Legal Bulletin No. 122

Issued 4 August 2023

Welcome to the one hundred and twenty 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

Secretary, Department of Communities and Justice v Hammond [2023] NSWSC 871

Judgments and orders; consent orders; where first defendant injured at work; workers compensation claim; appeal against determination of Appeal Panel; failure to apply SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; failure to give required reasons; jurisdictional error of Appeal Panel; Held – decision and statement of reasons of Appeal Panel quashed; medical dispute remitted to differently constituted Appeal Panel for re-determination.

Decision date: 28 July 2023 | Before: Schmidt AJ

Scott v Ivy Contractors Pty Ltd [2023] NSWSC 891

Administrative Law; medical assessment; judicial review of decision of medical Appeal Panel; where Appeal Panel accepted error alleged in medical assessment and assessed claimant afresh; function of appeal panel confined to determining grounds raised by the appeal; failure to give adequate reasons; Held – decision of appeal panel is set aside; matter remitted back to the Commission to be dealt with according to law.

Decision date: 1 August 2023 | Before: Schmidt AJ

Presidential Member Decisions

Racing NSW v Goode [2023] NSWPICPD 43

Workers compensation; section 289A of the Workplace Injury Management and Workers Compensation Act 1998; whether the Commission may deal with a previously unnotified Anshun estoppel argument; principles in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services considered and applied; whether claims for medical or related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 are estopped by failure to claim in earlier proceedings; Geary v UPS Pty Ltd, Port of Melbourne Authority v Anshun Pty Ltd, Habib v Radio 2UE Sydney Pty Ltd, Secretary, Department of Communities and Justice v Miller & Anor (No 5), and Miller v Secretary, Department of Communities and Justice (No 10) applied and considered; Held – the Certificate of Determination dated 10 June 2022 is confirmed.

Decision date: 28 July 2023 | Before: President Judge Phillips

Al Hadidi v Form 1 Building and Construction Pty Ltd [2023] NSWPICPD 42

Workers compensation; civil proceedings; a tribunal can accept uncorroborated testimony Chanaa v Zarour; Woolworths Ltd v Warfe and Bi-Lo Pty Ltd v Brown discussed; tribunal not bound to accept evidence that was not the subject of cross-examination; Insurance Australia Limited t/as NRMA Insurance v John Checchia and Masterton Homes Pty Ltd v Palm Assets Pty Ltd applied; evidence may be rejected if it is inconsistent with accepted evidence; Jackson v McDonald’s Australia Ltd applied; where evidence is unreliable, it is open to the tribunal to look for assistance from other evidence; Devries v Australian National Railways Commission applied; no necessity for the Member to advert to an adverse finding if the risk of the finding is apparent; Ucar v Nylex Industrial Products Pty Ltd applied; Held – the Member’s Certificate of Determination dated 28 June 2022 is confirmed.

Decision date: 26 July 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

Allianz Australia Insurance Limited v Wong [2023] NSWPIC 106

Settlement approval; 30-year-old male; claimant riding motorcycle through intersection when insured vehicle merged to the left colliding with the motorcycle; liability wholly admitted; right wrist fracture and soft tissue injuries to neck, right shoulder, right elbow and right knee; non-minor (now threshold) injury; plaster cast and physiotherapy; 2% whole person impairment so no entitlement to non-economic loss; claimant returned to work after one month on reduced hours; full duties from 3 – 6 months; occasional time off work for wrist stiffness; past economic loss; future loss of earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved for $164,000.

Decision date: 3 March 2023 | Member: Gary Patterson

Myint v Insurance Australia Limited t/as NRMA [2023] NSWPIC 170

Motor Accident Injuries Act 2017; assessment of damages; liability not in issue; claim for non-economic loss; past and future economic loss; claimant a young woman born in 2001 suffered serious injuries as a result of motor accident occurring on 31 December 2019; serious abdominal injury leading to surgery; left arm fracture and spinal injury; T12/L1 chance fracture; surgery to left humeral fracture including open reduction and internal fixation; surgery to spine via T12/L1 pedicle screw internal fixation and interbody fusion; main ongoing concern centred on spinal injury; claimant’s career aspirations centred on becoming an enrolled nurse, preferably with the Australian Armed Forces; claimant found to be a reliable witness; Held – insurer’s assertion that a buffer be awarded for future economic loss rejected; total of damages awarded is $1,004,157 plus costs of $79,746.70.

Decision date: 24 March 2023 | Member: Elizabeth Medland

Insurance Australia Limited T/as NRMA Insurance v Seaman [2023] NSWPIC 359

Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant sustained fracture of third metacarpal of the left hand and fracture of the lateral process of the talus of the left ankle;claimant farmer and wool classer; unfit for work for seven weeks; fit to continue full time work as farmer; no entitlement to non-economic loss; claim economic loss only; settlement on basis unfit for work for seven weeks and on basis likely to retire five years early with additional buffer of $20,000 and allowance for loss of superannuation benefits; Held – settlement within range of likely potential damages assessment if claim was to proceed to assessment; settlement just fair and reasonable; settlement approved.

Decision date: 14 July 2023 | Member: Susan McTegg

Workers Compensation non-Presidential Member Decisions

Shin v The Star Entertainment Group Ltd [2023] NSWPIC 362

Workers Compensation Act 1987; claim for weekly benefits pursuant to section 37; claim for section 60 expenses; issues in relation to resolution of injury and incapacity and residual earning capacity; consideration of applicant’s statements, medical reports and other treatment records, vocational and functional capacity reports, certificates of capacity, claim correspondence, Deed of Release and wage material; Wollongong Nursing Home Pty Ltd v Dewar, DHL Excel Supply Chain (Australia) Pty Ltd v Hyde and Greif Australia Pty Ltd v Ahmed considered; Held – the applicant’s left shoulder injury has not resolved; the applicant remains partially incapacitated for work; the applicant is entitled to ongoing benefits of weekly compensation pursuant to section 37; the applicant is also entitled to medical and related expenses pursuant to section 60.

Decision date: 20 July 2023 | Member: Anne Gracie

Gray v Barry Bros Specialised Services Pty Ltd [2023] NSWPIC 364

Workers Compensation Act 1987; claim for neck and back injuries; claim for compensation pursuant to section 66; parties reach agreement in relation to claim for further permanent impairment of the back; consideration of applicant’s statements, other statements and factual material, claim correspondence, as well as medical reports and other treatment records; consideration of whether the applicant sustained an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997; and to which his employment with the respondent was a substantial contributing factor; consideration of the rule in Jones v Dunkel; consideration of the persuasion required for the applicant to overcome his burden of proof; consideration of the caution to be given when reviewing clinical records; Jones v Dunke, Manly Council v Byrne, State Bank of NSW v Brown, Drca v KAB Seating Systems Pty Ltd, Davis v Council of the City of Wagga Wagga, and Mason v Demasi considered; Held – the applicant did not sustain an injury to his neck arising out of or in the course of his employment with the respondent on 17 November 1997, and to which his employment was a substantial contributing factor; there will be an award in favour of the respondent with respect to the applicant’s claim pursuant to section 66 for any permanent impairment of the neck; in accordance with the parties’ agreement, there will however also be an award in favour of the applicant with respect to his claim pursuant to section 66 for further permanent impairment of the back; declaration pursuant to section 162(1) also made.

Decision date: 24 July 2023 | Member: Gaius Whiffin

Holmes v Goodstart Early Learning Ltd [2023] NSWPIC 365

Workers Compensation Act 1987; whether a proposed biopsychosocial program for the applicant’s work-related primary psychological injury was one of the medical or related treatment types defined in section 59, namely, therapeutic treatment given by direction of a medical practitioner; if so, whether the program was reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent within the meaning of section 60; Western Suburbs Leagues Club Illawarra Ltd v Everill, Bartolo v Western Sydney Area Health Service, Rose v Health Commission (NSW), Woollahra Council v Beck, State of New South Wales (Central Coast Local Health District) v Bunce, Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, and Diab v NRMA Ltd considered and applied; Held – the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program is one of the medical or related treatment types defined in section 59, namely, therapeutic treatment given by direction of a medical practitioner; the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 10 February 2020 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program.

Decision date: 24 July 2023 | Member: Anthony Scarcella

Leonardi v Moran Australia (Residential Aged Care) Pty Ltd [2023] NSWPIC 369

Workers Compensation Act 1987; injury to the lumbar spine; liability for proposed lumbar spine surgery disputed; section 4;section 60; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Ltd considered; Held – within the meaning of section 60 the L4/5 discectomy and L5/S1 foraminotomy surgery as recommended by Dr Vanessa Perotti is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 8 March 2021.

Decision date: 25 July 2023 | Member: John Turner

Dietz v Hy-Tec Industries [2023] NSWPIC 370

Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s right shoulder; whether requested right C6/C7 perineural cortisone injection is reasonably necessary to address the applicant’s injury; Held – the requested right C6/C7 perineural cortisone injection is reasonably necessary to address the applicant’s accepted right shoulder injury; respondent to pay the costs of and incidental to the requested right C6/C7 perineural cortisone injection pursuant to section 60.

Decision date: 25 July 2023 | Member: Karen Garner

Rad v FreshFood Management Services Pty Ltd [2023] NSWPIC 371

Workers Compensation Act 1987; applicant alleging psychological injury arising out of a course of bullying and harassment by a fellow employee; whether applicant suffered from a genuine psychological injury or whether his symptoms were merely a grievance arising out of a reasonable promotion process conducted by the respondent; section 4 and 11A; Held – the applicant had established that his symptoms were a psychological injury arising out of his employment; the respondent failed to make out a defence pursuant to section 11A; award will be for payments of compensation for the applicant together with section 60 expenses; Austin Thazin-Aye v Workcover Authority (NSW), Stuart v NSW Police Service, and AH Beard Pty Limited v Iljasov applied.

Decision date: 26 July 2023 | Member: Christopher Wood

McIlrick v Aruma Services NSW Ltd [2023] NSWPIC 372

Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of L5/S1 spinal fusion; respondent disputes that proposed surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).

Decision date: 26 July 2023 | Member: John Isaksen

Schwartz v Secretary, Department of Communities and Justice [2023] NSWPIC 373

Workers Compensation Act 1987; claim for psychological injury; claim for lump sum compensation for permanent impairment pursuant to section 66; District Court has made orders under both section 26(3) and 26(5) of the Personal Injury Act 2020 (the 2020 Act); consideration of whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the 2020 Act) if it determined the dispute raised by the applicant in the Application to Resolve a Dispute; consideration of applicant’s statement, medical reports and other treatment records, factual evidence, and claim correspondence; Orellana-Fuentes v Standard Knitting Mills Pty Ltd, Mahal v State of New South Wales (No 5), Fletcher International Exports Pty Limited v Lee, Citta Hobart Pty Limited v Cawthorn, State of New South Wales v Kanajenahalli, and Ritson v State of New South Wales considered; Held – opinion given that the Commission is not able to determine the dispute which is the subject of these proceedings because it would be exercising federal jurisdiction in doing so, as described in section 75 of the Constitutionand defined in section 25 of the 2020 Act; opinion reinforced by the orders made by the District Court pursuant to section 26(3) of the 2020 Act, which granted leave for the dispute to be made to the Court as its determination by the Commission would involve an exercise of federal jurisdiction; proceedings dismissed as a result pursuant to section 54 of the 2020 Act, as misconceived and lacking in substance.

Decision date: 26 July 2023 | Member: Gaius Whiffin

Eddy v The Trustee for The Trustee for The Packcentre Unit Trust ATF The Packcentre Unit Trust [2023] NSWPIC 374

Claim for prospective treatment expenses being the cost of proposed bilateral hip surgery; the applicant had an underlying and asymptomatic condition of avascular necrosis; whether the need for surgery arose from a workplace injury; if so was it the main contributing factor; Held – found the workplace injury was the main contributing factor to the aggravation of the underlying disease; the need for surgery was the direct result of the aggravation; respondent ordered to pay for the bilateral hip replacement surgery.

Decision date: 26 July 2023 | Member: Lea Drake

Motor Accidents Medical Review Panel Decisions

Eyles v AAI Limited t/as GIO [2023] NSWPICMP 331

Motor Accident Injuries Act 2017; review of medical assessment about treatment under section 7.26; whether proposed L5/S1 facet blocks are reasonable and necessary in the circumstances and relate to injury caused by the accident; Held ­­– it is more probable than not that asymptomatic L5/S1 spondylolisthesis with chronic bilateral pars defects had been materially contributed to, by way of aggravation, as a direct consequence of the claimant’s altered gait that has resulted from his accident caused pelvic fractures; while the accident was not the cause of the L5/S1 spondylolisthesis with chronic bilateral pars defects, it could have been a contributing cause, which is more than negligible, and was a contributing cause, that was more than negligible; but for the accident, it is probable that the claimant would not have required the proposed L5/S1 facet blocks; the accident made a material contribution to the need for the treatment; the treatment relates to injuries caused by the accident; the treatment is reasonable and necessary in the circumstances.

Decision date: 14 July 2023 | Panel Members: Senior Member Brett Williams, Dr Drew Dixon and Dr Margaret Gibson | Injury module: Treatment Type: Surgery

Malta v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 333

Claimant was a driver in a stationary car hit from behind; injuries reported to neck, spine left knee and right shoulder; Motor Accident Injuries Act 2017; Held – claimant’s injuries caused by the motor accident and give rise to a permanent impairment which is not greater than 10%; soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, and rotator cuff injury to the right shoulder;  claimant’s left knee injury not caused by the motor accident; claimant first complained of left knee some three or four months after the motor vehicle accident; claimant’s delay in left knee presentation not medically consistent with soft tissue injury from direct trauma of the subject accident; original medical certificate set aside; review panel issued a new certificate.

Decision date: 18 July 2023 | Panel Members: Member Ray Plibersek, Dr Drew Dixon and Dr Shane Moloney | Injury module: Spine, Upper and Lower Limb and Skin

Warner v Insurance Australia Limited t/as NRMA Insurance (No 1) [2023] NSWPICMP 334

Motor Accident Injuries Act 2017; medical assessment of treatment disputes and claimant’s application for review under section 7.26; claimant knocked off moped in June 2019 fracturing L1, L3 and coccyx; four separate treatment disputes referred for assessment in original proceedings; one referred to another Medical Assessor (broken CPAP machine); three disputes referred to Medical Assessor (MA) Harrington who determined new mattress was related and reasonable and necessary but home modifications and lymphatic massage machine not related and not reasonable and necessary; preliminary issue about what was the subject of the review application and what had been allowed through to the Panel; claimant’s application for review did not challenge the new mattress assessment; insurer did not apply for review of that decision; Held – panel determined it had no power to review the new mattress assessment; consideration of section 7.17; 7.26(5); Wood v NRMA and section 42 of the Personal Injury Commission Act 2020;  completion of home renovations commenced before the accident was not treatment within the meaning of section 1.4 and not “for the injured person” within the meaning of section 3.24(1); hire or purchase of a massage machine needed to treat claimant’s wife’s lymphoedema; before accident claimant provided massage services to her gratuitously; panel found massage machine not treatment “for the injured person” within the meaning of section 3.24(1) and section 3.26 did not apply as this was not domestic services being provided but health or nursing services; disputes about section 3.26 are a merit review matter not a medical assessment matter in accordance with schedule 2; certificates of MA Harrington concerning home modifications and lymphatic massage machine revoked.

Decision date: 18 July 2023 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney and Dr Margaret Gibson | Injury module: Treatment Type: Equipment, Home Modifications

Warner v Insurance Australia Limited t/as NRMA Insurance (No 2) [2023] NSWPICMP 335

Motor Accident Injuries Act 2017; medical assessment of treatment dispute and claimant’s application for review under section 7.26; single medical assessment about claimant’s referral to a rehabilitation specialist; Medical Assessor (MA) Harrington determined referral not related, not reasonable and necessary and would not improve recovery of claimant; Held – no medical examination necessary; dispute about a $200 consultation with a doctor who has seen the claimant before; Sydney Trains v Batshon distinguished; consideration of section 42(1) and (4) of the Personal Injury Commission Act 2020 and Rule 128 of the Personal Injury Commission Rules; Panel has no power to revoke or confirm section 3.28(3) decision as schedule 2(2)(c) has been repealed with no saving provision; referral concerned a further referral to a rehabilitation specialist who had provided significant input into claimant’s treatment; referral related to neck (causation disputed) and back (causation conceded); Panel found referral was related (in part) to injuries sustained in the accident; Panel found referral for single consultation was reasonable and necessary in the circumstances; Clampett v WorkCover Authority and Diab v NRMA Ltd applied; certificate of MA Harrington revoked.

Decision date: 18 July 2023 | Panel Members: Member Belinda Cassidy, Dr Shane Moloney and Dr Margaret Gibson | Injury module: Treatment Type: Equipment, Specialist Referral

CIC Allianz Insurance Limited v Mulford [2023] NSWPICMP 336

Assessment of whole person impairment (WPI) under the Motor Accident Injuries Act 2017; on 25 January 2018 concrete truck ran over left foot; pre-existing bilateral club feet; subsequent fall in shower causing right shoulder injury; causation of surgical procedures; causation of fall in shower noting pre-existing bilateral club feet; causation neck injury; causation back injury; Held – crush injury aggravated talo-navicular arthritis leading to surgery; neck strain caused by fall over chair at time injury; fall in shoulder occurred because taking full weight on other leg after surgery to left foot causing full thickness rotator cuff tear; jarred back when fell in shower; altered gait due to left foot injury and subsequent surgery resulted in back pain; soft tissue injury to cervical spine assessed as Diagnosis Related Estimate (DRE) cervicothoracic category 1 or 0% WPI; right shoulder assessed as 8% WPI; lumbar spine assessed as DRE lumbosacral category 1 or 0% WPI; ankylosis of left ankle 4% WPI and ankylosis of left foot 4% WPI added to give 8% WPI; complete sensory loss in distribution of superficial peroneal nerve 2% WPI combined with complete sensory loss of the sural nerve 1% WPI giving a total of 3% WPI for peripheral nerve injury; combining 8% WPI and 3% WPI gives 11% WPI for left foot/ankle; total impairment 18% WPI.

Decision date: 18 July 2023 | Panel Members: Member Susan McTegg, Dr Drew Dixon and Dr Neil Berry | Injury module: Spine, Upper and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Hmaydan [2023] NSWPICMP 337

Motor Accident Injuries Act 2017; injury on 20 April 2021 from rear-end collision; threshold injury dispute; claimant re-examined; history of right shoulder, cervical and lumbar spine pain; low back pain noted by GP three days prior to motor accident; motor accident caused cervical spine injury; pre (2018) and post (2021) MRI scans show annular tear developed during this period; motor accident capable of causing annular tear; cervical spine asymptomatic at time of accident; examination of cervical spine showed complaints in C5/6 level and consistent with pain from the neck irritating adjoining nerves consistent with caused by annular tear; observations in Marques v QBE Insurance (Australia) Ltd applied; findings made that motor accident caused annular tear which was an injury to a ligament and cartilage; motor accident caused a soleus muscle tear which was a threshold injury; other injuries held to be threshold injuries; Held – original assessment confirmed.

Decision date: 18 July 2023 | Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb

Allianz Australia Insurance Limited v Ellul [2023] NSWPICMP 338

Motor Accident Injuries Act 2017 (MAI Act); injury on 21 January 2021 when claimant on bike became wedged between two vehicles and fell to ground; claimant re-examined; prior left knee reconstruction; claim for costs of surgical repair and determination that injuries were not threshold; original Medical Assessor found threshold injuries and made orders for insurer to pay costs of surgery; insurer filed review purportedly limited to treatment disputes; claimant submitted all issues open on review; discussion of review provisions in the MAI Act; reference to Meeuwissen v Boden and Wood v Insurance Australia Group Ltd; review included all matters in dispute; findings on causation of treatment connected with the pathology caused by the motor accident; findings made of nature of left knee injury; consideration of left knee condition prior to motor accident; findings made that accident caused tear of left knee ligament reconstruction; motor accident materially caused need for surgery; AAI Ltd v Phillips applied; discussion of factors why proposed surgery reasonable and necessary; Held – original assessment on treatment confirmed; finding made that claimant injuries were not threshold; threshold assessment revoked.

Decision date: 18 July 2023 | Panel Members: Principal Member John Harris, Dr Drew Dixon and Dr Thomas Rosenthal | Injury module: Upper and Lower Limb; Treatment type: Surgery

Lee v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 339

Motor Accidents Compensation Act 1999; pedestrian injury on 24 June 2017 falling to the ground; issue of permanent impairment of mastication, original medical assessor found no restriction in diet with no assessable impairment; claimant accepted that she did not notice teeth pain until approximately two months post-accident; teeth pain should have been noticed when eating if injured despite claimant suffering lumbar fracture; finding that tenderness at tooth 24 likely due to pre-existing condition; claimant’s diet not limited to soft or semi-solid foods; Panel not satisfied of any permanent impairment due to mastication; Held – original assessment confirmed.

Decision date: 19 July 2023 | Panel Members: Principal Member John Harris, Dr Shane Moloney and Dr David Sykes | Injury module: Teeth

QBE Insurance (Australia) Limited v Saltan [2023] NSWPICMP 340

Motor Accident Injuries Act 2017; injury on 14 December 2019 from side on collision; various soft tissue injuries; only basis for finding of a non-threshold injury was left shoulder condition; claimant asserted that he suffered left shoulder pain since motor accident which deteriorated two years later; MRI scan then showed partial thickness tear of the supraspinatus; absence of recorded complaint of left shoulder symptoms for two years relevant but not determinative of causation; AAI Ltd v McGiffen applied; left shoulder not mentioned in claim form; Bugat v Fox referred to; clinical note in November 2021 referred to five-week history of left shoulder pain; mechanism of injury to left shoulder not medically plausible; finding made that left shoulder not injured; Held – original assessment revoked; finding made that claimant suffered non-threshold injuries.

Decision date: 20 July 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr John Garvey | Injury module: Spine, Upper Limb and Digestive system

Insurance Australia Limited t/as NRMA Insurance v McTackett [2023] NSWPICMP 341

Motor Accidents Compensation Act 1999; review of medical assessment concerning permanent impairment and surgery accordance with section 63; claimant suffered neck injury in September 2004 motor accident; two attendances on GP then certified fit for work four days after accident; no further attendances on GP until after work incident in May 2005; radiology after 2005 incident revealed C4/5 and C5/6 disc pathology; off work for two months; subsequent symptoms; C4/5 and C5/6 cervical disc replacement surgery performed in April 2021; Medical Assessor (MA) found WPI greater than 10% and treatment both reasonable and necessary and related to injury caused by the accident;  State Government Insurance Commission v Oakley, Slade v Insurance Australia Ltd t/as NRMA, Owen v Motor Accidents Authority of NSW, and AAI Limited t/as AAMI v Phillips applied; Held – motor accident resulted in musculoligamentous neck strain with no disc involvement and without radicular complaint; it was more probable than not that the disc pathology at C4/5 and C5/6 levels was caused by the work incident on 27 May 2005; the third Oakley category applies; subsequent injury gave rise to 25% permanent impairment; accident caused impairment was 5%; MA certificates relating to permanent impairment and surgery being related to injury caused by the motor accident revoked; new certificates issued determining that permanent impairment as a result of the injury to the cervical spine caused by the motor accident is not greater than 10% and surgery does not relate to the injury caused by the motor accident; certificate with respect to whether the surgery was reasonable and necessary in the circumstances confirmed.

Decision date: 20 July 2023 | Panel Members: Senior Member Brett Williams, Dr Drew Dixon and Dr Margaret Gibson | Injury module: Spine; Treatment Type: Surgery

Saleh v Allianz Australia Insurance Limited [2023] NSWPICMP 342

Motor Accidents Compensation Act 1999; Review of medical assessment of whole person impairment (WPI); psychological injury; review of certificate of Medical Assessor (MA) Roberts dated 3 December 2021; MA found 8% WPI; evidence of prior psychological issues; contention as to the level of pre-accident functioning as compared to post-accident functioning; lack of evidence to substantiate any significant lack of functioning prior to accident, apart from employment capacity; Held – 17% WPI in respect of injuries caused by the motor accident (19% current WPI, less 2% pre-existing WPI); certificate of MA Roberts revoked.

Decision date: 20 July 2023 | Panel Members: Member Elizabeth Medland, Dr Paul Friend and Dr Wayne Mason | Injury module: Mental and Behavioural

Ford v QBE Insurance (Australia) Limited [2023] NSWPICMP 344

Motor Accidents Compensation Act 1999; injury on 24 February 2016 from rear end collision; dispute related to degree of permanent impairment caused by motor accident; claimant had recovered from recent L4/5 discectomy prior to motor accident with relief of left leg sciatica; post-accident MRI scan showed a significant disc protrusion at L4/5; motor accident caused further disc protrusion; claimant had a vulnerable disc owing to the previous and recent discectomy; insufficient time for the formation of scar tissue following the original back surgery and prior to the motor accident to protect the disc from reinjury; even though the accident was not severe, the claimant was suspectable to disc protrusion due to his underlying condition; aggravation of the L4/5 disc was a material cause of the need for the subsequent fusion surgery given the size of the protrusion shown in the October 2016 scan; the disc protrusion aggravated by the motor accident remained a material cause for the subsequent need for surgery as it caused subsequent back and radicular complaints; claimant assessed at Diagnosis Related Estimate (DRE) V due to ongoing radiculopathy; prior condition assessed at DRE II; Held – original assessment revoked; claimant assessed at greater than 10%

Decision date: 21 July 2023 | Panel Members: Principal Member John Harris, Dr Chris Oates and Dr Shane Moloney | Injury module: Spine

Workers Compensation Medical Appeal Panel Decisions

Robba v W Cronin & P Cronin [2023] NSWPICMP 343

Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing self-care and personal hygiene, and concentration persistence and pace; Held – Medical Assessment Certificate confirmed.

Decision date: 20 July 2023 | Panel Members: Member Richard Perrignon, Dr Graham Blom and Dr Michael Hong | Body system: Psychiatric/Psychological

Inverell Shire Council v BLP [2023] NSWPICMP 346

Workplace Injury Management and Workers Compensation Act1998; employer alleges error in calculation of whole person impairment (WPI); in the classification of psychiatric impairment rating scale (PIRS) categories of social functioning and the social and recreational activities; in the application of section 323; it also sought to rely on fresh evidence (327(b)) including surveillance of the worker taken several weeks after issue of Medical Assessment Certificate (MAC); Held – error in calculation established; no error in application of section 323; fresh evidence obtained after the assessment admitted as not previously obtainable in the circumstances and strongly suggested error; otherwise, further evidence rejected; after re-examination MAC revoked and new MAC issued.

Decision date: 21 July 2023 | Panel Members: Member Paul Sweeney, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Wolper Jewish Hospital v Bohlock [2023] NSWPICMP 347

Whether Medical Assessor (MA) erred by assessing respondent’s impairment due to scarring as 4% whole person impairment (WPI); Appeal Panel found (MA) did not err as his findings relating to the features of the appellant’s scars were best reflected by the criteria in Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 March 2021 for 3-4% WPI; Held – Medical Assessment Certificate confirmed.

Decision date: 21 July 2023 | Panel Members: Member Marshal Douglas, Dr James Bodel and Dr David Crocker | Body system: Scarring (TEMSKI), Left and Right Lower Extremity

Hall v Secretary, Department of Communities and Justice [2023] NSWPICMP 348

Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale (PIRS) category of social and recreational activities; Appeal Panel found that based on the evidence before the MA the MA’s rating was not open to be made and represented an error of clinical judgement by the MA; Held – Medical Assessment Certificate revoked.

Decision date: 24 July 2023 | Panel Members: Member Marshal Douglas, Dr Michael Hong and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

St Charbels College v Stevanovski [2023] NSWPICMP 349

Assessment of right upper extremity and cervical spine; Medical Assessor (MA) assessed impairment from a right carpal tunnel condition as well at the right shoulder; no claim made for carpal tunnel condition; Panel satisfied that the dispute between the parties was a dispute concerning the degree of permanent impairment in the right shoulder and cervical spine and the MA erred in assessing impairment that was unrelated to the injury referred for assessment; Held – Medical Assessment Certificate revoked.

Decision date: 24 July 2023 | Panel Members: Member Caroline Rimmer, Dr Margaret Gibson and Dr John Brian Stephenson | Body system: Spine and Right Upper Extremity

Lowing v Staff Australia Payroll Services Pty Limited [2023] NSWPICMP 351

Worker alleged error in mistakes by the Medical Assessor (MA) in recording the findings of an independent medical examination (IME) which led to a failure to engage with the evidence; in asserting that the movements of her upper extremities were “normal and equivalent” rather than recording the degree of movement; and in conducting an inadequate examination; Held – on a fair reading of the Medical Assessment Certificate (MAC) the MA was thoroughly conversant with the worker’s medical case; the reference to “normal” movement established that there was no restriction of movement for the purpose of establishing whole person impairment (WPI) in accordance with AmericanMedical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed 1 March 2021 (Guidelines); and the panel found no basis for the assertion of an inadequate examination; MAC confirmed.

Decision date: 24 July 2023 | Panel Members: Member Paul Sweeney, Dr Mark Burns and Dr John Brian Stephenson | Body system: Respiratory system, Left and Right Upper Extremity

Matthews v Australian Motor Homes Pty Ltd [2023] NSWPICMP 352

Appeal against finding of 0% whole person impairment (WPI) for the lumbar spine; whether Medical Assessor (MA) read all the material referred to him; whether he gave adequate reasons; Held – both medicolegal experts found a Diagnosis Related Estimate II lumbar category; presumption of regularity that administrative action done properly, including reading the material; Bojko v ICM Property Service Pty Ltdconsidered and applied; MA not required to choose between competing opinions but to form own independent opinion; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak considered and applied; however in these circumstances MA did not give adequate reasons where both experts concurred; Campbelltown City Council v Vegan and Vitaz v Westform (NSW) Pty Ltd considered and applied; Medical Assessment Certificate revoked.

Decision date: 25 July 2023 | Panel Members: Member John Wynyard, Dr Tommasino Mastroianni and Dr Roger Pillemer | Body system: Spine, Left and Right Upper Extremity

The GEO Group Australia Pty Ltd v Chalmers [2023] NSWPICMP 353

Workplace Injury Management and Workers Compensation Act1998; inmate in prison psychologically injured by a fire in his cell; whether Medical Assessor (MA) assessment of 15% erroneous; whether section 323 applies; Held – MA applied wrong test; opioid disorder and frequent incarceration past history common ground; Medical Assessment Certificate revoked and 1/5th deduction applied pursuant to section 323; Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse and Pereira v Siemens Ltdconsidered and applied.

Decision date: 26 July 2023 | Panel Members: Member John Wynyard, Dr John Baker and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Hartley v Tharawal Aboriginal Corporation [2023] NSWPICMP 354

Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing concentration persistence and pace; Held – Medical Assessment Certificate confirmed.

Decision date: 26 July 2023 | Panel Members: Member Richard Perrignon, Dr Nicholas Glozier and Dr John Baker | Body system: Psychiatric/Psychological

BGW v Constel Pty Ltd [2023] NSWPICMP 355

Whether Medical Assessor (MA) erred by making a deduction of 50% under section 323(1) for the proportion of appellant’s permanent impairment due to pre-existing conditions; whether the MA erred by not assuming, under section 323(2), that the deductible proportion was 10%; Appeal Panel found that MA had concluded that making an assumption under section 323(2) that deductible proportion was 10% would be at odds with the evidence and Appeal Panel considered MA was correct to so conclude; Held – Appeal Panel found MA did not err by assessing deductible proportion was 50%; Medical Assessment Certificate upheld.

Decision date: 26 July 2023 | Panel Members: Member Marshal Douglas, Dr Graham Blom and Dr Michael Hong | Body system: Psychiatric/Psychological

Motor Accidents Merit Review Decisions

El-bortol v Allianz Australia Insurance Limited [2023] NSWPICMR 37

Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under Division 3.3; where the insurer determined the claimant’s pre-accident weekly earnings under schedule 1 clause 4(1); where the claimant entered into a new contract of employment in the 12 months immediately before the day of the accident with the same employer; where there was a break of 6 days between the claimant’s previous contract of employment and the new contract of employment; where there was a significant increase in the claimant’s weekly earnings under the new contract of employment as a casual school teacher in comparison with the claimant’s weekly earnings as a temporary school teacher under her previous contract of employment; schedule 1 sub-clauses 4(2)(a), 4(3) and 4(2)(b) considered and applied; Held – the reviewable decision is set aside.

Decision date: 7 July 2023 | Merit Reviewer: Maurice Castagnet

Du v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 38

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of earner; schedule 1 clause 2; arrangement to undertake employment at a particular time and place; clause 2(b); pre-accident weekly earnings (PAWE) under schedule 1 clause 4(c); onus of proof; Held – the reviewable decision is affirmed.

Decision date: 14 July 2023 | Merit Reviewer: Katherine Ruschen

Singh v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 39

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; meaning of pre-accident weekly earnings; meaning of earnings; schedule 1 clause 4; self-employment; sole trader versus company; company as separate legal personality; discretionary trust; trust income; trust distribution; rental income; clause 3(3)(b); Held – the reviewable decision is set aside.

Decision date: 24 July 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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