Legal Bulletin No. 98

Issued 17 February 2023

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

Supreme Court Decision

Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

Administrative law; motor vehicle accident; Motor Accidents Injuries Act 2017 (NSW); claim rejected by insurer; application for review; medical assessor finds shoulder injury not minor; insurer’s application for review of assessor’s certificate; gateway function of President of Personal Injury Commission of NSW under section 7.26(5); where delegate referred review application to Review Panel; whether there is an implied obligation to give reasons for decision; gateway function of an administrative character; no implied obligation to give reasons for decision; jurisdictional error; gateway function requiring President to consider whether there was reasonable cause to suspect material error in medical assessment; whether assessor not accepting medical opinions relied on by insurer on a medical dispute can provide the basis for the required statutory opinion; delegate fell into error; Held – decision to refer assessment to Review Panel quashed

Decision date: 14 February 2023 | Before: Schmidt AJ

Presidential Decisions

Fairfield City Council v Comlekci [2023] NSWPICPD 6

Workers Compensation; application for leave to appeal an interlocutory decision pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; Held –application for leave refused; the matter is remitted to the same non-Presidential Member for determination of the remaining issues in dispute.

Decision date: 8 February 2023 | Before: Deputy President Elizabeth Wood

K & W Haulage Pty Ltd v BCL [2023] NSWPICPD 7

Workers Compensation; extension of time to appeal; Yacoub v Pilkington (Australia Ltd) applied; Ho v Professional Services Review Committee No.295, Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd and Gallo v Dawson discussed and applied; perception of events; Attorney General’s Department v K applied; duty to give reasons; Waterways Authority v Fitzgibbon and Beale v Government Insurance Office of NSW applied; Held – the Certificate of Determination dated 6 July 2022 is revoked; the matter is remitted to another non-presidential member for re-determination.

Decision date: 8 February 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decision

Insurance Australia Limited t/as NRMA Insurance v Everett [2023] NSWPIC 40

Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; claimant run over in driveway of own home; claimant sustained undisplaced fracture of pelvis and fractured left elbow requiring surgery and hardware; claimant worked in aged care and while she returned to light duties for a short period her employment ended as she would not be able to return to full duties; settlement offer included $82,760.90 for past loss of earnings and $60,000 for the future; entitlement to non-economic loss explored with further medico-legal obtained; claimant soon to turn 67 but had no plans regarding work or retirement; Held – settlement approved, and parties reminded of claimant’s entitlements under sections 3.24 and 3.26.

Decision date: 3 February 2023 | Member: Belinda Cassidy

Workers Compensation non-Presidential Member Decisions

Bavafa v Bob Jane Corporation Pty Limited [2023] NSWPIC 39

Workers Compensation Act 1987; injury to cervical spine alleged pursuant to section 4(b)(ii) as a result employment from 2017 to 30 January 2019 including incident on 16 May 2018; claim for proposed cervical C5-7 anterior decompression and fusion surgery and associated treatment pursuant to section 60; respondent denies injury occurred and disputes whether the surgery is reasonably necessary treatment; Held –award for the respondent in relation to allegation of injury to cervical spine on 16 May 2018; award for applicant pursuant to s4(b)(ii); the proposed surgery is reasonably necessary treatment.

Decision date: 2 February 2023| Principal Member: Josephine Bamber

AFF Properties Pty Ltd v Robovich & Ors [2023] NSWPIC 41

Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; consideration of Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Shanika Cooper v G & W Mudge Concreting Pty Limited & others, Zona Coatings Pty Limited v Zrinski & Ors, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors and BFG v Polyfoam (Sydney) Pty Ltd & Ors; Held – award of interest from the date the claim was “duly made”, being when each respondent’s Reply was served, at a rate 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum.

Decision date: 3 February 2023| Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Boom v AAI Limited t/as GIO [2023] NSWPICMP 29

Motor Accidents Compensation Act 1999; claimant was a passenger and trainee driver in a bus which stopped suddenly; injuries reported; shoulders and psychological injury; Held – original Medical Assessment Certificate affirmed; claimant did not sustain any psychological injury as a result of or caused by the motor accident; Review Panel found no exacerbation of his pre-existing disorder due to the bus accident; no whole person permanent impairment psychological injury attributable to the bus accident; claimant had a past history of chronic psychological conditions prior to the bus accident; after the bus accident the claimant completed a technical and further education (TAFE) course, commenced work and had no record of psychological difficulty for some months following the accident.

Decision date: 31 January 2023 | Panel Members: Member Ray Plibersek, Dr Doron Samuell and Dr Wayne Mason | Injury module: Mental and Behavioural

Sydney Trains v Brookes [2023] NSWPICMP 32

On 22 January 2018 the claimant was on a train waiting at the door to alight when the train hit the buffer at the end of the line; the accident constitutes a ‘public transport accident’ for the purposes of the Transport Administration Act 1988; damages assessed under chapter 5 of the Motor Accidents Compensation Act 1999; the claimant suffered fractured ribs, fractured nasal bones, a laceration to the forehead and an abrasion to the left patella; on 14 May 2018 the claimant diagnosed with thrombosis in the left popliteal artery which led to amputation; injuries referred for assessment of permanent impairment were fractured ribs and Guillain-Barre syndrome (GBS); question of causation of the thrombosis of the right popliteal artery and resulting amputation; question of diagnosis; question of causation of GBS; Held – fractured 4^th, 6^th, 7^th and 8^th ribs caused by accident; rib fractures resolved and do not result in permanent impairment; Review Panel accepts diagnosis of GBS; the claimant’s hospitalisation associated with the amputation either caused or contributed to infection, in all likelihood, clostridium difficile caused or contributed to the development of the GBS; injury to the patella remote from anatomical location of the popliteal artery; claimant predisposed to thrombosis; no evidence of vascular insufficiency until three months post-accident; thrombosis in the popliteal artery was not causally related to the accident; subsequent below knee amputation and ensuing period of hospitalisation not causally related to the accident; GBS not caused by accident and no assessable permanent impairment.

Decision date: 3 February 2023 | Panel Members: Member Susan McTegg, Dr Tai Tak Wan and Dr Wing Chan | Injury module: Nervous (Neurological) and Upper Limb

Workers Compensation Medical Appeal Panel Decisions

Stewart v AcrWorld Pty Limited [2023] NSWPICMP 30

Claim that Medical Assessor applied incorrect criteria in assessing the left lower extremity; Held – appellant had not familiarised himself adequately with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; Medical Assessment Certificate confirmed.

Decision date: 1 February 2023 | Panel Members: Member John Wynyard, Dr Mark Burns and Dr John Stephenson | Body system: Lumbar Spine, Left Lower Extremity and Scarring

Harrison v Rod Shoesmith Pty Ltd [2023] NSWPICMP 31

Appellant suffered injury to right wrist; appellant’s Independent Medical Examiner (IME) included in his assessment of the appellant’s permanent impairment from that injury a rating for ankylosis; whether Medical Assessor (MA) had regard to appellant’s IME opinion; whether MA erred by not including in his assessment a rating for ankylosis; whether MA erred by not assessing appellant’s impairment due to scarring; Held –Appeal Panel found that MA did not err by not assessing scarring as appellant’s claim did not include scarring; MA had regard to appellant’s IME’s opinion; MA’s examination of the appellant did not reveal ankylosis; Medical Assessment Certificate confirmed.

Decision date: 1 February 2023 | Panel Members: Member Marshal Douglas, Dr James Bodel and Dr John Brian Stephenson | Body system: Right Upper Extremity

Yarnold v Peter Cush ATF Melville Trust [2023] NSWPICMP 33

Assessment of permanent impairment from psychiatric injury; appellant contended Medical Assessor did not provide sufficient reasons for rating her impairment as mild for concentration, persistence and pace; Appeal Panel agreed; appellant re-examined; Held – Medical Assessment Certificate revoked.

Decision date: 3 February 2023 | Panel Members: Member Marshal Douglas, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Lloyd v Newcastle City Council [2023] NSWPICMP 34

Workplace Injury Management and Workers Compensation Act 1998;appellant assessed for whole person impairment from injury to right knee and consequential condition in left knee; appellant had previously had total right knee replacement and had extensive pre-existing osteoarthritis in left knee; whether deduction of 100% under section 323 with respect to left knee and deduction of 73% under section 323 of with respect to right knee was an error; Held – Appeal Panel held it was an error; Medical Assessment Certificate revoked.

Decision date: 3 February 2023 | Panel Members: Member Marshal Douglas, Dr John Stephenson and Dr Gregory McGroder | Body system: Right and Left Lower Extremity and Scarring

Motor Accidents Merit Review Decision

Gray v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 6

Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; pre-accident weekly earnings (PAWE); meaning of PAWE; schedule 1, clause 4(1); change in earning circumstances clause 4(3) and 4(2)(b); COVID-19 lockdown; interruption to earnings; COVID-19 disaster payments; earnings as an earner Held – the reviewable decision is set aside.

Decision date: 2 February 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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