2023] NSWPICMP 621

Motor Accident Injuries Act 2017; medical dispute with respect to the degree of whole person impairment (WPI); review of assessment by Review Panel; Medical Assessor (MA) had assessed an annular tear of the intervertebral lumbar disc as not caused by the motor accident; causation disputed; MA had assessed an injury to the left shoulder as giving rise to 7% WPI; Review Panel determined that on clinical examination of the lumbar spine, there was no paravertebral muscle guarding, no wasting of the muscle of the lower limbs, and a full range of back movement, with a result that there was zero WPI for this area; there was no evidence of a sudden traumatic annular tear of the intervertebral lumbar disc having been caused by the accident; principles to be applied in respect of causation considered; section 5D Civil Liability Act 2002 applied; Peet v NRMA Insurance Limited and Wallace v Kam applied; Held – certificate of MA Rapaport revoked.

Decision date: 29 November 2023 | Panel Members: Member Terence Stern OAM, Dr Margaret Gibson, and Dr Phillip Truskett | Injury module: Spine and Upper Limb

QBE Insurance (Australia) Limited v Beatty [2023] NSWPICMP 646

Review of decision of Medical Assessor (MA) Moloney dated 9 December 2022; claimant involved in motor vehicle accident on 16 June 2018 injuring his cervical and lumbar spines; claimant had a pre-accident history of symptomatic neck pain but not to a considerable degree and he was asymptomatic at the time of the accident working as an arborist; the accident was sudden and unexpected forcing the claimants car into another direction and colliding with a pole which it knocked down; Panel satisfied that the claimant’s complaints prior to the accident with regard to his neck and shoulders were minor but following the accident there was a major change to those symptoms; Panel was satisfied that the claimant’s injuries necessitated an anterior cervical discectomy and fusion surgery at C5/6 and C6/7 levels which was reasonable and necessary but that disc replacement surgery at the C3/4 level was not reasonable and necessary; Held – that the certificate and reasons of MA Moloney was affirmed.

Decision date: 1 December 2023 | Panel Members: Member Alexander Bolton, Dr Thomas Rosenthal, and Dr Geoffrey Stubbs | Injury module: Treatment Type: Surgery

Sabty v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 647

Review of certificate and reasons of Medical Assessor (MA) Gorman dated 1 April 2022 going to determination of threshold injury; claimant injured in motor vehicle accident on 31 December 2020 when a reversing car in a car park struck the claimant’s vehicle; claimant suffered injuries to her lumbar spine, thoracic spine, left shoulder, right shoulder, chest and cervical spine and all injuries for determination about whether they are threshold injuries which was the determination of MA Gorman; claimant submitted that signs of radiculopathy were detected by other medical examiners and therefore relying on David v Allianz Insurance Australia Ltd there was evidence of radiculopathy without it needing to be seen on examination by MA; claimant submitted that the pathology identified after accident was evidence of causation; photographs and police report indicated minor collision; claimant had sought treatment to review chronic low back pain, low back pain and stiffness, decreased range of movements of the lumbar spine and difficulty walking, standing, bending and carrying objects two weeks before the accident; Panel not satisfied that the observations of radiculopathy made after the accident by the claimant’s medical practitioners were made in accordance with part 5.3 to 5.7 inclusive of the Guidelines and that two or more signs of radiculopathy were observed at any one time; Held – that the injuries suffered by the claimant in the accident on 31 December 2020 were threshold injuries and certificate of MA Gorman affirmed.

Decision date: 1 December 2023 | Panel Members: Member Alexander Bolton, Dr Margaret Gibson, and Dr Mohammed Assem | Injury module: Spine and Upper Limb

Ginnelly v AAI Limited t/as GIO [2023] NSWPICMP 648

Motor Accidents Compensation Act 1999; claimant involved in a motor accident on 31 October 2017 whilst riding a motor bike that struck insured vehicle and claimant impaled on bike pedal; issue as to the extent of the issues before the Panel given the limited grounds of review; review applied to all matters in the medical assessment; Allianz Australia Ltd v Ellul applied; Meeuwissen v Boden and Wood v Insurance Australia Ltd referred to; permanent impairment and multiple impairment disputes; claimant had prior neck, back and bilateral shoulder symptoms; various findings made on causation of injuries and need for treatment; assessment of bilateral shoulder condition noting prior symptoms and surgical procedures; no deduction made; IAG Ltd v Chahoud applied; Held – medical assessment revoked; finding made that impairment exceeded 10%; various findings made on treatment disputes.

Decision date: 1 December 2023 | Panel Members: Principal Member John Harris, Dr John Carter, and Dr Shane Moloney | Injury module: Digestive System, Spine, and Lower Limb; Treatment Type: GP Consultations, Medical - Over the Counter, Medication - Prescription, Surgery, Other, Domestic Assistance - Reasonable and Necessary, and Domestic Assistance - Causation

Allianz Australia Insurance Limited v Ndaba [2023] NSWPICMP 651

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Mason who determined that the claimant had a WPI of greater than 10%, that is, 16% WPI; review sought by insurer under section 7.26; claimant suffered a psychological injury in the motor accident on 14 July 2019; consideration and application of clauses 6.201 to 6.228 of the Motor Accident Guidelines in respect of mental and behavioural disorders considered and applied; Held – the Panel revoked the certificate issued by MA Mason dated 11 May 2022; the Panel certified that claimant suffered a post-traumatic stress disorder caused by the motor accident on 14 July 2019 that gave rise to a WPI which is greater than 10%, that is, 15%.

Decision date: 1 December 2023 | Panel Members: Member Anthony Scarcella, Dr Samson Roberts, and Dr Glen Smith | Injury module: Mental and Behavioural

Allianz Australia Insurance Limited v Ma [2023] NSWPICMP 652

Motor Accident Injuries Act 2017; insurer’s review of assessment by Medical Assessor (MA) Tamba-Lebbie that one of the claimant’s lumbar spine injury was a non-threshold injury; claimant involved in accident on 9 December 2020 alleged injury to neck, back and left hip; no issue about any injury other than lumbar spine injury; alleged claimant had nerve root injury manifesting in radiculopathy and “complete or partial rupture” of a disc and therefore a non-threshold lumbar injury; Held – claimant was examined and did not have two or more of the five signs of radiculopathy at the time; review of medical records did not reveal evidence of two or more of the five signs of radiculopathy at any time since the accident; David v Allianz and Lynch v AAI Limited followed; while claimant’s radiology did report two “tears” of the lumbar disc the Panel was not satisfied the mechanism of accident could have caused a lumbar spine injury which tore the disc at two levels; in the alternative, the Panel also not satisfied the accident did cause the tears due to the absence of an immediate complaint of pain, the nature and pattern of treatment provided, the radiology, the claimant’s occupation and distribution of symptoms; the claimant’s lumbar spine injuries were found to be threshold injuries and MA’s certificate confirmed; Briggs v IAG t/as NRMA applied.

Decision date: 5 December 2023 | Panel Members: Member Belinda Cassidy, Dr Ian Cameron, and Dr Peter Yu | Injury module: Spine and Lower Limb

Morgan v QBE Insurance (Australia) Limited [2023] NSWPICMP 653

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Cameron who determined that the claimant did not have a WPI of greater than 10%, that is, 6% WPI; review sought by claimant under section 7.26; claimant suffered a closed head injury and injuries to her neck, left shoulder and left elbow in the subject motor accident; Held – Panel revokes the certificate of MA Cameron dated 28 March 2023; Panel certifies that the claimant sustained a mild complicated traumatic brain injury, a soft tissue injury to the cervical spine, a soft tissue injury to the left shoulder and a soft tissue injury and laceration to the left elbow caused by the motor accident on 12 September 2020 that give rise to a WPI that is not greater than 10%, that is, 9%.

Decision date: 6 December 2023 | Panel Members: Member Anthony Scarcella, Dr Sophia Lahz, and Dr Margaret Gibson | Injury module: Spine, Upper Limb, Brain Injury and Nervous System (Neurological)

Al-Mosawi v AAI Limited t/as GIO [2023] NSWPICMP 656

Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 19 December 2020 when the vehicle she was driving was rear-ended by the insured vehicle in a four-vehicle pileup; dispute whether psychological injury was a threshold injury; where the Medical Assessor at first instance found that psychological injury was not caused by the accident; Held – original assessment revoked; finding that the claimant sustained a psychological injury caused by the motor accident and that the injury was a threshold injury.

Decision date: 7 December 2023 | Panel Members: Member Maurice Castagnet, Dr Gerald Chew, and Dr Thomas Newlyn | Injury module: Mental and Behavioural

BPW v AAI Limited t/as AAMI [2023] NSWPICMP 658

Motor Accident Injuries Act 2017; review by medical review panel under section 7.26; whether the claimant’s permanent impairment, as a result of the accident, caused psychiatric injury greater than 10%; where claimant suffered post-traumatic stress disorder as a result of previous accident; where Medical Assessor found that the claimant suffered post-traumatic stress disorder as a result of subject accident, assessed pre-existing impairment, and certified that his accident caused injury did not give rise to a permanent impairment that was greater than 10%; Held – pre-existing impairment assessed; the accident caused an aggravation of post-traumatic stress disorder with depressive symptoms that gives rise to a 5% permanent impairment; the claimant’s permanent impairment is not greater than 10%.

Decision date: 7 December 2023 | Panel Members: Senior Member Brett Williams, Dr Paul Friend, and Dr Michael Hong | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Smith v Country Energy [2023] NSWPICMP 661

Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in both making an assessment of the back and in the deduction made pursuant to section 323; the Panel agreed; Held – Medical Assessment Certificate revoked.

Decision date: 12 December 2023 | Panel Members: Member Deborah Moore, Dr James Bodel, and Dr Neil Berry | Body system: Right Lower Extremity

Paton Family Trust & Wehttam Holdings Pty Ltd Atf Dobson Trust v Dubois [2023] NSWPICMP 662

Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from assessment of corticospinal tract impairment; whether asymptomatic pre-existing tumour being made symptomatic should have attracted a section 323 deduction; whether reasons adequate to explain calculations; Held – Medical Assessor (MA) failed to comply with obligation to explain calculations; Chapter 4.11 of the Guides infringed; re-examination accordingly held; MA’s calculations found to be within range; whilst minds might differ, asymptomatic pre-existing tumour contributed to the impairment but determination difficult through lack of evidence section 323(2) applied; Sydney Local Health District v Chan and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; section 323 authorities acknowledged; Medical Assessment Certificate revoked.

Decision date: 13 December 2023 | Panel Members: Member John Wynyard, Dr Mark Burns, and Dr Robin Fitzsimons | Body system: Spine and Nervous System

Workers Compensation Nominal Insurer (icare) & Ors v Peacock [2023] NSWPICMP 663

Workplace Injury Management and Workers Compensation Act 1998; nominal insurer alleges error in the psychiatric impairment rating scale categories of Travel and Employability and in the deduction of one-tenth to reflect the proportion of the worker’s impairment due to a prior injury/pre-existing condition; Panel determines that there were significant factual errors in the Medical Assessment Certificate (MAC); Marks v Secretary, Department of Communities and Justice (No 2), Camden Council v Harle, and Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW) considered; Held – Panel should not apply Chapter 11.10 of the Guidelines in this case as it is inconsistent with section 323; after re-examination Panel determined that the deductible proportion was one-third; MAC revoked and new MAC issued to reflect this finding.

Decision date: 13 December 2023 | Panel Members: Member Paul Sweeney, Dr Michael Hong, and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Ferguson v The University of Sydney [2023] NSWPICMP 664

Appeal against Medical Assessor’s (MA) assessment of binaural hearing loss (in accordance with the Table of Disabilities applicable to the assessment of compensation claims pursuant to section 66 of the Workers Compensation Act 1987 for injuries occurring prior to 1 January 2002) without including the relevant hearing losses at frequencies below 1.5 KHzs; demonstrable error alleged; error found on the basis that the MA failed to adequately explain his actual path of reasoning in coming to his conclusion regarding not including the hearing losses at frequencies below 1.5 KHz in his assessment; Queanbeyan Racing Club Ltd v Burton,Shone v Country Energy, McNaughton v Engineering & Business Services (NSW) Pty Limited, Campbelltown City Council v Vegan, Wingfoot Australia Partners Pty Limited v Kocak,and De Nobrega v Buena Bela Floor & Wall Tiling considered; Appeal Panel determines that a re-examination of the appellant is not required and it accepts, on the evidence, that the appellant’s hearing losses at frequencies below 1.5 KHz should be included in the assessment of his occupational hearing loss; Appeal Panel accordingly amends the MA’s audiogram (in relation to which no complaint was made by the parties) calculations but finds that once presbycusis is taken into account, the inclusion of the appellant’s hearing losses at frequencies below 1.5 KHz does not increase the final level of his occupational binaural hearing loss; Held – Medical Assessment Certificate revoked and new certificate issued.

Decision date: 13 December 2023 | Panel Members: Member Gaius Whiffin, Dr Robert Payten, and Dr Henley Harrison | Body system: Hearing

Reyes-Firmani v Skilltech Consulting Services Pty Ltd & Ors [2023] NSWPICMP 665

Appellant worker alleged error by Medical Assessor (MA) in a one-third deduction of impairment for an injury to the right knee; reference to Mahenthirarasa v State Rail Authority of NSW & Ors and Vannini v Worldwide Demolitions P/L on whether Appeal Panel has no more than a difference of opinion to that of the MA; several factors identified which placed the MA’s assessment at odds with the available evidence and found to be a demonstrable error; Held – Medical Assessment Certificate revoked.

Decision date: 13 December 2023 | Panel Members: Member John Isaksen, Dr David Crocker, and Dr Doron Sher | Body system: Right Lower Extremity and Scarring (TEMSKI)

Motor Accidents Merit Review Decision

Jiang v AAI Limited t/as GIO [2023] NSWPICMR 59

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings; schedule 1, clause 4; whether there was a change in earning circumstances; whether the claimant began or became entitled to regularly earn more than the claimant had earned before the change occurred; schedule 1, clause 4(3), clause 4(2)(b); Held – the reviewable decision is set aside.

Decision date: 4 December 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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