Legal Bulletin No. 130

Issued 29 September 2023

Welcome to the one hundred and thirtieth 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

Dimos v Gordian Runoff Limited [2023] NSWSC 1151

Administrative law; judicial review; Motor Accidents Compensation Act 1999 (NSW); insurer’s section 62 application for further assessment after earlier medical assessment made after Personal Injury Commission Act 2020 (NSW) came into force; insurer successfully applied for further assessment; operation of transitional provisions of Personal Injury Commission Act; clause 14D of Schedule 1; whether application in respect of unexercised right; whether delegate of President of Personal Injury Commission was obliged to give reasons for decision; reasons required; whether delegate gave adequate reasons; reasons inadequate; whether delegate formed opinion according to law; whether discretion exercised according to law; errors established; Civil procedure; whether summons complied with Uniform Civil Procedure Rules 2005 (NSW), rule 59.4(c) in specifying error of law or jurisdictional error; grounds advanced included that delegate’s reasons were inadequate; requirement to give reasons disputed; operation of transitional provisions raised as a result; summons compliant; Held ­– order that the delegate’s decision be set aside.

Decision date: 22 September 2023 | Before: Schmidt AJ

Pham v Quality Bakers Australia Pty Limited t/as Goodman Fielder [2023] NSWSC 897

Administrative law; judicial review; review of the decision of an Appeal Panel; where plaintiff discontinued proceedings prior to the application for judicial review; Held – summons dismissed.

Decision date: 28 September 2023 | Before: Simpson AJ

Presidential Member Decision

Hallmann v Southern Cross University [2023] NSWPICPD 57

Workers compensation; section 60 of the Workers Compensation Act 1987; ‘reasonably necessary’; application of Diab v NRMA Ltd and Rose v Health Commission; fresh or additional evidence, application of CHEP Australia Ltd v Strickland; ‘consequential condition’; unnecessary that the specific term be used as a descriptor; error within the meaning of section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; application of Raulston v Toll Pty Ltd; Held – application to rely on fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused; the Certificate of Determination dated 15 June 2022 is otherwise confirmed.

Decision date: 18 September 2023 | Before: Acting President Michael Snell

Motor Accidents non-Presidential Member Decisions

Insurance Australia Limited t/as NRMA Insurance v Marrison [2023] NSWPIC 471

This was a settlement approval of $300,000 for damages following an accident on 6 May 2020; the claimant is a serving officer with the Royal Australian Navy; the claimant was riding home from work when a collision occurred with the insured car causing a L4 compression fracture of his vertebra; liability was admitted by the insurer; the claimant had suffered microfractures to his T1, T2, T3, T6 and T9 vertebrae on 6 May 2020 in a mountain bike accident but these injuries were not made worse as a result of the accident; because of the injuries suffered by the claimant he was unable to undertake a sea posting and because of this, and also family circumstances, this will continue for the remainder of the claimant’s service; Held – that the offer of settlement was satisfactory and was approved.

Decision date: 1 September 2023 | Member: Alexander Bolton

AAI Limited t/as AAMI v Young [2023] NSWPIC 473

Motor Accident Injuries Act 2017; 49-year-old male; rider of a motorcycle involved in a  collision with the insured motor vehicle; no allegation of contributory negligence; sustained serious fractures of the right tibia and fibula resulting in multiple surgeries; claim for non-economic loss only; no claim for past or future economic loss; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).

Decision date: 11 September 2023 | Member: David Ford

AAI Limited t/as AAMI v Duardo [2023] NSWPIC 479

Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant 24 years old; sustained injuries to her ribs, spine and significant facial injuries; she developed psychological symptoms; entitlement to non-economic loss and past and future economic loss; claimant aware of rights to reasonable future treatment for the rest of her life; Held – proposed settlement of $480,000 within the range of likely potential damages should the claim proceed to assessment; settlement just, fair and reasonable; settlement approved.

Decision date: 18 September 2023 | Member: Elyse White

QBE Insurance (Australia) Limited v Chen [2023] NSWPIC 486

Motor Accident Injuries Act 2017; 32-year-old female passenger injured in a head on collision; suffered soft tissue injuries to cervical spine and psychological injury being an adjustment disorder with anxiety and depressed mood; insurer conceded claimant had sustained a non-threshold injury; claimant is employed as a school administrator; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).

Decision date: 19 September 2023 | Member: David Ford

AAI Limited t/as AAMI v Bell [2023] NSWPIC 487

Motor Accident Injuries Act 2017; claim for damages for mental harm; claimant’s partner fatally injured in a motor vehicle accident; claimant suffers from major depressive disorder with prominent disorder; claimant is a 69-year-old male retiree entitled to damages for non-economic loss only; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b)

Decision date: 19 September 2023 | Member: David Ford

Workers Compensation non-Presidential Member Decisions

Arnold v Campbelltown City Council [2023] NSWPIC 394

Lumbar spine injury; respondent denied liability; evidence weighed in the balance and on the balance of probabilities it was determined that the applicant suffered an injury consisting in the form of an aggravation, acceleration, exacerbation or deterioration of an underlying disease in his lumbar spine, to which his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration; Held – award for the applicant for weekly compensation and medical expenses.

Decision date: 8 August 2023 | Member: Jane Peacock

Jimenez v New Food Coatings Pty Ltd t/as Newly Weds Foods [2023] NSWPIC 444

Workers Compensation Act 1987; injury to the right knee disputed; proposed total right knee replacement surgery disputed; contemporaneous evidence; Nguyen v Cosmopolitan Homes; Military Rehabilitation and Compensation Commission v May; Kooragang Cement Pty Ltd v Bates; Zickar v MGH Plastic Industries Pty Ltd; North Coast Area Health Service v Felstead; and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant suffered an injury to the right knee arising out of or in the course of his employment with the respondent on 17 August 2020 within the meaning of sections 4(a) and 9A; the total right knee surgery proposed by Associate Professor Viswanathan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the total right knee replacement surgery proposed by Associate Professor Viswanathan at the gazetted rates.

Decision date: 4 September 2023 | Member: Anthony Scarcella

Oyston v Gunlake Concrete NSW Pty Ltd [2023] NSWPIC 461

Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 as a result of injury to the right upper extremity (shoulder); the applicant relied on a frank incident of injury to the right shoulder, and the ‘nature and conditions’ of his employment with the respondent employer over the period from the commencement of that employment as a cement truck driver until the date of the frank incident; the applicant also sought to amend the Application to resolve a dispute (ARD) at the hearing to include an earlier frank incident causing less serious injury to the right shoulder; the respondent conceded the later frank incident was the main contributing factor causing aggravation, acceleration, exacerbation or deterioration of a long standing degenerative condition in the right shoulder, but opposed the applicant relying on the nature and conditions of his employment, and also the applicant’s request to amend the ARD to rely on the earlier, less serious, injury to the right shoulder; Held – finding that the injury conceded by the respondent was the main contributing factor causing aggravation, acceleration, exacerbation or deterioration of a long standing degenerative condition in the right shoulder, but that the applicant failed to discharge the onus on him to show that the nature and conditions of his employment should be included with the frank injury as the main contributing factor to injury; the applicant’s request to amend the ARD to refer to the earlier, less serious, date of injury to the right shoulder rejected; the matter was referred to a Medical Assessor for assessment of whole person impairment in accordance with the above findings.

Decision date: 11 September 2023 | Member: Brett Batchelor

De La Rosa v Dominion Global Pty Ltd [2023] NSWPIC 474

Claim for permanent impairment compensation; worker contracts malaria in the course of his employment in a Papua New Guinea; he alleges that the condition of trigeminal neuralgia results from injury; employer denies liability arguing that was no adequate evidence in the scientific literature to establish a causal nexus and there were alternative causes of trigeminal neuralgia; Seltsam Pty Limited v McGuiness considered; worker’s medical evidence posited possible mechanisms for a connection between injury and trigeminal neuralgia; worker’s medical case preferred; Held – finding that trigeminal neuralgia resulted from malaria; medical dispute remitted for assessment.

Decision date: 14 September 2023 | Member: Paul Sweeney

Chand v Bunnings Group Limited [2023] NSWPIC 476

Workers Compensation Act 1987; claim for injuries to back and right leg; claim for weekly benefits compensation and proposed future treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury in accordance with section 4 on 8 March 2021; consideration of whether if so, the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment as a result of the injury (if found) on 8 March 2021; McCarthy v Patrick Stevedores No 1 Pty Limited, Maitland City Council v McInnes, Jones v Dunkel, Zickar v MGH Plastic Industries Pty Limited, Kennedy Cleaning Services Pty Limited v Petkoska, Military Rehabilitation and Compensation Commission v May, Castro v State Transit Authority (NSW), Galluzzo v Commonwealth Bank of Australia, Dayton v Coles Supermarkets Pty Ltd, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited considered; Held – the applicant sustained a personal injury to his back and right leg on 8 March 2021, arising out of or in the course of his employment with the respondent, in accordance with section 4; his employment with the respondent was a substantial contributing factor to the injury in accordance with section 9A; the surgery proposed for the applicant by Dr New (a bilateral L4/5 and L5/S1 decompression, laminotomy and neurolysis and right L5/S1 disc excision) is reasonably necessary medical treatment for him as a result of his injury on 8 March 2021; awards for the applicant pursuant to section 37 from 22 February 2023, and pursuant to section 60 of the Act; specific award that the respondent pay the costs of and incidental to the surgery proposed for the applicant by Dr New.

Decision date: 15 September 2023 | Member: Gaius Whiffin

Wyborn v Integrated Steelmill Services Pty Lte [2023] NSWPIC 478

Workers Compensation Act 1987; the applicant worker sought compensation pursuant to section 60 for the cost of left total knee replacement surgery for a condition in that knee claimed to be consequent upon an undisputed injury to the lumbar spine; the applicant claimed that the condition in the knee resulted from a change in gait due to the lumbar spinal injury; the respondent employer resisted the claim on the basis that that condition in the knee resulted from a pre-existing degenerative disease in the left knee and not a change in gait; Held ­– finding that the applicant did experience a change in gait as a result of the injury to the lumbar spine, as a consequence of which he experienced symptoms in his left knee; finding that the condition in the left knee was consequent upon the injury to the lumbar spine; the total left knee replacement surgery found to be reasonably necessary as a result of injury to the lumbar spine; pursuant to section 60 the respondent ordered to pay for the costs of and incidental to the total knee replacement surgery.

Decision date: 15 September 2023 | Member: Brett Batchelor

Burrell v Marble Group Pty Ltd [2023] NSWPIC 481

Workers Compensation Act 1987; expenses for right knee arthroscopy; medical evidence with respect to material contribution; Murphy v Allity Management Services Pty Ltd considered; Held – award for the applicant pursuant to section 60.

Decision date: 18 September 2023 | Member: Diana Benk

Guarino v Guideline (ACT) Pty Ltd [2023] NSWPIC 482

Workplace Injury Management and Workers Compensation Act 1998; liability was declined by the insurer on the grounds the applicant had not complied with the provisions of section 261; Held – the applicant’s failure to make a claim within time was occasioned by ignorance, mistake or other reasonable cause.

Decision date: 18 September 2023 | Member: Diana Benk

Cizmar v D&P SPECIALISTS PTY LTD [2023] NSWPIC 483

Claim for whole person impairment; dispute as to entitlement for consequential complex regional pain syndrome (CRPS) arising out of medical treatment, an injection, for an injury suffered on 19 April 2019; Held – award in favour of the applicant in respect of a consequential condition of CRPS arising from the medical treatment, an injection, undergone by the applicant for treatment of the injury; lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment.

Decision date: 19 September 2023 | Member: Lea Drake

Bradley v ASAP Direct Pty Ltd & Ors [2023] NSWPIC 485

Application for lump sum death benefit; liability to pay compensation accepted; meaning of “divorced spouse”; Held – orders with respect to dependants, apportionment of the lump sum, interest and management fees.

Decision date: 19 September 2023 | Member: Rachel Homan

Doyle v State of New South Wales (Hunter New England Local Health District) [2023] NSWPIC 490

Workers Compensation Act 1987; claim for weekly benefits for two closed periods as a result of aggravation, acceleration, exacerbation or deterioration of disease, causing psychological/psychiatric injury; respondent disputed injury, including that “real events” occurred; that employment was the main contributing factor to a disease injury; and that the applicant was incapacitated for work; applicant undertook university studies and now employed as a registered nurse; respondent withdrew reliance on a defence to the claim pursuant to section 11A; consideration of Attorney General’s Department v K, AVB v AW, and Wollongong Nursing Home Pty Ltd v Dewar; Held – applicant sustained injury to which employment was the main contributing factor; applicant was not incapacitated for work during periods for which weekly benefits claimed; award for the respondent.

Decision date: 20 September 2023 | Senior Member: Kerry Haddock

Chong v Zetciti WP Pty Ltd & Ors [2023] NSWPIC 491

Claim by parents and sisters of deceased worker for lump sum death benefit and interest; worker suffered from Brugada syndrome; worker was employed as a pick packer and sustained a heart attack injury having run after shoplifters who had stolen from the first respondent’s business; first respondent disputed injury; substantial contributing factor to injury; main contributing factor to injury; that the worker’s employment gave rise to a significantly greater risk of the heart attack than had he not been employed in employment of that nature; and that the worker’s death resulted from a work-related injury; consideration of Rail Services Australia v Dimovski & Anor, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, EMI Australia Limited v Bes, Renew God’s Program Pty Ltd v Kim, SB v XFPL, De Silva v Secretary, Department of Finance, Services and Innovation, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Tarry v Warringah Shire Council, Zinc Corporation Ltd v Scarce, Kasim v Busways Blacktown Pty Ltd,and Secretary, Department of Communities and Justice v Galea; Held – worker sustained personal injury (heart attack injury) arising out of or in course of employment, to which employment was a substantial contributing factor; employment did not give rise to a significantly greater risk of the heart attack than had the worker not been employed in employment of that nature; the worker’s death did not result from work-related injury; award for first respondent.

Decision date: 20 September 2023 | Senior Member: Kerry Haddock

Bunfield v State of New South Wales (NSW Police Force) [2023] NSWPIC 492

Workplace Injury Management and Workers Compensation Act 1998; applicant sought reconsideration of Certificate of Determination (COD) and referral to the President for referral to a Medical Assessor pursuant to section 329, for assessment of whether he is a worker with “high needs”; applicant has undergone spinal surgery since issue of previous Medical Assessment Certificate (MAC); applicant now has higher assessment of whole person impairment than assessed in the previous MAC; respondent did not consent to the rescission of the COD or referral to the President; consideration of sections 327, 329, and 322A; and section 57 of the Personal Injury Commission Act 2020; consideration of Sleiman v Gadalla Pty Ltd, BEX v Koskela Pty Limited, Lazio Formwork Pty Ltd v Kelly and Kelly v Lazio Formwork Pty Ltd, Samuel v Sebel Furniture Limited, Railcorp NSW v Registrar of the WCC of NSW,and Galea v Ralph Symonds Pty Ltd; Held – COD revoked; matter remitted to the President to determine whether it can be referred for a further assessment of permanent impairment as provided for by section 329 (1).

Decision date: 20 September 2023 | Senior Member: Kerry Haddock

Motor Accidents Medical Review Panel Decisions

Insurance Australia Limited t/as NRMA Insurance v Youssef [2023] NSWPICMP 448

Motor Accident Injuries Act 2017; the claimant suffered injury on 17 May 2020 when her vehicle was struck on its right side within a roundabout by the insured vehicle; liability for statutory benefits beyond 26 weeks denied on the basis of threshold injury to lumbar spine; Panel requests multipositional MRI lumbosacral spine; Panel finds L5 lumbar radiculopathy on the basis of two clinical signs (calf wasting and L5 dermatomal sensory loss); finds referred injury to lumbar spine is not a threshold/minor injuries; Held – original certificate confirmed.

Decision date: 8 September 2023 | Panel Members: Member Gary Victor Patterson, Dr Drew Dixon, and Dr Thomas Rosenthal | Injury module: Spine, Upper and Lower Limb

Insurance Australia Limited t/as NRMA Insurance v Wenham [2023] NSWPICMP 449

Motor Accident Injuries Act 2017; claimant suffered injury on 6 November 2019 when the insured vehicle struck his vehicle head on; air bags deployed; dispute about the assessment of permanent impairment to the cervical spine and left knee; parties accepted previous assessments of the right shoulder (4%) and thoracic spine (0%); claimant re-examined by Review Panel; examination finding for the cervical spine was DRE Category 1 (0%) and finding for the left knee was 2%; assessments of right shoulder and left knee combined to give rise to whole person impairment of 6%; Held – original assessment revoked; finding made that the claimant was below the threshold for permanent impairment.

Decision date: 8 September 2023 | Panel Members: Member Maurice Castagnet, Dr Geoffrey Stubbs, and Dr Mohammed Assem | Injury module: Spine, Upper and Lower Limb

QBE Insurance (Australia) Limited v Sukkar [2023] NSWPICMP 450

The claimant sustained injury when thrown from his motorbike on 15 December 2017; history of chronic low back pain; Medical Assessor (MA) Wijetunga certified L4/5 anterior lumbar interbody fusion surgery was caused by the accident and was reasonable and necessary in the circumstances; Held – accident aggravated or exacerbated the underlying back condition, particularly the L4/5 disc pathology; accident was a material contribution to the need for treatment to the lower back; surgery does relate to the injury caused by the accident; surgery not reasonable and necessary in the circumstances where no demonstrable radiculopathy or demonstrable instability; surgery proposed would not relieve any nerve root foraminal stenosis at L4/5, any lateral recess stenosis at L5/S1 or disc protrusion at L3/4; having regard to surveillance footage Panel not satisfied lower back condition has significantly impacted on activities of daily living such that the proposed surgery is necessary to improve quality of life; certificate of MA Wijetunga revoked.

Decision date: 12 September 2023 | Panel Members: Member Susan McTegg, Dr Drew Dixon, and Dr Shane Moloney | Injury module: Treatment Type: Surgery

QBE Insurance (Australia) Limited v Zadeh [2023] NSWPICMP 451

The claimant suffered injury on 1 April 2019; the dispute related to causation of right-sided hearing loss and tinnitus; claimant confirmed that he did not suffer any head trauma; also confirmed that his airbags did not deploy, thus absence of loud noise; Held – Panel not satisfied that tinnitus, loss of hearing in right ear were caused by subject motor accident; no need to decide whether threshold injury; the Panel revokes the certificate dated 2 December 2022.

Decision date: 13 September 2023 | Panel Members: Member Gary Victor Patterson, Dr Brian Williams, and Dr Margaret Gibson | Injury module: Treatment Type: Surgery

Sills v QBE Insurance (Australia) Limited [2023] NSWPICMP 452

Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 5 March 2020; Medical Assessor (MA) Gothelf found the following injuries were threshold injuries; injury to the cervical spine was a threshold injury because he was unable to find two or more signs of radiculopathy; Held – on examination claimant not able to establish two or more signs of radiculopathy; claimant asked to provide imaging for review; imaging demonstrated disc protrusion which appeared to be acute consistent with symptoms of left arm radicular pain reported by claimant; non-threshold injury; certificate of MA Gothelf revoked.

Decision date: 13 September 2023 | Panel Members: Member Susan McTegg, Dr Shane Moloney, and Dr Thomas Rosenthal | Injury module: Spine

Belevski v Allianz Australia Insurance Limited [2023] NSWPICMP 453

Claimant was a front seat passenger in a car which collided at an intersection on its left-hand passenger side; injuries reported; left arm and wrist; post-traumatic stress disorder and other psychological injuries; Held – Review Panel revoked the original certificate of the Medical Assessor; finds that the claimant has not reached maximum medical improvement and so declined to make an assessment of the claimant’s whole person impairment (WPI); Review Panel recommended that the claimant be referred to a consultant psychiatrist for antidepressant therapy and ongoing treatment; parties have liberty to apply to the Panel after the claimant has commenced treatment and in the opinion of her treating doctors has reached maximum medical improvement; Panel declines to reassess the claimant’s WPI until after she had received psychiatric treatment and that her condition has stabilised.

Decision date: 13 September 2023 | Panel Members: Member Ray Plibersek, Dr Alexey Sidorov, and Dr Gerald Chew | Injury module: Mental and Behavioural

Workers Compensation Medical Appeal Panel Decisions

Langley v Trustees of the Roman Catholic Church for the Diocese of Wollongong [2023] NSWPICMP 454

Appeal from 19% whole person impairment assessment in psychological injury case; whether Medical Assessor (MA) had erred in respect of the degree of impairment in self-care and personal hygiene, concentration persistence and pace, and employability; whether assessment made regarding transitory place of assessment; whether MA comments taken out of context; whether caring for ill mother equated to an ability to earn; MA noted that appellant temporarily in New Zealand caring for her terminally ill mother; his assessment regarding self-care related to appellant's usual circumstances in Australia; assessment confirmed; grounds selective regarding concentration persistence and pace; read as a whole assessment no more than a difference of opinion; appellant was caring for ill mother with the assistance of her sister and domiciliary assistance; facts not consistent with capacity to earn; combination of history since 2015 injury and diagnosis demonstrated error; Held – Medical Assessment Certificate revoked and 22% substituted.

Decision date: 13 September 2023 | Panel Members: Member John Wynyard, Dr Douglas Andrews, and Dr Michael Hong | Body system: Psychiatric/Psychological

Pearce v Secretary, Department of Communities and Justice [2023] NSWPICMP 455

Workplace Injury Management and Workers Compensation Act 1998; appeal against 10% assessment for psychological injury; whether additional evidence should be admitted; whether Medical Assessor (MA) reasoning unsupportable and factually incorrect; additional evidence admitted, observations regarding Luck v Workers Compensation Nominal Insurers & Ors and contrast between sections 327(4)(b) and 328(3); fresh statement accepted; MA failure to engage with relevant evidence; shorthand reference to Member’s decision factually incorrect and infected reasons generally; MA history contradicted by appellant; MA referred to incorrect Guides in Table 2 Certificate; Held – Medical Assessment Certificate revoked.

Decision date: 14 September 2023 | Panel Members: Member John Wynyard, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychiatric/Psychological

Lane v AM Fretwell & MS Fretwell [2023] NSWPICMP 456

Appeal against assessment of 0% whole person impairment (WPI) in the appellant’s thoracic spine; incorrect criteria and demonstrable error; fresh evidence not admitted; allegation that Medical Assessor failed to have regard to radiology demonstrating displacement at the appellant’s thoracic spine transverse process fractures; error found based on 12 June 2014 CT radiology; Panel assessed 5% WPI in the appellant’s thoracic spine based on clause 4.31 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and Table 15-4 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; Held – Medical Assessment Certificate revoked and new certificate issued.

Decision date: 14 September 2023 | Panel Members: Member Gaius Whiffin, Dr Gregory McGroder, and Dr Drew Dixon | Body system: Spine, Left Upper Extremity, and Scarring (TEMSKI)

LWB Disability Services South Limited v Apps [2023] NSWPICMP 457

Assessment of permanent impairment resulting from injury respondent suffered to cervical spine; respondent had cervical laminoforaminotomy shortly after suffering injury as treatment for her injury; substantial degeneration in cervical spine was found at surgery and in radiological investigation done before surgery; respondent continued to suffer symptoms and had clinical signs of radiculopathy after surgery and at time of assessment; Medical Assessor (MA) found that no proportion of respondent’s permanent impairment was due to pre-existing condition; Appeal Panel held MA was wrong to so find; Held – Medical Assessment Certificate revoked.

Decision date: 15 September 2023 | Panel Members: Member Marshal Douglas, Dr Tommasino Mastroianni, and Dr Drew Dixon | Body system: Spine and Scarring

Howe v Mullane Construction Plumbing Pty Ltd [2023] NSWPICMP 458

Appeal from assessment of whole person impairment in respect of the right knee and scarring; whether the assessor applied the TEMSKI criteria in respect of scarring; whether he failed to consider or assess ligament laxity in the right knee; whether he failed to consider or assess crepitus or arthritis of the knee; Held – Medical Assessment Certificate revoked and replaced.

Decision date: 15 September 2023 | Panel Members: Member Richard Perrignon, Dr Mark Burns, and Dr Drew Dixon | Body system: Right Lower Extremity and Scarring

Pusell v Seek Learning Pty Ltd [2023] NSWPICMP 459

Assessment of permanent impairment of appellant resulting from psychological injury; appellant submitted that Medical Assessor (MA) erred and applied incorrect criteria with respect to the MA’s ratings in psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel, social functioning, and concentration, persistence and pace; Appeal Panel found that it was open to the MA to rate the appellant’s impairment as he did in all the PIRS categories except social and recreational activities; Appeal Panel found error in MA’s rating of appellant’s impairment in social and recreational activities; Held – Medical Assessment Certificate revoked.

Decision date: 18 September 2023 | Panel Members: Member Marshal Douglas, Dr Douglas Andrews, and Dr Nicholas Glozier | Body system: Psychiatric/Psychological

Stefanutti Construction Pty Ltd v MacDonald [2023] NSWPICMP 460

Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s conclusion that the respondent did not have a pre-existing lumbar spine condition was contrary to the evidence; Appeal Panel held that a radiological investigation done shortly after respondent suffered injury and findings surgeon made at surgery demonstrated respondent had pre-existing lumbar degeneration at the time he suffered injury; Appeal Panel further held that a proportion of the respondent’s permanent impairment from his injury was due to that pre-existing degeneration such that a deduction under section 323(1) was required; Held – Medical Assessment Certificate revoked.

Decision date: 19 September 2023 | Panel Members: Member Marshal Douglas, Dr Drew Dixon, and Dr James Bodel | Body system: Spine and Right Upper Extremity

Asbury v Donhad Pty Ltd [2023] NSWPICMP 461

The appellant suffered an accepted right knee injury in 2003; in 2014 the appellant underwent a total knee replacement and further arthroscopic surgery in 2019; in 2020 the Medical Assessor (MA) assessed that the impairment was not fully ascertainable; the claimant subsequently made a claim for permanent impairment based on an updated qualified opinion; the respondent’s qualified doctor also assessed permanent impairment; the appellant alleged that he suffered a further consequential condition in 2022 to the right shoulder; in 2023 the MA reconsidered the Medical Assessment Certificate (MAC) and determined that impairment was fully ascertainable; that determination was made in the absence of an examination and based on the recent qualified opinion; reasons of MA showed that he agreed with opinions of qualified doctors; otherwise no medical dispute and reasons sufficient; Vitaz v Westform (NSW) Pty Ltd applied; right shoulder condition not before MA as not part of medical dispute and liability dispute required determination by Member; Skates v Hills Industries Ltd and State of New South Wales v Bishop referred to; no requirement to conduct medical examination; examination unnecessary based on the medical evidence; Held ­– MAC confirmed.

Decision date: 20 September 2023 | Panel Members: Principal Member John Harris, Dr James Bodel, and Dr David Crocker | Body system: Right Lower Extremity

Buttenshaw v CASPA Services Ltd [2023] NSWPICMP 462

The appellant submitted that the Medical Assessor erred in his assessments in respect of a number of the psychiatric impairment rating scale (PIRS) categories; the Panel agreed and a re-examination took place; the Panel found similar assessments in some categories but not all; Held – Medical Assessment Certificate revoked.

Decision date: 21 September 2023 | Panel Members: Member Deborah Moore, Dr Nicholas Glozier, and Dr Michael Hong | Body system: Psychiatric/Psychological

Motor Accidents Merit Review Decisions

Allen v AAI Limited t/as GIO [2023] NSWPICMR 48

Motor Accident Injuries Act 2017; costs; reasonable and necessary costs; under schedule 2(1) (aa); statutory benefits; permanent impairment and treatment disputes; section 3.27; regulated costs; damages claim resolved; on the papers; correct and preferable; claimant presses for payment of 50% of disbursements which claimant submits were referable in equal amounts to settled damages claim and the treatment dispute, which is a statutory matter under clause 8.10 of the Motor Accident Injuries Regulation 2017; insurer's submits disbursements were resolved on an inclusive of costs basis in the damages settlement; Merit Reviewer does not have jurisdiction to assess and award legal costs for a permanent impairment dispute; permanent impairment application costs ‘dispute’ cannot be referred to the Commission; Held – Merit Reviewers do not have jurisdiction to determine costs dispute connected with whole person impairment assessment; application is without substance because the matters in dispute have been resolved between the parties; proceedings dismissed under section 54(b) of the Personal Injury Commission Act 2020 and Rule 77(b)(iv) of the Personal Injury Commission Rules 2021.

Decision date: 8 September 2023 | Merit Reviewer: Terence O’Riain

Abbott v QBE Insurance (Australia) Limited [2023] NSWPICMR 49

Motor Accident Injuries Act 2017; pre-accident weekly earnings, schedule 1(4)(1); sole trader; business income; whether sufficient evidence of business expenses; whether financial records unreliable; whether Australian Taxation Office small business benchmark should be adopted to calculate business expenses; onus of proof; Held – the reviewable decision is set aside.

Decision date: 20 September 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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