Legal Bulletin No. 99

Issued 24 February 2023

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

Presidential Decision

Couch v Electus Distribution Pty Limited [2023] NSWPICPD 8

Workers Compensation; section 60 of the Workers Compensation Act 1987; whether treatment by way of medicinal cannabis is reasonably necessary; cost of treatment considered; criteria in Rose v Health Commission (NSW) and Diab v NRMA Ltd considered and applied; Diab criteria is not exhaustive; whether treatment is reasonably necessary depends on the facts of each case; Held – the Member’s Certificate of Determination is revoked; the matter is remitted for redetermination by another Member.

Decision date: 10 February 2023 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decisions

Stuttard v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 45

Motor Accident Injuries Act 2017; assessment of damages; liability not in issue; damages limited to non-economic loss; claimant a 72 year old male living alone in Tamworth; orthopaedic injuries sustained; rib fractures and fracture to right wrist; pre-existing rheumatoid arthritis, with previous unsuccessful surgery to the left shoulder; as a result of the accident, claimant significantly disabled due to inability to adequately utilise his right upper limb, which he was previously heavily reliant upon due to left arm issues; need for care and assistance with domestic tasks and personal hygiene, whereas previously independent; social isolation and loss of enjoyment of life; issue as to whether member to have regard to previous commission awards for non-economic loss; Held –  damages awarded: $255,000 plus costs of $30,523.90.

Decision date: 7 February 2023 | Member: Elizabeth Medland

Pehlic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 47

The claimant was injured in a motor vehicle accident on 4 September 2022; dispute as to whether claimant submitted claim for statutory benefits on 12 September 2022 entitling claimant to statutory payments from the date of accident; whether claim included certificate from treating medical practitioner; consideration of clauses 4.19, 4.20, 4.21 and 4.61 of the Motor Accident Guidelines; Held –application for personal injury benefits lodged on 12 September 2022; Certificate of Fitness furnished to insurer on 17 October 2022; wording clause 4.21 of the Guidelines means it is a mandatory requirement to provide a certificate from a treating medical practitioner when giving notice of claim; claim non-compliant until 17 October 2022; no room for statutory interpretation of section 6.13(2) of the Motor Accident Injuries Act 2017; no discretion; claim not made within 28 days of accident and no entitlement to weekly statutory payments before 17 October 2022; costs assessed in favour of claimant.

Decision date: 9 February 2023 | Member: Susan McTegg

AAI Limited t/as GIO v BCV [2023] NSWPIC 54

Motor Accident Injuries Act 2017;settlement approval; 46 year old male pedestrian; struck by motor vehicle; sustained massive rotator cuff tear to right shoulder andmedial collateral ligament (MCL) tear to left knee; entitlement to non-economic loss; claim for both past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b).

Decision date: 14 February 2023 | Member: David Ford

Allianz Australia Insurance Limited v Wellington [2023] NSWPIC 55

Settlement approval; 79-year-old female; past and future economic loss only $73,500; closed period past economic loss and allowance for further 2.5 years acceptance claimant would complete 60 years as registered nurse; Held – the proposed settlement is approved.

Decision date: 15 February 2023 | Member: Shana Radnan

Insurance Australia Limited t/as NRMA Insurance v Townsend [2023] NSWPIC 56

Settlement approval; 81-year-old female; non-economic loss of $235,000; physical injuries; multiple rib fractures, sternal fracture, abdominal haematoma and left ankle fracture; psychological injuries; exacerbation of pre-existing conditions; Held – the proposed settlement is approved.

Decision date: 15 February 2023 | Member: Shana Radnan

Workers Compensation non-Presidential Member Decisions

Attard v Toll Transport Pty Ltd t/as Global Express Palletised Express [2023] NSWPIC 42

Workers Compensation Act 1987; the applicant claims weekly benefits payable under section 38 resulting from injury sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent, which is disputed by the respondent; while liability is accepted for this injury the applicant sustained to his right shoulder, the applicant alleges he has sustained consequential condition in his left shoulder and he has sustained secondary psychological injury, both of which are also disputed by the respondent; Held – the applicant has sustained consequential condition in his left shoulder and secondary psychological injury resulting from the injury the applicant sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent; the applicant has had no current work capacity since 24 May 2021 resulting from injury he sustained to his rights shoulder on 29 November 2017 and is likely to continue to indefinitely have no current work capacity resulting from that injury; the applicant has entitlement to weekly compensation payable under section 38(2) from 24 May 2021 to date and continuing.

Decision date: 6 February 2023| Member: Jacqueline Snell

Kerslake v State of New South Wales (Ambulance Service of NSW) & others [2023] NSWPIC 43

Workers Compensation Act 1987; application for apportionment of lump sum death benefit, weekly payments and funeral expenses in respect of the death of a worker; identification of dependants; Held –  the applicant and second respondent were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1), 85A; orders for payment of weekly compensation in respect of a dependent child being a student over the age of 16; orders for funeral expenses; costs.

Decision date: 6 February 2023| Member: Rachel Homan

Andronicos v Ready Workforce (A Division of Chandler Macleod) Pty Limited [2023] NSWPIC 44

Workers Compensation Act 1987; claim for right hip and right shoulder injuries; claims for weekly compensation and treatment expenses pursuant to section 60;consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether when the applicant suffered his injury on 11 April 2022 had he commenced his journey between his place of abode and his place of employment in accordance with section 10(3)(a); if so, was there a real and substantial connection between his employment and the accident out of which his injury arose in accordance with section 10(3A); Green v Secretary, Department of Education and Communities, Smith v Woolworths, Musumeci v GEM Engines Pty Limited, Chawla v Transgrid, Hogno v Fairfax Regional Printers Pty Limited and Gray v Sydney Southwest Area Health Service (Rozelle Hospital) considered; consideration of whether if the applicant had not commenced his journey, did his injury arise out of or in the course of his employment with the respondent in accordance with section 4(a); if so, was the employment a substantial contracting factor to the injury in accordance with section 9A(1); John Stewart & Son (1912), Ltd v Longhurst, Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited, Whittingham v Commissioner of Railways (WA), Henderson v Commissioner of Railways (WA), Dover Navigation Co v Craig, Smith v Australian Woollen Mills Limited, Dayton v Coles Supermarkets Pty Ltd and Kelly v Secretary, Department of Family and Community Services considered; consideration of whether if the applicant sustained an injury on 11 April 2022 that arose out or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to weekly compensation benefits since 6 July 2022 on the basis of incapacity for work; if so, what is his entitlement in this regard; Wollongong Nursing Home Pty Limited v Dewar, ACW v ACX and Tubemakers of Australia Ltd v Fernandez considered; consideration of whether if the applicant sustained an injury on 11 April 2022 that arose out or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to a ‘general’ order that his expenses pursuant to section 60 be paid by the respondent; Held – the applicant sustained a personal injury to his right hip and right shoulder arising out of and in the course of his employment with the respondent on 11 April 2022, pursuant to section 4(a); his employment with the respondent was a substantial contributing factor to the personal injury pursuant to section 9A; since 11 April 2022, the applicant has been incapacitated for work and possessed no current work capacity, as a result of the injury received on that date; the applicant is entitled to have his reasonably necessary treatment expenses pursuant to section 60 paid by the respondent; awards for the applicant pursuant to sections 36, 37, and 60.

Decision date: 7 February 2023| Member: Gaius Whiffin

Portelli v The Hills Shire Council [2023] NSWPIC 46

Workers Compensation Act 1987; claim for partial meniscectomy of the left knee; injury to left knee disputed; reasonable necessity of proposed treatment conceded; previous history of injuries to, and surgical treatment of, left knee; clinical records of general practitioner did not record left knee symptoms until seven months after injury; physiotherapist recorded symptoms two weeks after injury; applicant has meniscal tear; Held – the applicant sustained injury to his left knee on 31 January 2020 when a high pressure water hose exploded, forcing him backwards; respondent to pay the costs of partial meniscectomy of left knee, by arthroscopic means, for traumatic meniscus tear pursuant to section 60(5).

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

Iqbal v Hotel Operations Solutions Pty Ltd [2023] NSWPIC 48

Claim for weekly compensation from 7 October 2010 to date and continuing; quantification of capacity and entitlement to weekly compensation; application of 2012 amendments; whether existing recipient; applicant assessed as having more than 30% permanent impairment in 2022 and now a worker with highest needs; application of the transitional provision in clause 2 of Schedule 8 to the Workers Compensation Regulation 2010 (Regulation); Meat Carter Pty Ltd v Melides; section 38A(1) of the Workers Compensation Act 1987; Held – applicant was partially incapacitated until 10 April 2012 and totally incapacitated thereafter; applicant not an existing recipient; clause 2 of Schedule 8 to the Regulation did not apply until Medical Assessment Certificate issued in 2022; awards for weekly compensation at varying rates.

Decision date: 10 February 2023| Member: Rachel Homan

Hain v Health Care North Gosford Pty Limited [2023] NSWPIC 50

Whether surgery in the form of L5/S1 anterior fusion augmented by posterior pedicle screws was reasonably necessary following workplace injury in the form of aggravation of pre-existing degenerative changes; Held – the applicant sustained injury to her lumbar spine on 1 March 2021; the surgery is reasonably necessary treatment.

Decision date: 13 February 2023| Member: Michael Inglis

Mourad v Breen Resources Pty Ltd [2023] NSWPIC 51

Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 resulting from primary psychological injury sustained in the course of his employment with the respondent; the applicant claims permanent impairment compensation payable under section 66 resulting from injury sustained to his right lower extremity in the course of his employment with the respondent; the respondent disputes the applicant has sustained primary psychological injury in the course of his employment with the respondent and the respondent disputes the applicant has sustained injury to his right lower extremity in the course of his employment with the respondent; Held – award for the respondent in respect of the applicant’s alleged primary psychological injury and award for the respondent in respect of the applicant’s alleged injury to his right lower extremity.

Decision date: 14 February 2023| Member: Jacqueline Snell

Karki v Woolworths Group Limited [2023] NSWPIC 52

Whether the applicant suffered a consequential condition in the lumbar spine and whether the applicant suffered a psychological injury and if so, was it was primary or secondary in nature; Held –the applicant suffered a consequential condition in the lumbar spine and a primary psychological injury; matter remitted to a Medical Assessor for assessment of whole person impairment.

Decision date: 14 February 2023| Member: Michael Inglis

Mizzi v State of New South Wales (New South Wales Police Force) [2023] NSWPIC 53

Claim for lump sum compensation; only issue was degree of impairment; applicant resided in South Australia when proceedings filed; accepted that the respondent was the State of New South Wales; issue raised regarding federal jurisdiction; Orellana-Fuentes v Standard Knitting Mill Pty Ltd, Attorney-General for New South Wales v Gatsby, Citta Hobart Pty Ltd v Cawthorn, Searle v McGregor, Watts v BKFY Pty Ltd and Jaffarie v Quality Castings Pty Ltd discussed; Held – a Medical Assessor (MA) assesses the degree of permanent impairment and issues a Medical Assessment Certificate; the Certificate of Determination issued by the Personal Injury Commission (Commission) merely quantifies an amount of compensation that is payable by the respondent, and orders that the compensation be paid; it is not arguable that the medical dispute involves the exercise of federal jurisdiction; claim remitted to the President of the Commission for referral to a MA.

Decision date: 14 February 2023| Principal Member: Glenn Capel

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Budek [2022] NSWPICMP 532

Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 9 March 2016; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; Medical Assessor (MA) examined and assessed the claimant; assessment of left knee, cervical spine and scarring; assessed with 3% permanent impairment; different outcome because MA was able to perform tests in person; accident did not cause left shoulder condition; MA was able to test for impingement and instability and excluded a Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd nexus with the left shoulder; Held – claimant reassessed at 3% permanent impairment; previous Medical Assessment Certificate revoked.

Decision date: 15 December 2022 | Panel Members: Member Terence O'Riain, Dr Chris Oates and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

Conner v Allianz Australia Insurance Limited [2023] NSWPICMP 35

The claimant suffered injury in a motor vehicle accident on 21 July 2017; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were neck, left shoulder, right elbow (fracture of proximal radius and ulnar nerve entrapment), right wrist (right trapezoid fracture); right index finger, right middle finger, left knee and scarring; dispute as to causation of injury to neck, left shoulder and left knee; question of whether left shoulder injury caused by overuse; Held –soft tissue injury to cervical spine caused by accident; soft tissue injury to left knee caused by accident but recovered shortly after accident; soft tissue injury and superior labrum anterior and posterior (SLAP) tear to left shoulder caused by inability to use right arm or tendency to favour right arm due to injury to right wrist and fingers; cervical spine assessed as diagnosis related estimate (DRE) cervicothoracic category I or 0% WPI; injury to the left shoulder assessed at 2% WPI; combined right upper extremity (right wrist and right index finger) assessed at 4% WPI; scarring assessed using TEMSKI scale at 2% WPI; Panel finds total WPI of 8%.

Decision date: 27 January 2023 | Panel Members: Member Susan McTegg, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb

Lucanovic v QBE Insurance (Australia) Limited [2023] NSWPICMP 38

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor accident on 14 August 2020; on 19 August 2020 complaints of left sided chest pain since accident; computed tomography (CT) scan showed intracapsular rupture of the right breast prosthesis; claimant underwent surgery to replace ruptured breast implant; review of certificate of the Medical Assessor who certified the right breast implant rupture was minor injury; Held – right breast implant caused byaccident applying legal test of causation; Briggs v IAG Limited trading as NRMA Insurance considered; definition of injury in section 1.4 including artificial member captures artificial prosthesis; damage to implant not soft tissue injury so rupture not a minor injury; in the alternative as per Reed v Allianz Australia Insurance Ltd surgery to replace implant causally related to the accident; as a result of the surgery the claimant sustained non-minor injury.

Decision date: 7 February 2023 | Panel Members: Member Susan McTegg, Dr Geoffrey Curtin and Dr Thomas Rosenthal | Injury module: Skin

Workers Compensation Medical Appeal Panel Decisions

Wallington v Macquarie University Hospital [2023] NSWPICMP 24

Psychological injury; Medical Assessor’s use of documents in file; Bojko v ICM Property Service discussed; assessment in Psychiatric Impairment Rating Scale (PIRS) categories; Ferguson v State of NSW, Parker v Select Civil considered; Held – Medical Assessment Certificate confirmed.

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

Bluescope Steel Limited v Halloran [2023] NSWPICMP 36

Workplace Injury Management and Workers Compensation Act 1998; employer appealed alleging error by Medical Assessor (MA) in failing to make deductions pursuant to section 323 in respect of two of three “separate’ injuries referred for assessment; worker cross-appealed alleging factual or legal errors in the assessment of whole person impairment and in the application of section 323 in respect of each of the injuries; on preliminary review the panel concluded that the MA not been provided with much of the evidence in the worker’s case; as there were factual and legal errors which tainted the assessments of each of the three injuries the panel reassessed each of the ‘separate’ injuries as required by the referral despite its view that the separate injuries led to one indivisible impairment; Held – Medical Assessment Certificate (MAC) revoked and new MAC issued.

Decision date: 6 February 2023 | Panel Members: Member Paul Sweeney, Dr Drew Dixon and Dr Margaret Gibson | Body system: Lumbar Spine and Scarring

Bedford v Forward RE Pty Ltd t/a Ray White Epping [2023] NSWPICMP 37

Appeal against assessments for three of the categories in the Psychiatric Impairment Rating Scale (PIRS); whether Medical Assessor erred in not finding a higher classification regarding each; Held – appellant unable to demonstrate more than a difference of opinion about which reasonable minds might differ; Ferguson v State of New South Wales applied; Medical Assessment Certificate confirmed.

Decision date: 6 February 2023 | Panel Members: Member John Wynyard, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychological/Psychiatric

Robinson v State of NSW (NSW Police Force) [2023] NSWPICMP 39

The appellant submitted that the Medical Assessor erred in his assessment with respect to the Psychiatric Impairment Rating Scale (PIRS) in the categories of self-care and personal hygiene, social and recreational activities and social functioning; Held – Panel found no error with the first two categories, but error in social functioning because of the degree of family breakdowns and domestic violence; Medical Assessment Certificate revoked.

Decision date: 9 February 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier and Dr Douglas Andrews | Body system: Psychological/Psychiatric

Secretary, Department of Communities and Justice v Bowland [2023] NSWPICMP 40

Workplace Injury Management and Workers Compensation Act 1998; employer alleges error in Medical Assessor’s (MA) Psychiatric Impairment Rating Scale (PIRS) classification for travel and social functioning and in his failure to make a section 323 deduction for a pre-existing psychological condition; as worker had a chronic psychological condition before injury as evidenced by treatment with Sertraline, MA erred in failing to make a deduction to reflect this condition; Panel assesses deductible proportion as 1/10^th.; Held – there was no error in MA’s classification of travel and social functioning; while the descriptors were spread across the classes and different opinions were possible this did not constitute either demonstrable error or the application of incorrect criteria; Jenkins v Ambulance Service of New South Wales considered; Medical Assessment Certificate revoked.

Decision date: 9 February 2023 | Panel Members: Member Paul Sweeney, Dr Nicholas Glozier and Dr Michael Hong | Body system: Psychological/Psychiatric

Mabbett v IW4U Employment Services Pty Ltd [2023] NSWPICMP 41

Appellant submitted the Medical Assessor erred with respect to his findings regarding range of movement of the left upper extremity; Panel found no error; appellant’s treating doctor’s assessment inconsistent with the evidence; Held – Medical Assessment Certificate confirmed.

Decision date: 15 February 2023 | Panel Members: Member Deborah Moore, Dr Robin Fitzsimons and Dr John Brian Stephenson | Body system: Left Upper Extremity

Motor Accidents Merit Review Decisions

Leydon v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 7

Motor Accident Injuries Act 2017; merit review; whether the insurer was entitled to suspend payment of weekly benefits under section 3.15(7); where certificate of fitness relied on by claimant related to a period that was more than 90 days before the certificate was provided by the claimant to the insurer contrary to section 3.15(5); Held – while section 3.15(5) resulted in the certificate of fitness being of no effect, having failed to issue a suspension notice as required by clause 4.58 of the Motor Accident Guidelines, the insurer was not entitled to suspend the claimant’s weekly payments under section 3.15(7); reviewable decision set aside; matter remitted to the insurer.

Decision date: 7 February 2023 | Merit Reviewer: Brett Williams

Reynolds v Allianz Australia Insurance Limited [2023] NSWPICMR 8

Motor Accident Injuries Act 2017; merit review; the claimant was injured in a motor vehicle accident on 20 January 2021; no pending claim for damages; whether claimant entitled to extension of weekly statutory payments more than 104 weeks after date of motor accident; section 3.12(2)(a); Held –no discretion to extend weekly statutory payments past 104 weeks after the date of accident where no pending claim for damages; the reviewable decision is affirmed.

Decision date: 16 February 2023 | Merit Reviewer: Susan McTegg

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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