Legal Bulletin No. 123

Issued 11 August 2023

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

Supreme Court Decision

Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909

Administrative law; judicial review; motor vehicle accident; where defendant received statutory benefits under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) for 26 weeks; where insurer declined entitlement to benefits after statutory period; where defendant successfully pursued a miscellaneous claims assessment before the Personal Injury Commission; alleged error of law, jurisdictional error and constructive failure to exercise jurisdiction; on whom the burden of proof falls where entitlements under Motor Accident Injuries Act 2017 to statutory benefits after 26 weeks are pursued before Commission; burden of proof falls to insurer; operation of res ipsa loquiter doctrine; whether inferences member drew about cause of accident impermissible; whether member failed to draw inferences which evidence required — whether errors warrant certificate to be set aside; Held — certificate set aside and matter remitted to Commission

Decision date: 3 August 2023 | Before: Schmidt AJ

Presidential Member Decision

Gimis v Tweed Shire Council [2023] NSWPICPD 44

Workers Compensation; issue estoppel and res judicata; Blair v Curran discussed and applied; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine discussed and distinguished; where the relief sought is different from that sought in the earlier proceedings; Cassegrain v Gerard Cassegrain & Co Pty Limited applied; jurisdiction of the Personal Injury Commission to determine “injury” pursuant to section 4 of the Workers Compensation Act 1987; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd applied; Held – appellant has failed to establish error on the part of the Senior Member; Senior Member’s Certificate of Determination is confirmed.

Decision date: 1 August 2023 | Before: Deputy President Elizabeth Wood

Motor Accidents non-Presidential Member Decisions

AAI Limited t/as AAMI v Cousins [2023] NSWPIC 121

Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; claimant a passenger in vehicle hit at an intersection causing significant damage; claimant suffered soft tissue injury to her lumbar spine and psychological injuries; claimant skilled as a dog groomer; injuries impacted on work capacity; claimant unable to return to pre-accident duties; settlement offer included a buffer for past and future economic loss; Held – settlement approved, parties reminded of the claimant’s entitlements under sections 3.24 and 3.26.

Decision date: 15 March 2023 | Member: Elyse White

Agno v Insurance Australia Limited t/as NRMA [2023] NSWPIC 375

Motor Accidents Compensation Act 1999; assessment of damages; liability admitted; claimant operated businesses under corporate entity; claimant assessed as having a permanent impairment in excess of 10%; neck, back, left shoulder, left hip and left wrist injuries together with psychological injury; claimant left handed; pre-accident work included working as a chef in his restaurant; no longer able to work as a chef; replacement labour engaged; insurer disputed entitlement to economic loss where company making a profit; Husher v Husher applied; Held– award of $270,000 for non-economic loss; past and future economic loss assessed on the basis of replacement labour costs; awards for other heads of damage made.

Decision date: 21 July 2023 |Senior Member: Brett Williams

Mossman v Insurance Australia Limited t/as NRMA [2023] NSWPIC 377

Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4); motorcycle being ridden by the claimant over the crest of a hill when confronted with a stationary truck with a flatbed trailer across both lanes of the roadway; claimant unable to avoid a collision with the trailer and as a consequence suffered serious injuries; insurer admitted duty of care but alleged contributory negligence on the part of the claimant; contributory negligence assessed at 0%; claimant suffered multiple rib fractures, a fracture of the left humerus, fracture of the right patella, and fracture through the right tibia mid shaft; insurer conceded claimant’s whole person impairment exceeded the threshold; claimant is a chef; claim for non-economic loss; past and future economic loss; Held – claimant is entitled to damages for non-economic loss. past and future economic loss.

Decision date: 31 July 2023 | Member: David Ford

Mitchell v Insurance Australia Limited t/as NRMA [2023] NSWPIC 380

Motor Accidents Compensation Act 1999; assessment of damages under section 94; 90-year-old; soft tissue injuries; cervical spine and right shoulder; no non-economic loss; subsequent falls, past and future care; past and future treatment; Held – damages assessed according with sub-sections 94(3) and 94(4).

Decision date: 1 August 2023 | Member: Shana Radnan

Insurance Australia Limited t/as NRMA v Hussain [2023] NSWPIC 383

Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claim for damages for past and future economic loss; no entitlement to damages for non-economic loss; where the claimant sustained injuries in a prior motor accident and a subsequent motor accident; where the claimant has completed his studies as an international student and is currently staying in Australia on a temporary post-study and work visa; whether a buffer allowance for future economic loss is appropriate in the circumstances; Held – proposed settlement of $134,500 is approved.

Decision date: 2 August 2023 | Member: Maurice Castagnet

Workers Compensation non-Presidential Member Decisions

Canute v W A Pickles (NSW) Pty Ltd ATF The William Alan Pickles Family Trust & Ors [2023] NSWPIC 376

Workers Compensation Act 1987; claim in respect of lump sum death benefit; claim for grandchild of the deceased for weekly benefits pursuant to section 25 on the basis that the deceased was ‘in loco parentis’ position; Held – the deceased was not ‘in loco parentis’ position in relation to the fourth respondent.

Decision date: 28 July 2023 | Senior Member: Elizabeth Beilby

Delaney v CSR Building Products Ltd [2023] NSWPIC 378

Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33 and medical and related expenses of past treatment including L1/2 microdiscectomy surgery pursuant to section 60; applicant sustained accepted work injury to the L5/S1 level of spine on 8 November 2021; whether the applicant also sustained injury to the L1/2 level of spine on 8 November 2021 pursuant to section 4; Held – applicant sustained injury on 8 November 2021 to the L1/2 disc in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process in the course of his employment and to which his employment was the main contributing factor pursuant to section 4(b)(ii); the past treatment referred to in the applicant’s schedule of expenses including the right L1-2 microdiscectomy performed on 14 June 2022 is reasonably necessary as a result of injury on 8 November 2021; the applicant had as a result of injury on 8 November 2021 no current work capacity and, later, current work capacity; and accordingly, the respondent is ordered to pay the costs of past treatment set out in the applicant’s schedule of expenses in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation, pursuant to section 37(1); in the amount of $1,470.96 per week from 12 May 2022 to 17 July 2022; in the amount of $128.96 per week from 18 July 2022 to 1 August 2022, and in the amount of $404.77 per week from 2 August 2022 to 19 September 2022.

Decision date: 31 July 2023 | Member: Karen Garner

Clarke v Local Farm Fresh Pty Ltd t/as Big River Milk [2023] NSWPIC 379

Claim for continuing weekly compensation and declaration that proposed surgery was reasonably necessary; whether contemporaneous clinical notes inconsistent with applicant’s statements; whether medicolegal expert opinion complies with Makita v Sprowles; whether voluntary work indicated a capacity for suitable employment: Held – reliance on clinical notes to prove a negative unsuccessful in challenging whether onus met; Qannadian v Bartter Enterprises Pty Limited considered and applied; respondent in difficult position as no expert evidence tendered on its behalf and inference taken that it would not have assisted the respondent’s case; applicant’s expert evidence acceptable; voluntary job not a real job; Wollongong Nursing Home v Dewar considered and applied; applicant’s certification of no current work capacity accepted; Nzobakenga v Costaexchange Pty Ltd and Chea v Woolworths Group Limited applied; awards made pursuant to section 37 and 38; proposed surgery reasonably necessary.

Decision date: 31 July 2023 | Member: John Wynyard

Naumovski v Eastside Formwork Pty Ltd [2023] NSWPIC 382

Claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987; respondent disputes injury to right shoulder; preliminary issue section 289A of the Workplace Injury Management and Workers Compensation Act 1998 in relation to issue of worker; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury and/or consequential injury to his right shoulder; Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Davis v Council of the City of Wagga Wagga, Email Limited (in the interests of Allianz Australia Workers Compensation (NSW) Pty Limited v Qummou and others, Briginshaw v Briginshaw, Australian Conveyor Engineering v Mecha Engineering Pty Limited, Helton v Allen, Kooragang Cement Pty Ltd v Bates, Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Owen v Motor Accidents Authority of NSW considered; Held – respondent’s application pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 for leave to rely on a previously unnotified matter is denied; the applicant sustained an injury to his right shoulder arising out of or in the course of his employment; further the applicant sustained a consequential injury to his right shoulder as a result of the injury sustained to his right knee on 8 November 2018.

Decision date: 1 August 2023 | Member: Anne Gracie

Proops v MSS Security Pty Limited [2023] NSWPIC 384

Claims for permanent impairment compensation; accepted claim for injury to upper limbs and scarring; disputed claim for consequential condition of cervical spine as a result of upper limb injuries; consideration of  Kooragang v Bates; Held – the applicant has not satisfied the onus of establishing consequential condition of his cervical spine as a result of injury to his upper limbs; remitted to President for referral to Medical Assessor in relation to upper limb injuries and scarring only.

Decision date: 2 August 2023 | Member: Diana Benk

Motor Accidents Medical Review Panel Decisions

Baaruud v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 70

Review of Certificate of Medical Assessor (MA) Christopher Grainge of 13 May 2022 finding 0% whole person impairment (WPI); neither party sought a re-examination of the claimant; Panel determined that a clinical examination of the claimant by the Panel not required. MA certified “the sleep disorder suffered by Ms Baaruud is secondary to her post traumatic stress disorder and chronic pain syndrome, and hence any WPI relating to sleep disturbance from these diagnoses should be incorporated in the WPI already determined for these issues; there is no intrinsic sleep disorder which warrants additional assessment of WPI”; the Panel found that the MA had clearly and convincingly set out his reasons for arriving at this conclusion, and had explicitly addressed the reasons why he did not adopt the methodology of WPI contended for by the claimant; Held – the Panel rejected the claimant’s contention that the assessor failed to employ Table 6 at page 143 of the American Medical Association Guides to the Evaluation of Permanent Impairment Version 4 as he was prohibited from doing so by the text of the section “Arousal and sleep disorders” at pages 143 – 144; the Panel accordingly accepted the MA’s diagnosis of sleep fragmentation and chronic hypersomnolence secondary to chronic pain and post-traumatic stress disorder for the reasons set out at paragraph 20 of page 4 of the Certificate; Certificate of MA of 13 May 2022 confirmed.

Decision date: 3 March 2023 | Panel Members: Member Robert Foggo, Dr Ian Cameron and Dr Margaret Gibson | Injury module: Spine

QBE Insurance (Australia) Limited v Dang [2023] NSWPICMP 356

The claimant suffered injury in a motor vehicle accident on 11 May 2021; assessment of threshold injury; no dispute injury to lumbar spine, cervical spine, thoracic spine and right leg were threshold injuries; parties agreed dispute limited to left shoulder injury; dispute as to causation of left shoulder injury; Medical Assessor (MA) Woo found partial thickness tendon tear of the left shoulder caused by the accident and was a non-threshold injury; Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities Panel not satisfied accident caused injury to left shoulder; no evidence of any impact to left shoulder; no contemporaneous evidence of left shoulder injury; finding of MRI conducted more than a year post accident of tear of left supraspinatus tendon inconsistent with reported absence of immediate pain or dysfunction in left shoulder; unlike acute tears chronic supraspinatus tears can occur insidiously over months or years often associated with age-related degenerative changes; on balance of probabilities no direct causal relationship between left shoulder injury and the accident; Certificate of MA revoked; the claimant did not sustain injury to the left shoulder caused by the accident.

Decision date: 25 July 2023 | Panel Members: Member Susan McTegg, Dr Mohammed Assem and Dr Margaret Gibson | Injury module: Spine, Upper and Lower Limb

Wall v QBE Insurance (Australia) Limited [2023] NSWPICMP 357

Motor Accidents Compensation Act 1999; injury on 25 April 2017 from rear end collision; treatment and care dispute; observations of inadequacies of questions such as references to “any” treatment; various opinions observed that claimant’s perception of pain was due to psychiatric condition; Panel satisfied that claimant had a genuine neck pain; motor accident aggravated underlying degenerative condition; claimant probably developed adhesive capsulitis in the right shoulder due to grossly restricted neck movements; Held – original assessment revoked; questions answered as framed.

Decision date: 25 July 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Shane Moloney | Injury module: Treatment Type: Radiological Investigations, Surgery, Chiropractic, Acupuncture, and Domestic Assistance

AAI Limited t/as GIO v Russell [2023] NSWPICMP 359

Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Wijetunga and insurer’s review under section 7.26; claimant alleged injuries to back, left knee, right hip and right shoulder; WPI assessed at 13%; application for review made on basis of causation; claimant had injured his left knee in October 2017 and was using crutch and walking stick for mobility at the time of the May 2018 motor accident; claimant pedestrian and knocked over by reversing car; claimant could not get onto examination couch; could not take his shirt off and would not demonstrate six movements of his shoulder; Held – claimant denied injury to his right hip; claimant sustained aggravation or exacerbation of the pre-existing injury which has now returned to its previous level; injury to shoulder including tears and lumbar spine injury caused; WPI of left knee is 0% on basis recovered and 0% in any event; lumbar spine Diagnosis Related Estimate (DRE) I (0%) and right shoulder 3%; range of motion method could not be used; discussion of appropriate method to be used; Certificate of MA revoked; claimant did not have WPI greater than 10%.

Decision date: 26 July 2023 | Panel Members: Member Belinda Cassidy, Dr Michael Couch and Dr Neil Berry | Injury module: Spine, Upper and Lower Limb

Seke v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 360

Motor Accident Injuries Act 2017; injury on 22 February 2021; front seat passenger; original findings by Medical Assessor (MA) accepted; original MA found threshold injuries; Prior neck and right shoulder injuries; Subsequent MRI scan showed right shoulder tear not shown in pre-accident ultrasound scan; MRI scan more accurate and sensitive than an ultrasound scan; Panel not satisfied that claimant injured right shoulder as no medical reason why front seat passenger would injure that body part; fissure described in Lumbar MRI scan fissure as a possibility; finding probably degenerative; Panel satisfied that various injuries were threshold injuries; Held – original assessment confirmed.

Decision date: 27 July 2023 | Panel Members: Principal Member John Harris, Dr Margaret Gibson and Dr Drew Dixon | Injury module: Spine, Upper and Lower Limb

McGrath v AAI Limited t/as AAMI [2023] NSWPICMP 361

Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Preston and claimant’s review under section 63; claimant alleged injuries to neck, lower back, right knee and both shoulders; WPI assessed at 0%; application for review made on basis no record of examination findings supporting dysmetria in lumbar spine (detailed examination findings recorded for cervical spine); previous assessment by MA Berry in 2019 resulted in finding of 9% WPI; no allegation of shoulder injury at that time; causation in issue; previous complaints and three and a half month delay between date of accident and first attendance on GP; Held – claimant inconsistent and memory of events not good; claimant’s evidence unreliable; Panel satisfied claimant sustained soft tissue injuries to the neck, lower back, right shoulder not left, and right knee not left; impairment assessment; neck and back Diagnosis Related Estimate (DRE) I (0%); right shoulder impairment not caused by accident (0% WPI) and right knee (2%); Certificate revoked as MA had included figure of 0% in her Certificate.

Decision date: 27 July 2023 | Panel Members: Member Belinda Cassidy, Dr Rhys Gray and Dr Geoffrey Stubbs| Injury module: Spine, Upper and Lower Limb

Workers Compensation Medical Appeal Panel Decision

Serco Australia Pty Ltd v Sryta [2023] NSWPICMP 362

Medical Assessor assessed 22% WPI in respect of a psychological injury deemed to have occurred on 12 May 2022; appellant employer sought leave to admit fresh evidence concerning the work capacity; fresh evidence from both parties admitted; Appeal Panel satisfied that the change in certification from total incapacity to two hours a day, two days a week in worker’s capacity to work was only made in order to allow him to participate in a social therapy program and such a program is a form of treatment and was not evidence of a capacity to work; Held – Medical Assessment Certificate confirmed.

Decision date: 31 July 2023 | Panel Members: Member Caroline Rimmer, Dr John Baker and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Motor Accidents Merit Review Decisions

Ariashah v Suncorp (QLD) [2023] NSWPICMR 36

Motor Accident Injuries Act 2017; claim for legal costs under section 8.10; whether claimant is entitled to recover reasonable and necessary legal costs incurred in connection with medical assessment matter (treatment and care) prior to 1 March 2021 if those costs were not “allowed by the claims assessor or court”; meaning of “reasonable and necessary costs”; assessment of reasonable and necessary costs; Held – claimant entitled to recover reasonable and necessary costs assessed at $1,826 inclusive of GST.

Decision date: 3 July 2023 | Merit Reviewer: Maurice Castagnet

Walker v QBE Insurance (Australia) Limited [2023] NSWPICMR 40

Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under Division 3.3; the meaning of pre-accident weekly earnings (PAWE); meaning of earnings; schedule 1, clause 4; self-employment; fixed versus variable business expenses; whether fixed costs are deducted from gross business profit for PAWE; whether earnings as an earner are the gross profit or net income of the business; whether PAWE can be adjusted for poor weather, flooding or COVID-19 restrictions; Allianz Insurance Australia Limited v Shahmiri considered; 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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