Legal Bulletin No. 97

Issued 10 February 2023

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

Supreme Court Decision

Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38

Administrative law; judicial review; determination of Appeal Panel of Workers Compensation Commission; powers of Appeal Panel; whether Appeal Panel has the power to re-examine applicant prior to finding error; where plaintiff suffered psychological injury; Decision – order that the Amended Summons filed 19 April 2022 be dismissed; order that the plaintiff pay the first defendant’s costs of the proceedings.

Decision date: 3 February 2023 | Before: Chen J

Presidential Member Decisions

Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3

Workers Compensation; principles applicable to the identification of error in a factual determination; Whiteley Muir & Zwanenberg Ltd v Kerr and Northern NSW Local Health Network v Heggie considered and applied; whether error in affording no weight to the opinion of a medical expert which was based on Paric v John Holland Constructions Pty Ltd and Niko Paric v John Holland (Constructions) Pty Limited.

Decision date: 30 January 2023 | Before: Deputy President Elizabeth Wood

Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4

Workers Compensation; section 38 of the Workers Compensation Act 1987; Member’s obligation to give reasons; failure to give reasons; Sydney Catholic Schools Limited v Bridgefoot and Wang v State of New South Wales considered.

Decision date: 1 February 2023 | Before: Acting Deputy President Geoffrey Parker SC

Conway v Campbelltown Catholic Club Limited [2023] NSWPICPD 5

Workers Compensation; section 151Z(1)(c) of the Workers Compensation Act 1987; Mahony v J Kruschich (Demolitions) Pty Ltd and Lindeman Limited v Colvin discussed.

Decision date: 1 February 2023 | Before: Acting Deputy President Geoffrey Parker SC

Motor Accidents non-Presidential Member Decisions

Su v Allianz Australia Insurance Limited [2023] NSWPIC 33

Motor Accident Injuries Act 2017; statutory benefits claim; application by claimant for determination that claimant is not wholly at fault; claimant 75 years of age crossing Kings Cross Road and a light controlled pedestrian crossing on his bicycle; insured turned corner on a green light, saw claimant approaching and stopped; small portion of car over white line and into pedestrian zone; claimant collided with insured vehicle, fell and was injured; issue about the colour the pedestrian light and if red, whether it was a flashing red light; claimant riding in breach of the road rules; Held – weight given to independent witness walking in same direction as the claimant who said light was red; claimant rode onto crossing when it was red and not flashing; claimant wholly at fault; costs allowed including costs of an investigator who obtained a statement from the claimant about how the accident happened.

Decision date: 24 January 2023 | Member: Belinda Cassidy

Allianz Australia Insurance Limited v Brain (EOTL) [2023] NSWPIC 38

Motor Accident Injuries Act 2017; approval of proposed damages settlement in the sum of $80,000 under section 6.23; claimant 88 years old when accident occurred; suffered fractured right humeral head and soft tissues in the accident; liability for damages claim admitted; entitlement to damages for non-economic loss conceded; retired at time of accident; no allowance for economic loss; claimant died two years after accident due to complaints unrelated to the accident; Held – proposed settlement approved.

Decision date: 2 February 2023 | Senior Member: Brett Williams

Workers Compensation non-Presidential Member Decisions

Simamora v International Moulded Plastics Pty Ltd [2023] NSWPIC 34

Accepted claim for right upper extremity injury; claim for primary or consequential neck injury or condition, consequential left upper extremity condition and consequential hypertensive condition; consideration of Kooragang Cement Pty Limited v Bates, Woolworths Limited v Stafford and Westpac Banking Corporation v Hungerford;preference of applicant’s medical opinion over opinion of Dr Wallace; Held – award in favour of the applicant in respect of right upper extremity and neck injuries and consequential left upper extremity and hypertensive conditions; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor.

Decision date: 27 January 2023| Member: Phillip Young

Goulburn Flight Training Centre Pty Limited v Druck & Ors [2023] NSWPIC 35

Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; claim opposed by applicant; consideration of Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor, Haidary v Wandella PetFoods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, ZKM Pty Ltd v Chen, BCP v Secretary (Department of Communities and Justice) & Ors, JDC Kitchens Pty Ltd v Negherbon & Anor and BJA v NSW Health Service – Arrum Aged Care & Ors; Held – award of interest from the date the claim was “duly made” at a rate 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum; interest payable to the second, fourth and fifth respondents to be paid to the NSW Trustee and Guardian.

Decision date: 30 January 2023| Senior Member: Kerry Haddock

Lodge v State of New South Wales (Mid North Coast Local Health District) [2023] NSWPIC 37

Workers Compensation Act 1987; employer disputes liability to pay compensation for an accepted psychological injury on the basis of section 11A (1) (discipline); upon receipt of a grievance from a fellow employee of worker, employer initiated an investigation in accordance with its policy for managing misconduct with respect to that complaint and several separate, apparently unrelated, issues concerning the worker’s conduct; Held – the evidence established that the initiation of an investigation in relation to the grievance was reasonable; there was no satisfactory evidence that an investigation of the other issues was reasonable; State of New South Wales v Stokes applied; award for the worker for weekly compensation and section 60 expenses.

Decision date: 31 January 2023 | Member: Paul Sweeney

Workers Compensation President’s Delegate Decision

Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated [2023] NSWPIC 36

Workers Compensation Act 1987; work capacity dispute; section 38 period; whether worker had no current work capacity; meaning of likely to continue indefinitely; Roberts v University of Sydney applied; consideration of medical evidence; no weight to be given to opinion of an occupational physician concerning psychological injury; Held – award for the applicant of weekly payments under section 38.

Decision date: 30 January 2023 | Delegate: Parnel McAdam

Motor Accidents Medical Review Panel Decisions

Hickey v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 19

Motor Accidents Compensation Act 1999;claimant was a driver in a stationary car hit from behind; injuries reported to neck, spine, left shoulder and right knee; Held – original Medical Assessment Certificate (MAC) set aside; Review Panel issued a new MAC; claimant’s injuries were caused by the motor accident and give rise to a permanent impairment which is greater than 10%; neck (cervical spine), back (lumbar spine), left shoulder and right knee; claimant has a past history of chronic neck and low back pain prior to the subject accident caused at prior workplace accidents; the quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the neck, back and left shoulder.

Decision date: 24 January 2023 | Panel Members: Member Ray Plibersek, Dr Chris Oates and Dr Alan Home | Injury module: Spine, Upper and Lower Limb

Johnston v QBE Insurance (Australia) Limited [2023] NSWPICMP 21

Motor Accidents Compensation Act 1999; dispute about treatment (shoulder surgery) and insurer’s review under section 63; the Medical Assessor had determined that the surgery was not related to the injuries sustained in the accident and not reasonable and necessary; at the time of the original assessment the surgery had taken place; Held – the Panel found the claimant injured his left shoulder in the accident; the diagnosis was of bursitis with impingement and a likely capsular strain; the injury was a material cause of the need for surgery and thus the surgery was related to the injury sustained in the accident; the surgery was reasonable and necessary in the circumstances; cases referred to included AAI Limited t/as AAMI v Phillips (causation); Diab v NRMA Limited (reasonable); Clampett v Workcover Authority of NSW (necessary).

Decision date: 27 January 2023 | Panel Members: Member Belinda Cassidy, Dr Leslie Barnsley and Dr Alan Home | Injury module: Spine and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Vegco Pty Ltd v Anderson [2023] NSWPICMP 22

Workplace Injury Management and Workers Compensation Act 1998;respondent worker suffered injury to thumbs, knees and lumbar spine; respondent’s claim for compensation with respect to his upper extremities was limited to his thumbs; Medical Assessor (MA) included in his assessment a component for restricted movement of the wrists; whether MA erred by doing so; whether MA also erred by not making section 323 deduction for pre-existing degeneration in lumbar spine; Held – Appeal Panel held that MA erred with respect to both issues; Medical Assessment Certificate revoked.

Decision date: 27 January 2023 | Panel Members: Member Marshal Douglas, Dr Tommasino Mastroianni and Dr Neil Berry | Body system: Lumbar Spine, Right and Left Upper Extremity and Scarring

Cavaleri v Woolworths Limited [2023] NSWPICMP 23

The appellant submitted that the Medical Assessor (MA) erred with respect to three categories in the psychiatric impairment rating scale (PIRS); Held – Appeal Panel found no errors by the MA in all PIRS categories the subject of appeal; Medical Assessment Certificate confirmed.

Decision date: 27 January 2023 | Panel Members: Member Deborah Moore, Dr Douglas Andrews and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Daley v State of New South Wales (Ambulance Service of NSW) [2023] NSWPICMP 25

Workplace Injury Management and Workers Compensation Act 1998;worker alleges error in assessment of psychiatric impairment rating scale (PIRS) categories of self-care and concentration; he also asserts a breach of procedural fairness in that he was not given opportunity to elaborate on his answers at the assessment and seeks to tender a further statement as additional relevant evidence pursuant to S327(3)(b); Pitsonis v Registrar of the Workers Compensation Commission and Lukacevic v Coates Hire Operations Pty Ltd considered; further statement rejected; Held – Appeal Panel unable to find error; Medical Assessment Certificate confirmed.

Decision date: 27 January 2023 | Panel Members: Member Paul Sweeney, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Dowd v Realfield Holdings Pty Ltd trading as Kitchen Warehouse [2023] NSWPICMP 26

Worker suffering primary psychological injury; appealed against the classification of the Medical Assessor in the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel and social functioning; Held – no error demonstrated; Medical Assessment Certificate confirmed.

Decision date: 30 January 2023 | Panel Members: Member Carolyn Rimmer, Dr Douglas Andrews and Dr Michael Hong | Body system: Psychological/Psychiatric

MJS Quality Constructions Pty Ltd v Yacoub [2023] NSWPICMP 27

Appeal against assessment of a Medical Assessor (MA) of 15% whole person impairment (WPI) as a result of injury to the right lower extremity; the MA found two separate injuries to the right lower extremity, an injury to the muscle of the right thigh and a separate peripheral nerve injury to the saphenous nerve; the appellant submitted that Table 17-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) prevented an assessment of the peripheral nerve injury and loss of muscle strength in the right lower extremity; the respondent submitted that the two separate injuries permitted them both to be assessed in reaching a total assessment of WPI for the right lower extremity examination of relevant Tables in Chapter 7 of AMA 5 and also Chapter 3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; Held – the MA was correct in his diagnosis of two separate injuries to the right lower extremity, and that Table 17-2 of AMA 5 did not prevent the two separate injuries to the right lower extremity being assessed, and combined to give the total assessment in respect of injury to the right lower extremity as found by the MA; Medical Assessment Certificate of the MA confirmed.

Decision date: 31 January 2023 | Panel Members: Member Brett Batchelor, Dr David Crocker and Dr James Bodel | Body system: Lumbar Spine, Right Lower Extremity and Scarring

Water Brothers Plumbing Pty Ltd v Toseski [2023] NSWPICMP 28

Injury to left foot and consequential condition in right wrist; error in percentage attributable to eversion of left ankle corrected; employer argued that Medical Assessor (MA) should not have assessed a peripheral nerve injury not specifically referred to him, relying on Skates v Hills Industries Ltd; MA was required to assess the worker as he presented, including any sensory loss resulting from the injury to the body part referred; Held – Medical Assessment Certificate revoked.

Decision date: 31 January 2023 | Panel Members: Member Catherine McDonald, Dr Tommasino Mastroianni and Dr Brian Stephenson | Body system: Left Lower Extremity, Right Upper Extremity and Scarring

Motor Accidents Merit Review Decision

Cui v Allianz Australia Insurance Limited [2023] NSWPICMR 5

Motor Accident Injuries Act 2017; merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3; whether the determination of pre-accident weekly earnings (PAWE) should be made under Schedule 1 clause 4(1) or clauses 4(2) and 4(3); where the claimant received gross earnings as a self-employed cleaner; whether there was a significant change in the claimant’s earnings circumstances within the meaning of Schedule 1 clause 4(3); whether exceptional circumstances exist to warrant the Personal Injury Commission permitting the claimant’s costs under sub-s 8.10(4)(b); Held – the reviewable decision is varied with no order made for the payment of the claimant’s legal costs.

Decision date: 27 January 2023 | Merit Reviewer: Maurice Castagnet

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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