Legal Bulletin No. 119

Issued 14 July 2023

Welcome to the one hundred and nineteenth 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 Member Decision

Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38

Workplace Injury Management and Workers Compensation Act 1998; workers compensation; appeal against Member’s decision to refer a matter for further medical assessment under section 329(1)(a) ; Skates v Hills Industries Ltd and Singh v B & E Poultry Holdings Pty Ltd considered; monetary threshold to appeal satisfied under section 352(3); DGL (Aust) Pty Ltd v Martino and Ausgrid v Parasiliti applied; leave granted to appeal against interlocutory decision under section 352(3A); Licul v Corney, Mawson v Fletchers International Exports Pty Ltd and Collingridge v IAMA Agribusiness Pty Ltd; Held – the Certificate of Determination dated 21 June 2022 is revoked; the matter is remitted to the Member, to refer the matter back to Medical Assessor Pillemer, in accordance with this decision for the sole purpose of assessing the respondent’s degree of permanent impairment in relation to her left upper extremity (left shoulder) absent any consideration of the occurrence of injury.

Decision date: 30 June 2023 | Before: President Judge Phillips

Motor Accidents non-Presidential Member Decision

Harrison v AAI Limited t/as GIO [2023] NSWPIC 313

Motor Accident Injuries Act 2017; damages assessment pursuant to section 7.6; liability admitted; 18-year-old claimant pedestrian on a footpath when a car collided with her and others in the group inflicting fatal injuries upon claimant’s best friend; no significant dispute in relation to diagnosis of significant physical and psychological injuries suffered by the claimant; dispute relating to impact of injuries on earning capacity; dispute relating to recovery of future travel expenses pursuant to section 4.5(b) for future travel to treatment providers; Held - damages assessed of $400,000 for non-economic loss with total of $1,123,930 plus regulated costs with no award for future travel expenses.

Decision date: 30 June 2023 | Before: Member Terrence Broomfield

Workers Compensation non-Presidential Member Decisions

BFX v Ashfield Baptist Homes Ltd [2023] NSWPIC 302

Workers Compensation Act 1987; psychological injury; claim for weekly payments and lump sum compensation; applicant was accused by co-worker of inappropriate touching; internal and external investigations failed to substantiate the allegation; no dispute that the applicant had a psychological injury; whether the injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline; whether the respondent’s action in conducting the investigation constituted discipline; whether it was the whole or predominant cause of the injury Held – the section 11A defence fails; applicant entitled to weekly payments and medical expenses; matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.

Decision date: 27 June 2023 | Member: Jill Toohey

Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311

Workers Compensation Act 1987; claim for weekly payments pursuant to section 37 after payment ceased on basis of respondent medicolegal report; whether accepted back injury had resolved; whether discrepancy in applicant’s case affected her satisfying onus of proof; Held – respondent’s medicolegal opinion logically flawed; aggravation of asymptomatic disc disease had not ceased; alleged discrepancy of no weight; award for the applicant.

Decision date: 29 June 2023| Member: John Wynard

Express Skips NSW Pty Ltd v iCare Workers Insurance [2023] NSWPIC 312

Workers Compensation Act 1987; application by uninsured employer in respect of notice issued by respondent pursuant to section 145(1); applicant disputed that the worker had sustained injury to right foot as alleged; applicant referred to video evidence obtained by the worker’s flat mate that was not in evidence, but that purportedly showed the worker walking around at home; evidence that the worker told his flat mate, who was also a colleague, on the day of the injury that he had injured himself and was leaving; worker’s flat mate declined to provide statement; contemporaneous medical evidence that worker’s foot was swollen, and X-Ray showed fracture; applicant did not rely on any medical evidence; Held ­­­– worker sustained injury to his right foot arising out of or in the course of his employment with the applicant on 21 September 2021; payment of weekly benefits and medical expenses by respondent were appropriate and reasonably necessary, respectively; applicant to pay respondent the sum of $39,612.35, in accordance with notice dated 17 January 2023, issued pursuant to section 145(1).

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

Shi v Transpace Pty Ltd & Ors [2023] NSWPIC 314

Claim for lump sum death benefit and interest; liability accepted; apportionment of lump sum and claims for interest to be determined; application by second respondent to rely on third statement of evidence, filed and served without leave; admission of evidence opposed by applicant and fourth respondent; second respondent initially represented by lawyer in India, and subsequently retained Australian lawyers; second respondent sought to respond to further statement of applicant, which had been admitted without objection; consideration of Kioa v West, Annetts v McCann, Ainsworth v Criminal Justice Commission, Inghams Enterprises Pty Limited v Michelle Zarb, Paul Segaert Pty Limited trading as Lidco v Narayan, Personal Injury Commission Act 2020 procedure and guiding principle; Held ­­– in the interests of justice and procedural fairness, further evidence of second respondent admitted; amended timetable for evidence and submissions issued.

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

Muliana v Nestle Australia Ltd [2023] NSWPIC 315

Claim for weekly payments of compensation and medical expenses for psychological injury; respondent relies on defences of the worker’s injury being solely attributable to serious and wilful misconduct and reasonable action being taken with respect to discipline; reference to Clyde v State of NSW on whether worker’s injury was solely attributable to serious and wilful misconduct; reference to Irwin v Director General of School Education on the test of reasonable action taken by the respondent with respect to discipline; Held – there was a combination of causes for the injury sustained by the worker in the course of his employment; the worker’s injury was not solely attributable to serious and wilful misconduct; discipline was not the whole or predominant cause of the worker’s injury and the action taken by the respondent with respect to discipline was not reasonable; award of weekly payments of compensation for the worker having no current work capacity since the date of the injury; respondent to pay the worker’s reasonably necessary medical expenses for psychological injury.

Decision date: 3 July 2023| Member: John Isaksen

Petrovska v Woolworths Group Ltd [2023] NSWPIC 317

Workers Compensation Act 1987; permanent impairment compensation; accepted right shoulder injury; claimed cervical spine injury and left shoulder consequential condition disputed; applicant also claims primary psychological injury said to arise from her treatment at work after and resulting from her physical injury; respondent alleges psychological injury is secondary, and raises defence per section 11A; ; Held – the applicant suffered cervical spine injury by way of aggravation of a pre-existing condition in the accident at issue; the applicant suffered a consequential condition to her left upper extremity (shoulder) as a result of the accepted right shoulder injury; the claimed psychological injury is a primary psychological injury; although the applicant suffers a secondary psychological injury, It is separate and distinct injury from the primary injury claimed; all claimed body systems remitted to the President of the Personal Injury Commission for referral to appropriate Medical Assessors.

Decision date: 4 July 2023 | Member: Cameron Burge

Singh v David Jones Pty Ltd [2023] NSWPIC 319

Workers Compensation Act 1987; accepted claim for cervical and lumbar spine injuries; dispute regarding bilateral shoulder injuries; section 66 claim only; respondent takes issue with “nature & conditions” claim; discussion of Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos; Held – on the basis of the applicant’s statement, deficiencies in the respondent’s Independent Medical Examination report and the opinion of the applicant’s treating specialist that bilateral shoulder injuries established and matter remitted to the President of the Personal Injury Commission for referral to a medical assessor accordingly; Held –applicant a reliable historian and preponderance of medical opinion supports relationship between current need for surgery and incident at work; section 60 (5) declaration accordingly in favour of the applicant.

Decision date: 5 July 2023 | Member: Philip Young

Nouansengsy v Gliderol International Pty Ltd [2023] NSWPIC 321

Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of a C4/5 and C5/6 discectomy and fusion; respondent accepts that the worker sustained injury to both upper limbs but not to his cervical spine; Held – worker sustained an injury to his cervical spine in the course of his employment with the respondent; the proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).

Decision date: 6 July 2023 | Member: John Isaksen

Motor Accidents Medical Review Panel Decisions

Dayan v Allianz Australia Insurance Limited [2023] NSWPICMP 292

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 28 September 2018; the dispute related to the assessment of whole person impairment (WPI); review of certificate of Medical Assessor Cameron who assessed 0% WPI; injury to ribs-fracture; head injury; cervical spine; thoracic spine; lumbar spine; right shoulder; left shoulder; left elbow; right knee; left knee; left ankle; treatment dispute re physiotherapy and hydrotherapy; Held – even if head injury sustained it has resolved; no impairment of cognitive function; no abnormal Glasgow Coma Score, no post-traumatic amnesia and no brain imaging abnormality; claimant sustained soft tissue injury tocervical spine, cervical spine; thoracic spine; lumbar spine; right shoulder; left shoulder; left elbow; right knee; left knee; left ankle; all musculoskeletal injuries assessed at 0% WPI; claimant had made good progress with recovery; whilst the claimant remained symptomatic in part, he had regained functional mobility and ongoing passive treatment unlikely to be of benefit; hydrotherapy and physiotherapy related to the injury caused by the accident but not reasonable or necessary in the circumstances.

Decision date: 30 May 2023 | Panel Members: Member Susan McTegg, Dr John Hugh O’Neill and Dr Clive Kenna | Injury module: Spine, Upper and Lower Limb and Brain injury; Treatment Type: Physiotherapy Treatment

Ralevski v QBE Insurance (Australia) Limited [2023] NSWPICMP 293

Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 26 June 2019; the dispute related to the assessment of whole person impairment (WPI); review of certificate of Medical Assessor (MA) Chan who assessed 10% WPI; dispute as to lumbar spine injury; dispute as to causation of carpal tunnel syndrome; dispute as to causation of left hip symptoms of trochanteric bursitis and gluteus medius bursitis; Held – sustained soft tissue injury to the cervical spine with exacerbation of pre-existing osteoarthritis with referred radicular symptoms of paraesthesia to the right upper limb; no evidence of any prior lumbar symptoms; delay in complaint because focused on cervical spine; found soft tissue injury to lumbar spine caused by accident; accident not cause of right carpal tunnel syndrome; neurophysiological studies not determinative of a carpal tunnel diagnosis; provocative clinical tests for carpal tunnel syndrome negative bilaterally; symptoms of paraesthesia to the right upper limb referred from the cervical spine; no clinical findings to support diagnosis of carpal tunnel syndrome in left hand; bilateral carpal tunnel syndrome not caused by accident; left hip not symptomatic; left hip normal on examination; any injury to left hip; trochanteric bursitis, gluteus medius bursitis not caused by accident; no evidence cervical radiculopathy; non-verifiable radicular complaints; assessed as diagnosis related estimate (DRE) category II; assessed at 5% WPI; lumbar spine assessed as DRE category 1; assessed at 0% WPI; Certificate of MA revoked; total 5% WPI.

Decision date: 30 May 2023 | Panel Members: Member Susan McTegg, Dr Alan Home and Dr Chris Oates| Injury module: Spine and Upper Limb

Khanna v Insurance Australia Limited t/as NRMA Insurance (No 1 and No 2) [2023] NSWPICMP 294

Motor Accidents Compensation Act 1999; medical assessment of treatment and care and insurer’s application for review under section 63 of certificate issued by Medical Assessor (MA) Carter;(1); claimant’s application for review of the assessment of whole person impairment (WPI); (2); claimant injured in rear end car accident on 17 August 2016; MA found the claimant’s diabetic condition had been aggravated by the accident and that some of his post-accident treatment and care needs were related to the accident and that the claimant had a WPI of 2%; significant issue of causation; claimant had been diagnosed with diabetes since 1999; claimant had poor control of his diabetes and had been diagnosed with diabetic retinopathy before the accident and diabetic peripheral neuropathy after the accident; claimant alleged physical injuries and worsened cardiac condition led to deterioration in his ability to exercise, weight gain and deterioration of his diabetic condition; Held – claimant self-represented and provided no medico-legal or treatment medical evidence linking his car accident with any of his post-accident diabetic issues; Panel adopted evidence review of 5,000 pages of document including from his treating endocrinologist and other specialists and haemoglobin readings before and after the accident; Panel not satisfied claimant suffered a deterioration of his diabetes because of the accident; claimant’s weight had not increased since the date of the accident; claimant had alleged diabetes has worsened in previous court proceedings and claims; claimant’s blood sugar readings did not demonstrate worsening of his condition and development of peripheral neuropathy after the accident was a part of the disease process and not accident related; panel found no treatment and care needs were related to the accident and there was no WPI arising from the accident; certificates of MA revoked; no issue of principle.

Decision date: 22 June 2023 | Panel Members: Member Belinda Cassidy, Dr David Gorman and Dr Margaret Gibson | Injury module: Digestive System

Khanna v Insurance Australia Limited t/as NRMA Insurance (No 3 and No 4) [2023] NSWPICMP 302

Motor Accidents Compensation Act 1999; medical assessment of treatment and care (3) and whole person impairment (4) by Medical Assessor (MA) Herman and claimant’s review under section 63; claimant injured in rear end car accident on 17 August 2016; MA found no cardiac injuries caused by the accident and therefore none of the claimant’s extensive post-accident cardiac treatment was related to the accident and there was 0% whole person impairment (WPI); significant issue of causation; claimant had heart attack in 2009 after first car accident; claimant had multiple stents and cardiac therapy thereafter; claimant sustained chest injury in car accident and alleged chest injury caused re-stenosis or other damage to his heart leading to further angioplasty and open-heart surgery and subsequent deterioration of his cardiac and general health; Held –  claimant self-represented and provided no medico-legal nor treatment medical evidence linking his car accident with any of his post-accident cardiac treatment; Panel adopted evidence review of 5,000 pages of document including his treating cardiologist’s multiple letters to the GP and blood pressure readings before and after the accident; Panel satisfied claimant injured his chest in the accident but not satisfied his cardiac stents were damaged in the accident or that re-stenosis occurred because of the accident; Panel not satisfied hypertension caused by the accident; Panel not satisfied that the claimant’s cardiac condition which had worsened after the accident, was worsened because of the accident; Certificates of MA confirmed; no issue of principle.

Decision date: 30 June 2023 | Panel Members: Member Belinda Cassidy, Dr David Gorman and Dr Richard Haber | Injury module: Cardiovascular System

Khanna v Insurance Australia Limited t/as NRMA Insurance (No 5 and No 6) [2023] NSWPICMP 295

Motor Accidents Compensation Act 1999; medical assessment of treatment and care (5) and whole person impairment (WPI) (6) by Medical Assessor (MA) Cameron and claimant’s review under section 63; claimant injured in rear end car accident on 17 August 2016; MA had determined some care related to the accident and reasonable and necessary and that the claimant’s WPI was 2%; issue of causation due to multiple previous accidents and pre-existing conditions; review of two medical assessments proceedings heard with review of four other medical assessment proceedings; one re-examination conducted; Held – Panel adopted re-examination findings and review of evidence in all proceedings; Panel satisfied the claimant injured his head in the accident but not satisfied any brain injury or that dizziness and nose bleeds were caused by the head injury; Panel satisfied claimant sustained soft tissue injury to cervical and lumbar spine but no current impairment; Panel satisfied claimant injured his left shoulder but not his right shoulder in the accident; Panel satisfied claimant sustained soft tissue injury to his chest which does not attract a WPI finding; In proceedings (5); Panel satisfied soft tissue injuries to neck, back and left shoulder resulted the need for some treatment and care and that the treatment and care provided for the first 12 months after the accident was reasonable and necessary; in proceedings (6) Panel found 0% WPI; Certificates of MA revoked; no issue of principle.

Decision date: 22 June 2023 | Panel Members: Member Belinda Cassidy, Dr David Gorman and Dr Margaret Gibson | Injury module: Treatment Type: Radiological Investigation, Facet/z joint Injections, Medication Prescription, Massage, Physiotherapy Treatment, Domestic Assistance and Medical Specialist consultation

Tran v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 297

Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and insurer’s review under section 63; claimant injured in accident in June 2017; claimant involved in collision with a car that turned into her car and alleged injuries to her neck, lower back and right shoulder; Medical Assessor (MA) Rosenthal found inconsistency during his examination and allowed 2% for WPI; application for review on basis no interpreter present and inconsistencies not properly brought to the claimant’s attention; Held – Panel satisfied claimant injured her neck, back and right shoulder; no evidence of pre-accident impairments; cervical and lumbar spines assessed at diagnosis related estimates (DRE) Category I (0%) and right shoulder 11%; no evidence of inconsistency during course of examination or between formal examination and informal observation; difference in range of motion over last five years due to fear avoidance behaviour and resultant inactivity leading to stiffness in the soft tissue injuries of the shoulder and muscle deconditioning; assessment of MA revoked.

Decision date: 23 June 2023| Panel Members: Member Belinda Cassidy, Dr Les Barnsley and Dr David Gorman | Injury module: Spine and Upper Limb

BHQ v AAI Limited t/as GIO [2023] NSWPICMP 298

Motor Accident Injuries Act 2017; review of medical assessment about threshold psychological injury in accordance with section 7.26; where a Medical Assessor (MA) certified that persistent depressive disorder was not caused by the accident and that psychological treatment was not reasonable and necessary in the circumstances; Briggs v IAG Limited t/a NRMA Insurance applied; Held – the claimant’s pre-existing persistent depressive disorder was not materially contributed to by the accident; the claimant suffers adjustment disorder with anxiety as a result of the accident; a threshold injury; eight sessions of psychological treatment is reasonable and necessary in the circumstances and relates to the adjustment disorder; MA’s certificates revoked and new certificates issued.

Decision date: 27 June 2023| Panel Members: Senior Member Brett Williams, Dr Michael Hong and Dr Glenn Smith| Injury module: Mental and Behavioural; Treatment Type: Psychological

Workers Compensation Medical Appeal Panel Decisions

Hejazi v Rail Corporation New South Wales [2023] NSWPICMP 291

Whether Medical Assessor (MA) correctly tallied applicable modifiers of Table 4.2 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 by firstly combining the applicable modifiers to achieve a single amount that the MA then combined with the whole person impairment; MA otherwise assessed appellant to have; Appeal Panel held MA was correct to do so; Held – Medical Assessment Certificate confirmed.

Decision date: 26 June 2023 | Panel Members: Member Marshal Douglas, Dr Drew Dixon and Dr David Crocker | Body system: Cervical Spine

VIP Drum Reconditioners Pty Ltd v Muthugala [2023] NSWPICMP 299

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding that no proportion of respondent’s permanent impairment was due to a previous injury or pre-existing abnormality or condition; Held – appeal Panel found MA did not err; Medical Assessment Certificate upheld.

Decision date: 29 June 2023 | Panel Members: Member Marshal Douglas, Dr John Brian Stephenson and Dr Mark Burns| Body system: Right Upper Extremity and Scarring (TEMSKI)

Poole v State of New South Wales (NSW Police Force) [2023] NSWPICMP 300

Whether Medical Assessor (MA) erred with respect to his rating of the appellant’s impairment in psychiatric impairment rating scale (PIRS) category of social functioning; Held – it was open to the MA to make the rating he did based on evidence before him and for the reasons he explained; Medical Assessment Certificate upheld.

Decision date: 29 June 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Graham Blom | Body system: Psychiatric/Psychological

Grujevski v HealthShare NSW [2023] NSWPICMP 301

Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; appellant alleged error by the Medical Assessor in respect of the assessment of the deduction under section 323 because he simply deducted a prior settlement from a prior injury. Held – the Appeal Panel found this to be in error. Medical Assessment Certificate revoked.

Decision date: 30 June 2023 | Panel Members: Member Jane Peacock, Dr James Bodel and Dr Margaret Gibson | Body system: Lumbar Spine and Left Upper Extremity

Wentworth Shire Council v Gray [2023] NSWPICMP 303

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor incorrectly made deduction under section 323(1) by deducting proportion of respondent’s worker permanent impairment that was due to pre-existing condition from respondent’s binaural hearing impairment (BHI) rather than respondent’s whole person impairment (WPI); whether Medical Assessor erred by assuming pursuant to section 323(2) that the proportion to be deducted under section 323(1) was 10% because to make that assumption was at odds with the evidence; Held – Appeal Panel found that the Medical Assessor was correct to assume under section 323(2) that the deductible proportion was 10%; Appeal Panel found that Medical Assessor erred by making the deduction under section 323(1) to the respondent’s BHI rather than the respondent’s WPI; Medical Assessment Certificate revoked.

Decision date: 3 July 2023 | Panel Members: Member Marshal Douglas, Dr Robert Payten and Dr Brian Williams | Body system: Hearing

Squire-Wilson v Menz [2023] NSWPICMP 304

Appeal from assessment of whole person impairment (lumbar spine, scarring); whether Medical Assessor erred in assessing a DRE category III impairment by reason of surgery at L4/5 and L5/S1; whether he erred in assessing scarring as a result of the surgery; whether surgery resulted from injury; Held –Medical Assessment Certificate revoked.

Decision date: 5 July 2023 | Panel Members: Member Richard Perrignon, Dr Neil Berry and Dr Mark Burns | Body system: Cervical Spine, Right Upper Extremity, Right Lower Extremity and Skin Scarring

Richards v Henson Sawmilling Pty Ltd [2023] NSWPICMP 305

Claim for additional whole person impairment with regard to a total knee replacement; whether Medical Assessor failed to assess additional impairments for a 1 cm thigh discrepancy and a discrepancy in leg length; whether Medical Assessor had failed to refer to or consider various clauses of the Guides; Held – Medical Assessors presumed to be conversant with the relevant guides and to properly apply them; 1 cm thigh discrepancy not available in diagnosis-based estimate cases such as knee replacements; failure to explain leg length discrepancy entitlement a demonstrable error; appellant re-examined; no leg length discrepancy found: Medical Assessment Certificate confirmed.

Decision date: 5 July 2023 | Panel Members: Member John Wynyard, Dr Greg McGroder and Dr Roger Pillemer | Body system: Left lower extremity and Scarring

Henneberry v Duromer Products Pty Ltd [2023] NSWPICMP 306

Workplace Injury Management and Workers Compensation Act 1998; appellant alleges error by the Medical Assessor in deducting 50% pursuant to section 323 for the contribution to whole person impairment (WPI) of a supervening work injury not included in the Referral; both parties accept that this constitutes error; no assertion of error in the measurement of WPI; Held – panel accepts the assessed WPI and makes no deduction pursuant to section 323 or for the effects of the further work injury; subsidiary issue as to the date of injury not determined by the Panel as it is solely within the jurisdiction of the Commission.

Decision date: 5 July 2023 | Panel Members: Member Paul Sweeney, Dr John Brian Stephenson and Dr Mark Burns | Body system: Right and Left Upper Extremity

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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